UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
December 11, 2006
JANE DOE AND JOHN DOE, PLAINTIFFS,
JAMIE DEL RIO, INDIVIDUALLY AND AS OFFICER; VINCENT KONG, INDIVIDUALLY AND AS OFFICER; STEVEN BOBBETT, INDIVIDUALLY AND AS OFFICER; SCOTT BRADY, INDIVIDUALLY AND AS OFFICER; RAYMOND KELLY, INDIVIDUALLY AND AS COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT; AND CITY OF NEW YORK, DEFENDANTS.
The opinion of the court was delivered by: Gerard E. Lynch, District Judge
OPINION AND ORDER
In this civil rights action, plaintiffs Jane and John Doe seek damages from defendant police officers and the City of New York for allegedly egregious acts of police brutality and abuse. They have brought the suit pseudonymously, with the permission of a judge of this court obtained ex parte before filing, contending that their interests in privacy outweigh the normal presumption that suits be brought in the parties' proper names. Defendants now move to revoke this permission and require the caption to reflect the true names of the plaintiffs. The motion will be granted.
The complaint in this case alleges the following facts.*fn1 Plaintiffs, a married couple, were accosted by plainclothes police officers late at night on February 20, 2005. Both plaintiffs were recent law school graduates at the time, though not yet admitted to the bar. The officers demanded John Doe's identification and wallet. When plaintiffs, believing they were being robbed, demanded to see badges or identification, the officers threw John Doe first against a wall, then to the ground, injuring him.
At this point, a marked police car containing several uniformed officers, including defendant Scott Brady, a sergeant, arrived on the scene. Brady and the other defendant officers then placed John Doe under arrest and drove him to a police precinct, where he was further beaten into unconsciousness.*fn2 Jane Doe was left on the street, despite her protests that she was left without means of transportation and that her husband was holding their money, cell phone, and apartment keys.
Jane Doe eventually made her way to the police station, where she sought the release of her husband. Although this request was not granted, Brady told her that he would direct the arresting officers to reduce the charges against John Doe, and offered to drive Jane Doe to her apartment. Upon arrival, Brady persuaded Jane Doe to admit him to her apartment, where he poured alcoholic drinks for them. Brady then pulled Jane Doe to him and "fondl[ed] her breasts, arms, neck and back, kissing her, and rubbing his body against her," despite her physical resistance. (Compl. ¶¶ 45-46.) Brady eventually desisted and left the apartment, though the next day he telephoned Jane Doe several times, leaving threatening voicemail messages.
John Doe was charged in criminal complaints with public lewdness, assault, and resisting arrest. The charges eventually were dismissed on speedy trial grounds. After complaints to the police department resulted in no disciplinary action against the defendant officers, plaintiffs filed this lawsuit. Defendants now move to compel the suit to be brought in plaintiffs' true names.
I. Legal Standards
Rule 10(a) of the Federal Rules of Civil Procedure expressly requires that civil actions be brought in the true name of the plaintiffs, providing that every pleading shall carry "the title of the action," and that in the complaint such title "shall include the names of all the parties."*fn3 This rule, moreover, has constitutional overtones. "Plaintiffs' use of fictitious names runs afoul of the public's common law right of access to judicial proceedings," Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000), a right that is supported by the First Amendment, U.S. Constit. amend. I. See also Doe v. Deschamps, 64 F.R.D. 652, 653 (D. Mont. 1974) ("[T]he public has a right of access to the courts. Indeed, lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties.").
Courts, therefore, begin with a presumption against anonymous or pseudonymous pleading. See, e.g., Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992) (weighing the plaintiff's interest in pseudonymity against the "constitutionally-embedded presumption of openness in judicial proceedings"). While our Court of Appeals has not specifically addressed the issue of pseudonymous pleadings, it has emphasized in other contexts the "presumption of access" to judicial proceedings, noting that this presumption "is based on the need for federal courts . . . to have a measure of accountability and for the public to have confidence in the administration of justice . . . . [P]ublic monitoring is an essential feature of democratic control." United States v. Amodeo, 71 F.3d 1044, 1048 (2d. Cir. 1995). The Second Circuit has instructed that "the weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts." Id. at 1049. Information most clearly due for disclosure includes any "document which is presented to the court to invoke its powers," id. at 1050, a category encompassing complaints. Requiring a plaintiff to place his or her name on the complaint serves the constitutional goal of enabling public monitoring of the courts: The press and public can hardly make an independent assessment of the facts underlying court cases, or even assess judicial impartiality or bias, without knowing who the litigants are.
Despite this presumption against anonymous or pseudonymous pleading, it is common ground that this presumption can be overcome, and that courts have discretion to permit such pleading in appropriate circumstances. See, e.g., James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) ("The decision whether to permit parties to proceed anonymously at trial is one of many involving management of the trial process that for obvious reasons are committed in the first instance to trial court discretion."). The weight of the presumption of openness is such, however, that courts have granted requests for pseudonymity only "in limited 'matters of a sensitive and highly personal nature.'" Heather K. v. City of Mallard, 887 F. Supp. 1249, 1255 (N.D. Iowa 1995), quoting Deschamps, 64 F.R.D. at 653. As the parties here agree, such matters are "exceptional" (P. Mem. 6, quoting America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 363 (2001); D. Mem. 3, citing Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992)).
In deciding whether to permit pseudonymous pleading, courts must balance "the plaintiff's right to privacy and security against the dual concerns of (1) the public interest in identification of litigants and (2) the harm to the defendant stemming from suppression of plaintiff's name." Smith, 105 F. Supp. 2d 40, 44 (E.D.N.Y. 1999) (internal quotation marks and citation omitted). "The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." Free Speech v. Reno, 98 Civ. 2860 (MBM), 1999 WL 47319, at *2 (S.D.N.Y. Feb. 1, 1999) (internal quotation marks and citations omitted). In undertaking this balance, courts have considered such factors as (1) whether the plaintiff is suing the government or a private person; (2) whether the plaintiff would be compelled to disclose intimate information; (3) whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; (4) whether the plaintiff would risk injury if identified; (5) whether the party defending against a suit brought under a pseudonym would thereby be prejudiced; (6) the ages of the parties whose identity is to be suppressed; (7) the extent to which the identity of the litigant has been kept confidential; (8) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities; and (9) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.*fn4
These factors function in different ways. Several of them constitute specific aspects of a plaintiff's potential privacy interests. Three of the factors -- the need to protect intimate information, the risk of injury, and the risk of disclosure of putatively illegal conduct -- are different reasons why privacy may be important to a particular litigant.*fn5 Where one or more particular interests in privacy are present in a case, the weight to be attached to those interests may vary. The risk of injury may be physical or psychological, greater or less, more or less likely.*fn6 The intimacy of the facts to be disclosed may or may not rise to the level of "utmost intimacy" that some courts have suggested is required. Free Speech, 1999 WL 47319 at *2. Some of the factors mentioned affect the weight of the privacy interest involved. The age of the parties is such a factor; courts have been readier to protect the privacy of infant plaintiffs than of adults, see, e.g., James, 6 F.3d at 241; Doe v. Stegall, 653 F.2d 180, 186 (4th Cir. 1981), whether because children are conceived as more vulnerable or because the child whose privacy is at stake has not chosen for himself or herself to pursue the litigation. The extent to which the plaintiff's identity has been kept confidential may also affect the weight of the privacy interest; the plaintiff's interest in anonymity is weaker where anonymity has already been compromised.*fn7
Other listed factors go more to the weight of the countervailing interest in open judicial proceedings. Judicial proceedings are an aspect of governance and thus should be open to public scrutiny in a democratic society. Yet while this interest is significant enough in itself to create a presumption in favor of disclosure, certain factors might affect the weight of the interest in openness in particular cases. For instance, when a plaintiff challenges governmental or pseudogovernmental action, the judicial process serves as a significant check on abuse of public power. Thus, as the courts have noted, it is in the public interest that the price of access to the courts not be too high. New York Blood Center, 213 F.R.D. at 112-13. Where litigants risk public scorn or even retaliation if their identities are made public, unpopular but valid complaints may not be pursued. See, e.g.. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). The value of open proceedings disappears when there are no proceedings to be had.
Moreover, where a lawsuit is brought solely against the government and seeks to raise an abstract question of law that affects many similarly situated individuals, the identities of the particular parties bringing the suit may be largely irrelevant to the public concern with the nature of the process. See, e.g., Free Speech, 1999 WL 47310 at *2; Provident Life, 176 F.R.D. at 467. The particular identity of Roe in Roe v. Wade has little bearing on the nature of the dispute or the merits of the case.*fn8
There is a significant interest in open judicial proceedings even in ordinary civil litigation beteween private parties. Private civil suits, individually and certainly in the aggregate, do not only advance the parties' private interests, but also further the public's interest in enforcing legal and social norms. Further, where individual defendants are sued based not on abstract challenges to public policies but rather with regard to particular actions and incidents, open proceedings nevertheless benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication. Courts have expressed concern that maintaining a plaintiff's anonymity could "unfairly impede defendant's ability to impeach the plaintiffs' credibility" through cross examination and introduction of personal evidence at trial. James, 6 F.3d at 241; see also Doe v. Indiana Black Expo, Inc., 923 F.Supp. 137, 142 (S.D. Ind. 1996). Moreover, concealing the name of a party could deprive a litigant and the court of the chance that a yet unknown witness would, upon learning that fact about the case, know to step forward with valuable information about the events or the credibility of witnesses. See Richmond Newspapers, Inc. v. Virginia, 488 U.S. 555, 596-97 (1980) (Brennan, J., concurring) ("Public trials come to the attention of key witnesses unknown to the parties."); see also San Bernadino County Dep't of Pub. Soc. Servs. v. Superior Court, 283 Cal. Rptr. 332, 341 (Cal. Ct. App. 1991) ("open proceedings discourage perjury and might encourage other witnesses to come forward which in turn leads to more accurate fact-finding"). Where the defendants' identities are known, but not the plaintiffs', information about only one side may thus come to light.
Exercising the discretion to permit pseudonymous pleading, then, requires a careful and contextual examination of the circumstances of particular cases.
II. The Standards Applied
Plaintiffs' case for pseudonymity rests on the privacy interests claimed by Jane Doe, who alone alleges facts of a distressing, sexual nature. Plaintiffs do not argue that John Doe has an interest in anonymity in his own right. Individuals alleging police brutality or false arrest routinely bring such cases in their own names, and the events surrounding such accusations, while sometimes embarrassing or traumatic for the victims of assault, are routinely disclosed in public proceedings without any contention that such matters are the sort of intimate or private details that create an exception to the generally public nature of litigation.
Jane Doe's claimed privacy interests consist of two types: an interest in avoiding exposure because of the intimacy of the matters involved, and an interest in mitigating injury that would result from her public identification.*fn9
A. Intimacy of Matters
Plaintiffs claim that the nature of sexual assault, as a general matter, is intrinsically private. As another judge of this court has already observed, "whether the victim of a sexual assault may prosecute a civil suit for damages under a pseudonym" is a "difficult question." Shakur, 164 F.R.D. at 360. Historically, an exaggerated concern for female chastity and a regrettable inclination to blame the victim for sexual assaults, along with society's general respect for sexual privacy, have resulted in an atmosphere in which victims of sexual assault may experience shame or damage to reputation. It would be callous to pretend that this atmosphere has entirely dissipated, or to insist that victims of such assault lack privacy interests because most people today understand that the attacker, not the victim, should be stigmatized and ashamed.
Nevertheless, although courts have granted pseudonymity largely or merely because of the sensitive nature of, and stigma attached to, the subject matter in certain cases,*fn10 anonymous pleading has frequently been rejected in cases alleging sexual assault.*fn11 The pattern is far from universal, however. See, e.g., Smith, 105 F. Supp. 2d 40. The divergence of outcomes in these cases reemphasize that there is unlikely to be a categorical answer to the question of anonymity across all civil cases involving sexual assault. Discretion must be exercised on a case-by-case basis, depending on the particular circumstances before the court. Smith illustrates the need for such careful analysis of the factual record. In Smith, the court reversed its initial denial and granted plaintiff's request on reconsideration, after plaintiff presented particularized evidence of possible psychological harm from being identified. The court deemed plaintiff's allegations likely to prompt intrusion into "matters of utmost privacy" and "cause social stigmatization and mental anguish," but it required a particularized showing of the harm such intrusiveness could cause before deciding to override the presumption of disclosure. Id. at 42.
While there may be circumstances where the sensitivity of the subject matter is so great as in itself to justify pseudonymity without a specific showing of harm, this case, like Smith, is not of such extreme sensitivity. Plaintiffs allege that defendant Brady "pulled plaintiff Jane Doe towards him and attacked her sexually, by fondling her breasts, arms, neck and back, kissing her, and rubbing his body against her." (Compl. ¶ 45.) The Court is loath to weigh degrees of violation, and does not minimize the wrongfulness of the acts alleged or the suffering of anyone subjected to them; there is no such thing as a "mere" or "minor" forcible indignity. Nevertheless, there are degrees of abuse, and the actions alleged here are no more intimate than those alleged in hundreds of sexual harassment cases that are prosecuted openly in the victims' names every day in our courts. The facts of this case are not the sort of exceptional circumstances that in and of themselves justify overriding the constitutional presumption of openness.
That the plaintiffs claim the alleged incident has placed a strain on their marriage adds little to their argument. Plaintiffs inappositely cite Griswold v. Connecticut, 381 U.S. 479 (1965), which, like other prominent substantive due process decisions such as Lawrence v. Texas, 539 U.S. 558 (2003), and Roe v. Wade, 410 U.S. 113 (1973), prohibit state interference with private autonomy in connection with sexual relationships.*fn12 These cases provide no support for a right to avoid public knowledge of possibly embarrassing facts of plaintiffs' marital relationship. The marital relationship is not, in itself, a matter of "utmost intimacy," Southern Methodist University, 599 F.2d at 713, warranting the grant of pseudonymity. Loss of consortium claims involving these sorts of intimate facts are common in tort cases, and plaintiffs routinely seek attendant damages in their own names. Allowing anonymity simply because intimate facts of a marital relationship are relevant to a plaintiff's claims would render anonymous pleading commonplace, rather than exceptional.
B. Risk of Injury
Plaintiffs further claim that Jane Doe experienced psychological harm as a result of the alleged sexual assault and that disclosure of her identity in connection with these facts would exacerbate that harm. In support, they submit a letter from a social worker who purports to have treated Jane Doe for psychological consequences including Post-Traumatic Stress Disorder ("PTSD") and depression. (See Kubitschek Decl. Ex. 1.)*fn13 Evidence of this type proved persuasive in Smith, 105 F. Supp. 2d 40, and this Court agrees that psychological harm is a class of injury that could justify pseudonymous litigation. Yet this case is significantly distinguishable from Smith.
In Smith, plaintiff submitted her own sworn statement attesting to the likelihood of harmful psychological and emotional consequences if she were forced to identify herself, 105 F. Supp. 2d at 43 (see citations to submissions), which plaintiffs here have not done. More important, however, plaintiff's supporting medical submission in that case, based on a diagnosis of dissociative identity disorder, predicted a consequence that would specifically result from public disclosure of plaintiff's name: "[P]roceeding publicly would cause [plaintiff] to decompensate psychologically to a point at which she could not . . . pursue the current legal process and would suffer severe risk to her safety and to her survival." Id. (describing psychiatrist's affidavit) (internal quotation marks and brackets omitted).
Here, plaintiff's therapist asserts that "it appears very likely, given her high degree of fear and reactivity, that, should her case no longer remain anonymous, . . . she will suffer a recurrence of PTSD along with depression." (Kubitschek Decl. Ex. 1. at 2.) Yet nothing in the therapist's letter or plaintiffs' other papers establishes any link between public disclosure of plaintiff's name and the described psychological risk to Jane Doe. The therapist's opinion is explicitly based on the observation that PTSD "can be retriggered if the individual is re-exposed to the perceived threat." (Id.) Being "re-exposed" to the perceived wrong, however, is an inevitable consequence of litigation itself. If the case goes forward, Jane Doe will be deposed, no doubt in the presence of the accused defendant; in the less certain event of trial, she will presumably testify in a public courtroom and be subjected to cross-examination. These procedures would occur whether or not the pleadings disclosed Jane Doe's true name. There is simply no way to conclude that granting plaintiffs permission to proceed under pseudonyms will prevent Jane Doe from having to revisit the traumatic events -- in other words, from being "re-exposed to the perceived threat." (Id.)*fn14
The credibility of the therapist's opinion must also be discounted somewhat because of the circumstances under which it was formed. Her conclusion is based on a single meeting, of unspecified duration, on August 6, 2006, more than a year after completion of the therapist's treatment of Jane Doe for depression and PTSD -- which itself was hardly extensive, dating from March 1, 2005, through June 14, 2005 -- and about a week after defendants' motion was filed. Although the report thus comes from a therapist who was at one time engaged in treating the plaintiff, it is not based on ongoing familiarity with the plaintiff's situation, but rather appears to have been hastily prepared in contemplation of litigation.
Given these limitations, the Court cannot conclude that plaintiffs have made a sufficient showing of likelihood of harm to outweigh the strong presumption in favor of open disclosure of the identities of parties to litigation.*fn15
The Court appreciates that the allegations in the complaint concern events that anyone would prefer to keep private, and that there is evidence that Jane Doe has been psychologically harmed by those events. Nevertheless, the nature of the charged acts, repulsive as they are, is not so extreme as to support sufficiently an interest in anonymity. The Court accepts that, as her therapist has attested, revisiting these events may occasion anxiety for Jane Doe. But the greater part of the distress occasioned by the lawsuit is intrinsic to the pursuit of this action, even under conditions of anonymity. Any additional burden resulting from the public revelation of plaintiffs' identities has not been shown to be exceptional, and it must be home in light of the larger interest in open judicial proceedings.
As plaintiffs have not established that this is an exceptional case warranting pseudonymous litigation, defendants' motion to require amendment of the caption of the case is granted.