Doe v. Coder et al

Filing 25

ORDER DENYING PLAINTIFF'S EX PARTE MOTION TO FILE COMPLAINT AS "DOE" PLAINTIFF, FOR ELECTRONIC CASE FILING, AND FOR PROTECTIVE ORDERS; DISMISSING COMPLAINT WITH LEAVE TO AMEND. Plaintiff's complaint is dismissed with leave to amend to file, no later than December 14, 2010, a First Amended Complaint. Signed by Judge Maxine M. Chesney on November 30, 2010. (mmclc1, COURT STAFF) (Filed on 11/30/2010)

Doe v. Coder et al

Doc. 25

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff represents that he is an attorney admitted to practice in California and in this District.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOHN DOE, Plaintiff, v. GRAHM L. CODER, et al., Defendants. /

No. C-10-4756 MMC ORDER DENYING PLAINTIFF'S EX PARTE MOTION TO FILE COMPLAINT AS "DOE" PLAINTIFF, FOR ELECTRONIC CASE FILING, AND FOR PROTECTIVE ORDERS; DISMISSING COMPLAINT WITH LEAVE TO AMEND

United States District Court

Before the Court is the "Verified Ex Parte Motion: 1. to File Complaint as a `Doe' Plaintiff; 2. for Electronic Case Filing; 3. for Protective Orders," filed October 21, 2010 by plaintiff, who presently is appearing herein as "John Doe" and who proceeds pro se.1 Having read and considered the motion, the Court rules as follows. BACKGROUND In his complaint, plaintiff alleges that, in 2008, he applied for a position with the Federal Bureau of Investigation ("FBI") as a Special Agent, and, after passing two tests, he was "conditionally appointed" as a Special Agent in May 2009. (See Compl. ¶¶ 53, 88-91.) Plaintiff also alleges that defendant Special Agent Grahm L. Coder ("Coder"), during June 2009, "communicated with [p]laintiff numerous times" and did so for the "purpose" of

Dockets.Justia.com

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"develop[ing] disqualifying information" because plaintiff had "laughed" at Coder. (See Compl. ¶¶ 103, 133.) Plaintiff further alleges that Coder wrote a "defamatory" report in which Coder "falsely state[d] that [p]laintiff, acting as an attorney, negotiated an illegal drug buy." (See Compl. ¶ 108.) In July 2009, according to plaintiff, the FBI sent him a "rejection letter" stating that he had been "adjudicated not suitable for `drug use' and `criminal conduct.'" (See Compl. ¶ 111.) Plaintiff also alleges that defendants, each of whom is employed by the FBI, caused the "defamatory material to be placed in an interagency database," which, in turn, caused plaintiff to be "disqualified from the CIA, which was [p]laintiff's second choice." (See Compl. ¶ 45.) Based on the above allegations, plaintiff alleges claims for "defamation per se" and "defamation pro quod." Additionally, plaintiff alleges a claim titled "Bivens," which is based on the theory that plaintiff was deprived of a "Constitutional right to due process of law in the pursuit of employment with the FBI and the CIA." (See Compl. ¶ 151.) A. Request to Proceed Anonymously Plaintiff asserts he is entitled to proceed anonymously. Plaintiff concedes that defendants know his identity but argues he should be allowed to keep his identity from the public. Courts "recognize the paramount importance of open courts." See Doe v. Kamehameha Schools, 596 F.3d 1036, 1046 (9th Cir. 2010). "For this reason, the default presumption is that the plaintiff[ ] will use [his] true name[ ]." Id. To determine whether a plaintiff has overcome such presumption, a court considers the follows factors: (1) "the severity of the threatened injury;" (2) "the reasonableness of the anonymous party's fears;" (3) "the anonymous party's vulnerability to retaliation;" (4) "prejudice at each stage of the proceedings to defendants;" and (5) "the public's interest." See Does v. Advanced Textile Corp., 214 F.3d 1058, 1070-72 (9th Cir. 2000). The first two factors are the "most important," and, accordingly, a party seeking to proceed anonymously "must show both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable." See Kamehameha Schools, 596 F.3d at 1043. 2

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Here, plaintiff asserts that the "legal community" in Santa Clara County, where plaintiff states he practices, is "fairly small" and, further, that the "particular segment of the legal profession in which plaintiff practices is a much smaller part of the legal community." (See Pl.'s Mot. ¶ 11.) Plaintiff also asserts he operates a website on which he criticizes the FBI's handling of his job application, as well as those of other applicants. According to plaintiff, if he litigates the instant case under his true name, there will be "irreparable, immeasurable harm to [p]laintiff's professional reputation." (See id. ¶ 4.) Although plaintiff fails to explain the factual basis for his argument in detail, it appears plaintiff is arguing that if the public knew of the assertedly "false" reason the FBI did not hire him and/or knew he has criticized the FBI's employment practices, members of the public seeking an attorney who provides the type of services plaintiff provides would decide not to retain plaintiff. Plaintiff's showing is entirely speculative. Plaintiff has not shown any threat of harm, let alone a threat of "severe harm." See Kamehameha Schools, 596 F.3d at 1043; cf. Advanced Textile Corp., 214 F.3d at 1062, 1071 (holding "severity of threatened harm" weighed in favor of anonymity where plaintiff "foreign garment workers" faced threats of retaliation by employers in the form of "deportation, arrest, and imprisonment"). There is no showing, for example, that the general community residing in the geographic area in which plaintiff works would be hostile to plaintiff in light of the allegations in his complaint or any statement he has made on his website. Cf. Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981) (holding parent and two minor children challenging "constitutionality of prayer and Bible reading classes in Mississippi public schools" allowed to proceed anonymously, where plaintiffs offered evidence to show they reasonably feared "extensive harassment" from community that was "hostile to the viewpoint reflected in plaintiffs' complaint"). Nor has plaintiff shown that his fears are reasonable, as, again, such concerns are based entirely on speculation. Consequently, plaintiff has failed to show that either of the first two factors, which, as noted, are the "two most important" factors, see Kamehameha Schools, 596 F.3d at 1043, weighs in favor of allowing plaintiff to proceed anonymously. Further, plaintiff has not shown that the remaining factors weigh in favor of 3

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anonymity. First, plaintiff has in no manner demonstrated he is particularly vulnerable. Second, although at this stage of the proceedings there is no indication of prejudice to defendants,2 plaintiff has failed to show the public lacks an interest in knowing the identities of all parties to the litigation. As the Fifth Circuit has pointed out, "there remains a First Amendment interest in insuring that what transpires in the courtroom is public property." See Stegall, 653 F.2d at 185 (internal citation and quotation omitted). In sum, plaintiff has failed to rebut the "normal presumption in litigation" that "parties must use their real names." See Kamehameha Schools, 596 F.3d at 1046. Accordingly, to the extent the motion seeks an order allowing plaintiff to proceed anonymously, the motion will be denied and the complaint will be dismissed with leave to amend, specifically, for plaintiff to state his true name. B. Request for Special ECF Procedures Plaintiff seeks permission to create and use an ECF account under a fictitious name. Because the Court has not granted plaintiff permission to proceed anonymously, this request will be denied. C. Protective Orders Plaintiff seeks a protective order prohibiting defendants from revealing plaintiff's true name or identifying information to anyone. Because the Court has not granted plaintiff permission to proceed anonymously, this request will be denied. Plaintiff also seeks a protective order prohibiting defendants from revealing the true names of or identifying information about two individuals identified by plaintiff in his complaint as "James Doe" and "Christopher Doe." (See Compl. ¶ 107.)3 To the extent

Because no defendant has appeared, the Court cannot properly analyze whether any defendant would be prejudiced if plaintiff were to keep his identity from the public. According to an attachment to the complaint, plaintiff, in May 2008, "accompanied James to [their] mutual friend Chris's house," where "James intended to obtain a small amount of marijuana (less than $100) from Chris and [plaintiff] intended to visit with Chris" (see Compl. Ex. A, at 5:22-25), and where "James" and "Chris" "came to [an] agreement and exchanged the marijuana" after plaintiff had "excused himself" from the room (see id. Ex. A, at 18:26-27). 4
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plaintiff seeks to limit discovery concerning "James" or "Christopher," the motion will be denied without prejudice to plaintiff's renewing the motion in the event a dispute regarding the scope of discovery arises and the parties are unable to resolve such dispute. See Fed. R. Civ. P. 26(c)(1). To the extent plaintiff seeks to preclude defendants from speaking with any third party regarding matters of which defendants already are informed, the motion will be denied, as plaintiff fails to cite any authority providing for the imposition of such First Amendment restriction on an ex parte basis. Finally, plaintiff seeks a protective order precluding the United States Postal Service from disclosing plaintiff's name or address to anyone who inquires as to the identity of the person who rents the post office box identified in plaintiff's filings as plaintiff's address of record. Because the Court has not granted plaintiff permission to proceed anonymously, this request will be denied. Moreover, the request will be denied for the additional reason that plaintiff has failed to show there exists a dispute between plaintiff and the Postal Service, such that the Postal Service is, over plaintiff's objection, likely to disclose his name and address to anyone who inquires. Finally, the request will be denied for the further reason that plaintiff has failed to cite any authority providing for the granting of the requested relief against a non-party on an ex parte basis. CONCLUSION For the reasons stated above: 1. Plaintiff's motion is hereby DENIED; and 2. Plaintiff's complaint is hereby DISMISSED with leave to amend to file, no later than December 14, 2010, a First Amended Complaint in which plaintiff discloses his true name. IT IS SO ORDERED.

Dated: November 30, 2010 MAXINE M. CHESNEY United States District Judge

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