Buhl v. Sproul et al

Filing 6

ORDER denying 5 Motion to Seal and Order Re: Caption, by Magistrate Judge Boyd N. Boland on 2/10/2014. ORDERED that the clerk of the court shall remove the filing restrictions currently in place with respect to the Prisoner Complaint 1 . (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00302-BNB
LEROY BUHL,
Plaintiff,
v.
R. SPROUL,
D. STAMPER,
K. LINCOLN,
BLAKE DAVIS,
C. DANIELS,
PAUL LAIRD,
GORDON HARPE,
FRED FRANDLE,
CHARLES SAMUELS, JR.,
R. MACK, and
FEDERAL BUREAU OF PRISONS,
Defendants.

ORDER

This matter is before the court on the “Motion to Seal and Order Re: Caption”
(ECF No. 5) filed by Plaintiff, Leroy Buhl. Mr. Buhl is a prisoner in the custody of the
Federal Bureau of Prisons at the United States Penitentiary, Administrative Maximum,
in Florence, Colorado. Mr. Buhl initiated this action by filing a Prisoner Complaint
alleging that prison officials have violated his rights under the United States
Constitution. He asks in the “Motion to Seal and Order Re: Caption” that the Prisoner
Complaint be sealed and that he be allowed to proceed under the pseudonym “John
Doe” to conceal his true identity. He alleges that such precautions are necessary “since
prison inmates use the electronic Law Library to identify Court Cases Such as this to

Seriously assault inmates Who ‘break the Code of Silence.’” (ECF No. 5 at 1.)
The court must construe the motion liberally because Mr. Buhl is not represented
by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not be an advocate for
a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the motion
will be denied.
Local rule of practice 7.2, D.C.COLO.LCivR, governs motions to restrict public
access. “Unless restricted by statute, rule of civil procedure, or court order, the public
shall have access to all documents filed with the court and all court proceedings.”
D.C.COLO.LCivR 7.2(a). A motion to restrict public access must:
(1) identify the document or the proceeding for which
restriction is sought;
(2) address the interest to be protected and why such
interest outweighs the presumption of public access
(stipulations between the parties or stipulated protective
orders with regard to discovery, alone, are insufficient to
justify restriction);
(3) identify a clearly defined and serious injury that would
result if access is not restricted;
(4) explain why no alternative to restriction is practicable or
why only restriction will adequately protect the interest in
question (e.g., redaction, summarization, restricted access to
exhibits or portions of exhibits); and
(5) identify the level of restriction sought.
D.C.COLO.LCivR 7.2(c).
Local rule of practice 7.2 recognizes that there is a presumptive right of public
access to court filings and proceedings.

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The presumption of public access recognized and promoted
by the local rule finds its root in the common law rights of
access to judicial proceedings and to inspect judicial
records-rights which are “beyond dispute.” Publicker
Industries, Inc. v. Cohen, 733 F.2d 1059, 1067 (3d Cir.
1984). The reason for the presumption of open access to
court proceedings is easily understood. “People in an open
society do not demand infallibility from their institutions, but it
is difficult for them to accept what they are prohibited from
observing.” Press-Enterprise Co. v. Superior Court, 464
U.S. 501, 509, 104 S. Ct. 819, 78 L. Ed.2d 629 (1984). The
public has a fundamental interest in understanding the
disputes presented to and decided by the courts, so as to
assure that they are run fairly and that judges act honestly.
Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th
Cir. 1980).
Huddleson v. City of Pueblo, 270 F.R.D. 635, 636 (D. Colo. 2010).
Of course, the public’s right of access is not absolute. See United States v.
Hickey, 767 F.2d 705, 708 (10th Cir. 1985). The court has discretion to “seal documents
if the public’s right of access is outweighed by competing interests.” Id. The court
exercises this discretion “in light of the relevant facts and circumstances of the particular
case.” Id.
[A]ccess has been denied where court files might have
become a vehicle for improper purposes. For example, the
common-law right of inspection has bowed before the power
of a court to insure that its records are not used to gratify
private spite or promote public scandal through the
publication of the painful and sometimes disgusting details of
a divorce case. Similarly, courts have refused to permit their
files to serve as reservoirs of libelous statements for press
consumption, or as sources of business information that
might harm a litigant's competitive standing.
Nixon v. Warner Commc’ns Inc., 435 U.S. 589, 597 (1978) (citations omitted).
Mr. Buhl’s vague assertion that restricted access is necessary “since prison
inmates use the electronic Law Library to identify Court Cases Such as this to Seriously
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assault inmates Who ‘break the Code of Silence’” (ECF No. 5 at 1) does not
demonstrate the existence of any competing interests that outweigh the public’s right of
access. The claims Mr. Buhl asserts in the Prisoner Complaint consist of the following:
an Eighth Amendment claim in which he alleges he was assaulted by two inmates in
May 2012 and in which he challenges his placement at ADX (claim one); a Fifth
Amendment claim challenging a prison disciplinary conviction stemming from the May
2012 assault (claim two); a First and Fifth Amendment retaliation claim in which he
alleges an incident report was not expunged even though the disciplinary conviction was
reversed (claim three); a First Amendment access to the courts claim in which he
alleges he was unable to file a lawsuit challenging a 2009 administrative hearing
because his impaired vision prevents him from using the prison law library (claim four);
a claim under the Americans with Disabilities Act in which he alleges prison officials
have refused to provide reasonable accommodations for his vision disability (claim five);
and an Eighth Amendment claim in which he alleges prison officials have been
deliberately indifferent to his serious medical needs by failing to provide visioncorrection surgery (claim six). Mr. Buhl does not explain how these claims implicate the
alleged “Code of Silence” and he fails to set forth specific factual allegations regarding
the potential harm he apparently contends he will face if the Prisoner Complaint is not
sealed.
Mr. Buhl’s alternative request to proceed in this action under the pseudonym
“John Doe” also will be denied. “Proceeding by pseudonym in federal court is, by all
accounts, an unusual procedure.” Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir.
2000) (internal quotation marks omitted). While the Federal Rules of Civil Procedure
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require that all pleadings contain the names of the parties and identify the real parties at
interest, “there may be exceptional circumstances warranting some form of anonymity in
judicial proceedings.” Id. These exceptional circumstances include “‘matters of a highly
sensitive and personal nature, real danger of physical harm, or where the injury litigated
against would be incurred as a result of the disclosure of the plaintiff’s identity.’” Id.
(quoting Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992)).
Mr. Buhl’s request to proceed by pseudonym will be denied because he fails to
allege specific facts that demonstrate any real danger of physical harm. As noted
above, Mr. Buhl does not explain how the claims he is asserting in this action implicate
the alleged “Code of Silence” and he fails to set forth specific factual allegations
regarding the potential harm he apparently contends he will face if his true identity is
known. Accordingly, it is
ORDERED that the “Motion to Seal and Order Re: Caption” (ECF No. 5) is
DENIED. It is
FURTHER ORDERED that the clerk of the court shall remove the filing
restrictions currently in place with respect to the Prisoner Complaint (ECF No. 1) filed in
this action on January 31, 2014.
DATED February 10, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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