Jane Doe 77 v. Massac Unit School District #1 et al

Filing 39

ORDER, GRANTING 31 MOTION for Protective Order filed by Jane Doe 77. Upon motion and over the objection of Defendants, Plaintiff is GRANTED leave to proceed through the pretrial phase of this case using the pseudonym "Jane Doe 77." This m atter is REFERRED to Magistrate Judge Donald G. Wilkerson for the purpose of fashioning a protective order. Within seven days of the date of this Order, Plaitiff shall file under seal her true identity so the Court and all attorneys can assess any conflicts of interest(action due by 5/17/2012). Signed by Judge Michael J. Reagan on 5/10/2012. (mmr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JANE DOE 77,
Plaintiff,
vs.
MASSAC UNIT SCHOOL DISTRICT #1,
WILLIAM HATFIELD,
DONALD SMITH,
REUBEN BREMMER, and
DARRYL BENTSON,
Defendants.

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Case No. 12-CV-268-MJR-DGW

ORDER
REAGAN, District Judge:
Plaintiff Jane Doe 77 filed suit on March 27, 2012, alleging that in 1985, while
attending Franklin Elementary School in Massac County, Illinois, she was physically,
emotionally and sexually abused by Defendant Darryl Bentson, an employee at the school.
Plaintiff is now before the Court seeking a protective order permitting her to litigate this action
using a pseudonym (Doc. 31).

Plaintiff contends that prosecution of this action under a

pseudonym is warranted by her current emotional condition and the nature of the claims asserted,
which involve allegations of sexual abuse of a minor and threats of physical abuse and
retribution (Doc. 32). Defendants object, asserting that Plaintiff has not presented a sufficient
basis for a protective order; in the alternative, Defendants contend the proposed protective order
is overly broad and imposes an undue burden on Defendants (Doc. 38).
As a general matter, litigating under a pseudonym is antithetical to our public
judicial system; therefore, the presumption that a party's name is public information must be
rebutted by showing that the harm of identification outweighs the harm of anonymity. Doe v.
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City of Chicago, 360 F.3d 667, 669-670 (7th Cir. 2004). However, a pseudonym may be used
when necessary to protect the privacy of rape victims and other particularly vulnerable parties.
Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997).
However, in a situation such as this, it is the alleged perpetrator of the abuse who will be
disgraced if the allegations turn out to be unsubstantiated. See Doe v. Smith, 429 F.3d 706, 710
(7th Cir. 2005). Defendants further complain that the media learned of this action even before
they were all served with the complaint.
The Complaint alleges incidents of sexual touching (including digital penetration
of Plaintiff’s vagina), Plaintiff being thrown to the ground resulting in an injury, name-calling,
and threats that, if Plaintiff told anyone about the abuse, she and/or her mother would be killed
(see Doc. 5, p. 3 ¶ 15). Plaintiff cites the deeply personal and humiliating nature of the
allegations, fear of retaliation, and her psychological health.

According to Plaintiff’s

psychologist, Plaintiff assumes a child-like demeanor when discussing the abuse, and she is still
unable to speak the abuser’s name. Plaintiff lives in a small town and fears the public learning
what happened to her, and she has purportedly been unable to live an independent life since the
abuse. Plaintiff also fears retaliation by Defendant Bentson, as well as his family and friends. A
psychologist’s report substantiates Plaintiff’s fragile mental state and indicates that repressed
memories first emerged after she saw Defendant Bentson in 2010, and that memories of the
abuse continue to emerge (Doc. 32-1).
Based solely on her psychiatric state and the added pressure public revelation of
her name would entail, Plaintiff has certainly made a compelling and substantiated case for
allowing her to proceed-- at least through the discovery phase of this action-- using a
pseudonym. Defendants’ assertions to the contrary, the Court’s reading of the psychologist’s
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report does contain a sufficient causal link between psychological trauma and mere visual
encounters with Defendant Bentson (see Doc. 32-1, p. 3). Although 27 years have passed since
the abuse and threatened retribution, it is the act of making public the allegations of abuse that
would trigger retribution, if the alleged threats were legitimate. Although so much time passing
would normally dilute the threats, it is alleged that Defendant Bentson physically injured
Plaintiff, so the threats are not entirely discounted.
With all that said, the prejudice to the Defendants must also be weighed. There is
no denying that when allegations of abuse are made and later turn out to be unsubstantiated, it is
the wrongly labeled defendant who is prejudiced. However, Defendant Bentson has not sought
his own protective order, and it was the Court, not the Defendants, who questioned Plaintiff
proceeding as Jane Doe 77.

Nevertheless, Defendants correctly observe that the proposed

protective order is overly broad and prejudicial to their ability to conduct discovery and prepare a
defense, while giving Plaintiff free rein to reveal her identity whenever and to whomever she
chooses. In addition, Plaintiff impermissibly proposes that this Court attempt to bind the Court
of Appeals, which must make its own decision regarding what protection is appropriate on
appeal.

As Defendants acknowledge, a protective order can be fashioned that addresses these

concerns, and comply with Federal Rule of Civil Procedure 26(c) and the dictates of Citizens
First National Bank of Princeton v. Cincinnati Insurance Co., 178 F.3d 943 (7th Cir. 1999), and
Union Oil Company of California v. Leavell, 220 F.3d 562 (7th Cir. 2000).
For the reasons stated, the Court finds that Plaintiff has carried her burden and
shown that the harm of identifying her outweighs the harm of anonymity. The Defendants’
concerns and the ability to conduct discovery can be adequately protected by a narrowly drawn
protective order. See Doe v. Maywood Housing Authority, 71 F.3d 12941297 (7th Cir. 1995) (a
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properly tailored protective order allowing pseudonyms was appropriate in a case involving quid
pro quo sexual favors).
IT IS THEREFORE ORDERED that Plaintiff’s motion for entry of a protective
order allowing her to proceed using a pseudonym (Doc. 31) is GRANTED, in that Plaintiff may
proceed through the pretrial stage of litigation using the pseudonym Jane Doe 77. At the final
pretrial conference, the Court will assess whether it is appropriate for Plaintiff to proceed
through trial using a pseudonym. If other alleged victims of abuse are discovered, the parties
shall immediately notify the Court and move for a judicial determination of whether their
identities should also be kept confidential.
IT IS FURTHER ORDERED that the task of fashioning a protective order is
hereby REFERRED to United States Magistrate Judge Donald G. Wilkerson, who bears
responsibility for all discovery matters in this case.
IT IS FURTHER ORDERED that within seven days from the date of this Order,
Plaintiff shall file under seal her true identity so that the Court and all attorneys may assess any
conflicts of interest.
IT IS SO ORDERED.
DATED: May 10, 2012
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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