Doe H v. Haskell Indian Nations University et al

Filing 72

MEMORANDUM AND ORDER granting 29 DEFENDANTS' MOTION TO DISMISS COMPLAINT; granting 31 DEFENDANT VENIDA S. CHENAULT'S MOTION TO DISMISS COMPLAINT; granting 33 DEFENDANT TONIA SALVINI'S MOTION TO DISMISS COMPLAINT; granting 35 DE FENDANT ELYSE TOWEY'S MOTION TO DISMISS COMPLAINT; granting 52 MOTION FOR LEAVE TO AMEND COMPLAINT; denying 55 MOTION FOR LEAVE TO PROCEED BY PSUEDONYM; denying 57 PLAINTIFF'S MOTION TO SEAL DEFENDANTS' EXHIBITS; granting 70 DEFENDANTS' MOTION AND MEMORANDUM IN SUPPORT FOR LEAVE TO FILE SURREPLY TO PLAINTIFF'S REPLY. Signed by District Judge J. Thomas Marten on 7/17/2017. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JANE DOE H.,
Plaintiff,
vs.

Case No. 16-2727-JTM

HASKELL INDIAN NATIONS UNIVERSITY, et
al.,
Defendants.

MEMORANDUM AND ORDER

Plaintiff Jane Doe H. attended Haskell Indian Nations University in Lawrence,
Kansas from 2014 to 2016. Haskell is a unique federally-owned university, providing
tuition-free higher education to members of recognized Indian Nations. 1Doe brings the
present action against Haskell, the United States, the Secretary of the Department of
Interior, and two individual Haskell officers and one Haskell employee.2

The court has previously recognized Haskell as “a four year college … under the control and
management of the United States Department of the Interior, Bureau of Indian Affairs,” whose
“[i]nstructors … are federal employees governed by federal rules and regulations.” John v. Lujan, 1992 WL
41354, *1 (D. Kan. Feb. 16, 1992). See also State v. LaPier, 242 Mont. 335, 342 (1990) (“Haskell admits
persons of one-fourth or more Indian blood and the federal government pays the student’s educational
expenses”).
1

Venida Chenault is the President of Haskell. Tonia Savnini is Haskell’s Vice President of University
Services. Elyse Towey is the college’s Title IX coordinator.
2

The plaintiff alleges in her complaint that she was subjected to a sexual assault
by two male students at a dormitory in November of 2014. After an investigation, the
male students were criminally charged. (Dkt. 1, ¶¶ 16-18). Haskell provided plaintiff
counseling and support for the next sixteen months, and the complaint identifies no
actions by defendants during that period which support her claims for relief. (Id., at ¶¶
21-22).
On March 31, 2016, the complaint alleges that plaintiff experienced a physical
altercation with a third male student. The male student reported that plaintiff assaulted
him. Plaintiff alleges that university officers pressured the male student to file Title IX
charges against her, even though the officers did or should have known that she was
the victim of the altercation. (Id., at ¶¶ 26-27).
University administrators issued an order to plaintiff that she should have no
contact with the male student. Plaintiff alleges that the she was constructively expelled
and banned from campus without any additional investigation. (Id., at ¶¶ 32-33).
Plaintiff alleges she was not allowed any opportunity to oppose this decision prior to
the constructive expulsion. Plaintiff withdrew from the university and did not engage
in any subsequent appeal or procedural opposition to the administrator’s actions.
Plaintiff filed the present action on October 24, 2016.
In the complaint, the plaintiff raises three claims against the Secretary, Haskell,
and the United States:

(Count 1) that she was subjected to a hostile educational

environment at Haskell in violation of Title IX; (Count 2), that they violated her rights
under Title IX by retaliating against her; and (Count 6), that they violated her rights
2

under the Rehabilitation Act by constructive expelling, even though they knew she was
mentally traumatized by the 2014 assault. Against the individual defendants, plaintiff
brings Bivens claims for (Count 3) deprivation of due process,3 (Count 4) violation of her
equal protection rights, and (Count 5) violated her privacy rights by providing copies of
her Haskell records, without a subpoena, to defendants’ counsel during the June, 2016,
trial of the students involved in the alleged 2014 assault.
All of the defendants have moved to dismiss the action. Citing U.S. Dep't of
Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605–06 (1986), the government4 argues
that the plaintiff’s claims against it are precluded by sovereign immunity, and
alternatively that plaintiff’s Title IX and Rehabilitation Act claims are inapplicable, since
Haskell is not an institution receiving federal assistance within the meaning of those
statutes. The individual defendants argue that plaintiff’s claims are not appropriate
Bivens actions, and alternatively that defendants are protected by qualified immunity.
All defendants argue that, even if plaintiff’s claims are otherwise properly before the
court, her allegations fail to support the claims presented.
The plaintiff responds to the government’s argument by contending that it has
misapprehended Paralyzed Veterans, and focuses on the Court’s reference in that case to
its earlier decision in Grove City College v. Bell, 465 U.S. 555 (1984). According to the
plaintiff, Paralyzed Veterans merely held that a private entity (an airline) receiving an
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court recognized an
implied cause of action against federal agents for violations of a plaintiff’s constitutional rights.

3

Because Haskell is a federally owned and operated agency of the United States, plaintiff’s denomination
of separate defendants in Counts 1, 2, and 6 serves no purpose. All of these claims are claims against the
United States.
4

3

indirect benefit from federal airport construction assistance, was outside the reach of
Section 504 of the Rehabilitation Act. She contends that Grove City, which involved
student financial assistance under Title IX, is the more relevant decision.
In Paralyzed Veterans, the Court rejected an argument by the plaintiffs that Grove
City supported their position by distinguishing the nature of the federal assistance in
the earlier decision:
This argument confuses intended beneficiaries with intended recipients.
While we observed in Grove City that there is no “distinction between
direct and indirect aid” and that “[t]here is no basis in the statute for the
view that only institutions that themselves apply for federal aid or receive
checks directly from the Federal Government are subject to regulation,”
we made these statements in the context of determining whom Congress
intended to receive the federal money, and thereby be covered by Title IX.
465 U.S., at 564, 104 S.Ct., at 1217. It was clear in Grove City that Congress'
intended recipient was *607 the college, not the individual students to
whom the checks were sent from the Government. It was this unusual
disbursement pattern of money from the Government through an
intermediary (the students) to the intended recipient that caused us to
recognize that federal financial assistance could be received indirectly.
While Grove City stands for the proposition that Title IX coverage extends
to Congress' intended recipient, whether receiving the aid directly or
indirectly, it does not stand for the proposition that federal coverage
follows the aid past the recipient to those who merely benefit from the aid.
In this case, it is clear that the airlines do not actually receive the aid; they
only benefit from the airports' use of the aid.
477 U.S. at 605–06.
The court finds that Grove City does not support an exercise of jurisdiction over
the plaintiff’s claims in the present action. First, in Grove City the Court had stressed the
distinct nature of the federal assistance in question – Basic Education Opportunity
Grants (BEOGs) which were made payable to students but which inevitably flowed into
the defendant college’s financial aid program. “The BEOG program was designed, not
4

merely to increase the total resources available to educational institutions, but to enable
them to offer their services to students who had previously been unable to afford higher
education.” Grove City, 465 U.S. at 573. The Court determined under the circumstances
of the case that the government could enforce Title IX’s certification requirements, but
only against the college’s financial aid program, not against the college itself:
It is true, of course, that substantial portions of the BEOGs received by
Grove City's students ultimately find their way into the College's general
operating budget and are used to provide a variety of services to the
students through whom the funds pass. However, we have found no
persuasive evidence suggesting that Congress intended that the
Department's regulatory authority follow federally aided students from
classroom to classroom, building to building, or activity to activity…. We
conclude that the receipt of BEOGs by some of Grove City's students does
not trigger institution-wide coverage under Title IX. In purpose and effect,
BEOGs represent federal financial assistance to the College's own financial
aid program, and it is that program that may properly be regulated under
Title IX.
Id. at 573-74.
In the present case, the financial assistance provided by the federal government
is far more indirect than in Grove City. Haskell is a unique national institution of higher
learning for Native Americans. It provides a tuition-free education for members of
indigenous Nations, and any federal assistance takes the form of Pell Grants or other
assistance for limited expenses, such as books and lodging, which students may
otherwise incur.
More importantly for present purposes, Grove City involved an effort by the
government to enforce Title IX’s certification requirement against a private college. As a
result, the decision provides no guidance as to whether Congress has waived the

5

federal government’s sovereign immunity as to actions for monetary damages arising
under Title IX.
“The basic rule of federal sovereign immunity is that the United States cannot be
sued at all without the consent of Congress.” Block v. North Dakota, 461 U.S. 273, 287,
(1983). Such a waiver of sovereign immunity must be “unequivocally expressed” in
statutory text. See, e.g., Lane v. Peña, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486
(1996); United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181
(1992); Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d
435 (1990). Any ambiguities in the statutory language are to be construed in favor of
immunity. United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608
(1995). If there is any doubt, waiver will not be found because waiver cannot be
implied, assumed, or based upon speculation, surmise, or conjecture. United States v.
King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969).
By separate statute, Congress has explicitly stated that “[a] State shall not be
immune under the Eleventh Amendment of the United States from suit in federal
court” for violations of Title IX and Section 504 of the Rehabilitation Act. 42 U.S.C. §
2000d-7(a)(1). See, e.g., Franks v. Ky. Sch. for the Deaf, 142 F.3d 360, 363 (6th Cir. 1998)
(“Congress successfully abrogated the states' Eleventh Amendment immunity from
Title IX lawsuits”). But Congress has not explicitly waived sovereign immunity by the
federal government for such actions.
Thus, “Title IX of the Education Amendments of 1972, Section 504 of the
Rehabilitation Act, Title II of the Americans with Disabilities Act, and the False Claims
6

Act do not waive the sovereign immunity of the United States.” Wije v. Texas Woman's
Univ., No. 4:14-CV-571-ALM-CAN, 2015 WL 9872534, at *8 (E.D. Tex. Dec. 22, 2015),
report and recommendation adopted, No. 4:14-CV-571, 2016 WL 231151 (E.D. Tex. Jan. 19,
2016) (as to his claims under “Title IX of the Education Amendments of 1972 [and]
Section 504 of the Rehabilitation Act … against the United States Department of
Education … Plaintiff has not satisfied his burden to demonstrate the immunity of the
United States has been (or could have been waived) here”).
In Lane, 518 U.S. at 192, the Supreme Court concluded that “[t]he clarity of
expression necessary to establish a waiver of the Government's sovereign immunity
against monetary damages for violations of § 504 is lacking.” The Court stressed that
Congress explicitly waived federal sovereign immunity in 29 U.S.C. § 791 for
Rehabilitation Act cases charging disability in employment discrimination under
Section 501. In contrast, in the remedies provision for Section 504 cases,
Congress decreed that the remedies available for violations of Title VI
would be similarly available for violations of § 504(a) “by any recipient of
Federal assistance or Federal provider of such assistance.” 29 U.S.C. §
794a(a)(2). This provision makes no mention whatsoever of “program[s]
or activit[ies] conducted by any Executive agency,” the plainly more farreaching language Congress employed in § 504(a) itself. Whatever might
be said about the somewhat curious structure of the liability and remedy
provisions, it cannot be disputed that a reference to “Federal provider[s]”
of financial assistance in § 505(a)(2) does not, without more, establish that
Congress has waived the Federal Government's immunity against
monetary damages awards beyond the narrow category of § 504(a)
violations committed by federal funding agencies acting as such—that is,
by “Federal provider[s].”
Id. at 192-93.

7

The Court also rejected the plaintiff’s argument resting on earlier decisions such
as Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992) recognizing an implied
right of action under Title IX against the recipients of federal financial assistance.
Franklin, the Court observed:
involved an action against nonfederal defendants under Title IX. Although
the Government does not contest the propriety of the injunctive relief
Lane obtained, the Federal Government's sovereign immunity prohibits
wholesale application of Franklin to actions against the Government to
enforce § 504(a). As the Government puts it, “[w]here a cause of action is
authorized against the federal government, the available remedies are not
those that are ‘appropriate,’ but only those for which sovereign immunity
has been expressly waived.”
Id. at 196 (emphasis added).
The plaintiff has failed to point to any statutory language indicating a clear and
unequivocal intent by Congress to expressly waive sovereign immunity. The court
concludes that the plaintiff’s claims under Title IX and the Rehabilitation Act should be
dismissed.
In addition, the court finds that the plaintiff’s due process and equal protection
Bivens actions against the individual defendants should be dismissed.
In response to the defendants’ motions to dismiss, the plaintiff addresses in
detail only that portion in which defendants seek dismissal under Rule 12(b)(6) — that
the factual allegations in the Complaint (or proposed Amended Complaint) fail to set
forth actionable due process and equal protection claims. The plaintiff wholly ignores
the question of whether a Bivens action is appropriate in this case, other than a single
passage in each brief (Dkts. 54, 58, and 59, at 8, 24) citing cases in which Bivens actions
8

have been permitted to proceed. See Davis v. Passman, 442 U.S. 228 (1979) (due process);
Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001) (equal protection).
But this is insufficient. The plaintiff fails to note that cases such as “Davis …
represent the high-water mark in the Court’s Bivens jurisprudence,” after which
Supreme Court “has steadfastly retreated from a broad application of the doctrine,
refusing to extend implied causes of action to other constitutional provisions, and
cabining the contexts in which it will allow Bivens claims to proceed.” Big Cats of
Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 859 (10th Cir. 2016). See Ziglar v. Abbasi, 137
S.Ct. 1843, 1855 (2017) (“Bivens, Davis, and Carlson, [446 U.S. 14 (1980)] represent the
only instances in which the Court has approved of an implied remedy under the
constitution itself”).
As the Supreme Court emphasized in its recent decision in Ziglar, courts must
exercise caution before implying a constitutional remedy:
[I]t is a significant step under separation-of-powers principles for a court
to determine that it has the authority, under the judicial power, to create
and enforce a cause of action for damages against federal officials in order
to remedy a constitutional violation. When determining whether
traditional equitable powers suffice to give necessary constitutional
protection—or whether, in addition, a damages remedy is necessary—
there are a number of economic and governmental concerns to consider.
Claims against federal officials often create substantial costs, in the form of
defense and indemnification. Congress, then, has a substantial
responsibility to determine whether, and the extent to which, monetary
and other liabilities should be imposed upon individual officers and
employees of the Federal Government. In addition, the time and
administrative costs attendant upon intrusions resulting from the
discovery and trial process are significant factors to be considered. In an
analogous context, Congress, it is fair to assume, weighed those concerns
in deciding not to substitute the Government as defendant in suits seeking
damages for constitutional violations.
9

For these and other reasons, the Court's expressed caution as to
implied causes of actions under congressional statutes led to similar
caution with respect to actions in the Bivens context, where the action is
implied to enforce the Constitution itself. Indeed, in light of the changes to
the Court's general approach to recognizing implied damages remedies, it
is possible that the analysis in the Court's three Bivens cases might have
been different if they were decided today….
Given the notable change in the Court's approach to recognizing
implied causes of action, however, the Court has made clear that
expanding the Bivens remedy is now a “disfavored” judicial activity.
[Ashcroft v. Iqbal], 556 U.S. {662,] 675 [(2009)]. This is in accord with the
Court's observation that it has “consistently refused to extend Bivens to
any new context or new category of defendants.” Correctional Services
Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001).
Indeed, the Court has refused to do so for the past 30 years.
137 S.Ct. at 1856-57.
The plaintiff’s response does not address the mandatory two-step analysis
required by the Supreme Court, under which the court must “carefully consider the
facts and context” of the specific case before it. Id. at 860. This test follows from the
Court’s explicit cautioning that claims for damages under Bivens must “represent a
judgment about the best way to implement a constitutional guarantee; it is not an
automatic entitlement no matter what other means there may be to vindicate a
protected interest,” and thus “in most instances we have found a Bivens remedy
unjustified.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007).
Under this two-step analysis, the court first determines whether an “alternative,
existing process for protecting the [plaintiff's] interest amounts to a convincing reason
for the Judicial Branch to refrain from providing a new and freestanding remedy in
damages.” Wilkie, 551 U.S. at 550. See also Minneci v. Pollard, 565 U.S. 118 (2012); Ziglar,
10

137 S.Ct. at 1863 (“when alternative methods of relief are available, a Bivens remedy
usually is not”). Second, even if there is no alternative remedy, the court may still
decline to entertain an action for damages if there are “special factors” which counsel
hesitation, “weighing reasons for and against the creation of a new cause of action, the
way common law judges have always done.” Id. at 554.
“The point of examining the existing process is to determine whether
Congress has explicitly or implicitly indicated ‘that the Court's power
should not be exercised.’” De La Paz v. Coy, 786 F.3d 367, 375 (5th Cir.
2015), cert. filed, (Jan. 12, 2016) (quoting Bush [v. Lucas], 462 U.S. [367,] 378
[(1983)]. Congress may explicitly “indicate its intent[ ] by statutory
language, by clear legislative history, or perhaps even by the statutory
remedy itself, that the Court's power should not be exercised.” Bush, 462
U.S. at 378, 103 S.Ct. 2404. But Congress may also implicitly indicate intent
“by creating a process that provides ‘an avenue for some redress'” for
injured persons, and “[i]n these instances, ‘bedrock principles of
separation of powers' show that ‘Congress expected the Judiciary to stay
its Bivens hand’ and instead apply the statutory remedy.” Koprowski v.
Baker, 822 F.3d 248, 262 (6th Cir. 2016) (Sutton, J., dissenting) (quoting
Malesko, 534 U.S. at 69, 122 S.Ct. 515; Wilkie, 551 U.S. at 554, 127 S.Ct. 2588).
Thus, in analyzing whether a Bivens claim is precluded by an alternative
remedy, courts must consider the nature and extent of the statutory
scheme created by Congress, and assess the significance of that scheme in
light of the factual background of the case at hand. See Wilkie, 551 U.S. at
551, 127 S.Ct. 2588; see also De La Paz, 786 F.3d at 375.
Big Cats, 843 F.3d at 860-61 (emphasis in original).
Such an alternative remedy exists in the present action. On June 23, 2000,
President Clinton by executive order required that “[t]he Federal Government must
hold itself to at least the same principles of nondiscrimination in educational
opportunities as it applies to the education programs and activities of State and local
governments, and to private institutions receiving Federal financial assistance.” Exec.
Order 13160, 65 F..R. 39775, 2000 WL 34508162, §. 1. Consistent with this obligation, the
11

Executive Order prohibits a wide range of discriminatory actions “in Federally
conducted education and training programs and activities.” Id. Haskell Indian Nations
University is a federally conducted education program, and is subject to the provisions
of the order.
Executive Order 13160 both prohibits discrimination, § 1-102, and provides
procedural due process rights to persons receiving federally conducted education. Id. at
§ 4. Specifically, the Order provides:
Any person who believes himself or herself to be aggrieved by a violation
of this order or its implementing regulations, rules, policies, or guidance
may, personally or through a representative, file a written complaint with
the agency that such person believes is in violation of this order or its
implementing regulations, rules, policies, or guidance. Pursuant to
procedures to be established by the Attorney General, each executive
department or agency shall conduct an investigation of any complaint by
one of its employees alleging a violation of this Executive Order.
Id. at § 4-401. Following this mandatory investigation, any findings that a federal
employee has violated the Order, along with all supporting evidence, is given to the
federal agency in charge of the education program. The agency may then take “any
corrective or remedial action;” the only limitation on such corrective action is the
qualification that “[n]othing in this order authorizes monetary relief” as damages. Id. at
§ 4-402. On the other hand, the Executive Order also provides that corrective action may
include “[a]ny action to discipline an employee who violates this order or its
implementing rules, regulations, policies, or guidance, including removal from
employment.” Id. at § 4-403. Administrative decisions under the Order are subject to
judicial review. Id. at § 8-801.
12

Administrative relief under Executive Order 13160 does not include monetary
compensation, but in determining whether a Bivens action is appropriate, “there is no
need for congruent remedies or even money damages.” Big Cats, 843 F.3d at 862-63.
Rather, the inquiry is whether the alternative, existing procedure shows Congress’s
intent to exclude a damages remedy,” which may exist if the procedure encompasses
both “adequate deterrence and at least some form of relief for the harm.” Id. at 862
(citations omitted, emphasis in Big Cats).
Here, Executive Order 13160 authorizes “any corrective or remedial action”
except monetary damages, and explicitly provides that responsible federal employees
may be disciplined or terminated. Of course, Executive Order 13160 is not an act of
Congress. However, as noted earlier, in determining whether to imply a Bivens remedy,
the court must also look to “implicit[] indicat[ions]” of Congressional intent, see id. at
860, and in this context it is notable that, nearly two decades after Executive Order
12160, Congress had made no attempt to provide for a damages remedy against federal
employees involved in education and training programs, or otherwise alter the
procedures adopted in the Executive Order. See Ziglar, 137 S.Ct. at 1862 (observing, in
rejecting a Bivens claim by foreign nationals for illegal detention, that “in any inquiry
respecting the likely or probable intent of Congress, the silence of Congress is relevant;
and here that silence [in failing to create any damages remedy for such detainees “for
nearly 16 years” since 9/11] is telling”).

13

The plaintiff supplies no argument as to why Executive Order 13160 would not
be an adequate alternative remedy within the meaning of Wilkie. Indeed, plaintiff’s
Responses to the defendants’ motions to dismiss do not even mention the order.
Because the court determines that plaintiff’s claims against the federal
government are barred by sovereign immunity, and plaintiff has failed to justify
prosecution of the claims against the individual defendants as monetary damages
claims under Bivens, the court dismisses these claims.
Also before the court is the plaintiff’s Motion to Amend (Dkt. 52), which seeks
leave for the filing of an Amended Complaint. Recognizing authority that privacy
claims are not actionable against individual federal employees under Bivens in light of
the Privacy Act (which does explicitly waive sovereign immunity for claims against the
government under the Act) , the Amended Complaint voluntarily dismisses the Count 5
Privacy Act claim against Towey, Salvini, and Chenault, and adds a new Count 7 claim
against the United States for violation of the Act.
Ordinarily, if a party to seeks to amend her pleadings, the “court should freely
give leave when justice so requires.” Fed. R. Civ. P. 15 (a)(2). Defendants oppose the
motion (Dkt. 63), arguing that the facts presented in the proposed Amended Complaint
were known before plaintiff filed her original complaint, and that the proposed changes
“are nothing more than a transparent attempt to move the target to avoid dismissal.”
(Dkt. 63, at 3). See State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th
Cir 1984) (motion to amend may be denied “[w]here the party seeking amendment
knows or should have known of the facts upon which the proposed amendment is
14

based but fails to include them in the original complaint, the motion to amend is subject
to denial”).
The court grants leave for the filing of the Amended Complaint. The proposed
Amended Complaint amplifies certain allegations about the conduct of the individual
defendants, but does not fundamentally alter or change any prior allegation of fact.
However, since the additional factual allegations seek to respond to defendants’
motions to dismiss for failure to state a claim under Fed.R.Civ.Pr. 12(b)(6) — an issue
which the court need not reach — they do not affect the court’s conclusions as to
sovereign immunity and the propriety of an action for Bivens against the individual
defendants.
Accordingly, the court dismisses all claims in the original and amended
complaint except the newly-presented Count 7 Privacy Act claim against the
government.
Plaintiff has separately moved for leave to continue to prosecute this action
under the Jane Doe pseudonym. She notes that the Tenth Circuit has upheld the use of
pseudonyms in certain cases, see Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118 (10th Cir.
1979), cert. den. 444 U.S. 856; Coe v. U.S. Dist. Court of Dist. Of Colorado, 676 F.2d 411
(10th Cir. 1982); M.M. v. Zavaras, 139 F.3d 798, 800 (10th Cir. 1998), quoting that court’s
decision in Lindsey:
This use of pseudonyms concealing plaintiffs' real names has no
explicit sanction in the federal rules. Indeed it seems contrary to
Fed.R.Civ.P. 10(a) which requires the names of all parties to appear in the
complaint. Such use obviously may cause problems to defendants
engaging in discovery and establishing their defenses, and in fixing res
15

judicata effects of judgments. Yet the Supreme Court has given the
practice implicit recognition in the abortion cases, Roe v. Wade, 410 U.S.
113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93
S.Ct. 739, 35 L.Ed.2d 201 (1973), with minimal discussion. Most of the
cases permitting the practice have involved abortion, birth control, and
welfare prosecutions involving abandoned or illegitimate children. We
have found only a few cases where the propriety of the technique was
discussed.
….
While the issue is not free from doubt we think all cases we
reviewed implicitly, at least, recognize that identifying a plaintiff only by
a pseudonym is an unusual procedure, to be allowed only where there is
an important privacy interest to be recognized. It is subject to a decision
by the judge as to the need for the cloak of anonymity.
592 F.2d at 1125.
However, the plaintiff omits language from Lindsey which clarifies that court’s
recognition that there is a presumption in favor of disclosure of a party’s name.
Approvingly citing Doe v. Deschamps, 64 F.R.D. 652 (D. Mont. 1974) for its collection of
relevant cases, the Lindsey court explicitly agreed that “the public generally has a right
to know [the identity of litigants],” and “refuses to permit [the use of pseudonyms]
except in unusual cases.” 592 F.2d at 1125. Moreover, it may be noted that in each of the
cited cases, the Tenth Circuit ultimately upheld the determination of the district court
that no pseudonym should be used. See Lindsey, id., (affirming decision not to permit
pseudonym where “Lindsey had already suffered the worst of the publicity and
embarrassment by being a named defendant in a state criminal trial”); Coe, 676 F.2d at
418 (in action by doctor challenging disciplinary action by state board, “District Court
did not err in finding that Dr. Coe's interest in privacy is outweighed by the public
interest”); Zavaras, 139 F.3d at 800 (pseudonym not required where “plaintiff's identity
16

is already known to the state agency and staff” and “we believe that the prejudice to the
public interest is clear, should the district court have allowed plaintiff to proceed under
a fictitious name”).
Plaintiff presents only one decision in which the court has upheld the use of a
pseudonym, J.B. v. Liberal School District, USD No. 480, Case No. 06-2359-MLB
(September 20, 2006). However, J.B. carries little persuasive weight. The cited order
permitting the use of pseudonym was issued ex parte by the assigned magistrate judge,
shortly after the case was filed and without any opportunity for the defendants to
respond. More importantly, according to the complaint in that action, the plaintiff “was
at all relevant times a minor,” defendants were officers in a small-town secondary
school district who were aware of a coach’s “dangerous propensities to abuse children,”
that they nonetheless allowed coach to “us[e] his role as a coach and youth mentor” to
sexually abuse plaintiff who was “between the ages of 12 and 15.” (Dkt. 1, ¶¶ 5, 13, 95,
111). Both the plaintiff’s motion to proceed by pseudonym (Dkt. 3, at 2) and the
magistrate judge’s ex parte order stressed that the plaintiff sought recovery for “alleged
sexual abuse and assault he suffered as a child.” (Dkt. 5, at 2).
Here, the Complaint does not allege that the plaintiff is a minor. See Doe v.
Cabrera, 307 .F.R.D. 1, 7 (D.D.C. 2014) (“Where victims are not minors, courts are
generally less inclined to let the alleged victim proceed in litigation under a
pseudonym.”); Doe v. Porter, 370 F.3d 558, 561 (6th Cir.2004) (district court did not
abuse its discretion in allowing pseudonym where case was “brought on behalf of very
young children, to whom we grant a heightened protection”).
17

The Complaint in the present action alleges that plaintiff’s 2014 complaint
resulted in criminal charges against two Haskell students, but does not indicate how
those charges were resolved or whether she was publicly identified. The defendants
oppose the motion to proceed by pseudonym, and represent that
[t]he facts and circumstances of this case are known in the community and
the identities of the individuals involved have been revealed in multiple
court proceedings including three trials. The individuals Plaintiff accuses
of rape have been tried, but not convicted, and Plaintiff has testified in
open court regarding this matter at least three times.
(Dkt. 61, at 3).
In her Reply, plaintiff only partially challenges these representations. She asserts
that one of the male students involved in the alleged 2014 incident has pled guilty to
aggravated battery, but not rape, (Dkt. 69, at 2), and points out that “[t]he news media
have not reported [her] name as a complaining witness.” Id. at 3-4. Plaintiff does not
contest the representation that plaintiff has testified in open court during three trials,
and that the facts are generally known in the Lawrence community. And the absence of
any reporting may indicate media disinterest rather than restraint. Plaintiff has failed to
show any likelihood that the news media are interested in or would report on the
present action.
The Complaint alleges plaintiff suffered emotionally from the assaults and the
alleged misconduct of the defendants, but plaintiff supplies no evidentiary support for
these claims in conjunction with her motion to proceed by pseudonym. (Dkt. 56).
Rather, plaintiff’s motion relies on her allegations alone. Cf. Doe v. Bell Atl. Bus. Sys.
Servs., 162 F.R.D. 418, 422 (D. Mass. 1995) (granting use of pseudonym in light of
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“persuasive, substantive evidence demonstrating ‘a compelling need for privacy ...
[that] outweighs the rights of the defendants and the public to open proceedings’”).
Moreover, the use of a pseudonym would likely be temporary at best. See Doe v.
Cabrera, 307 F.R.D. at 10 (granting use of pseudonym during preliminary stages of
litigation but observing that allowing the use of a pseudonym during trial would serve
“as a subliminal comment on the harm the alleged encounter … has caused the
plaintiff”); E.E.O.C. v. Spoa, LLC, 2013 WL 5634337, at *3 (D. Md. Oct. 15, 2013) (finding
that during ultimate trial “grant of anonymity would implicitly influence the jury”).
The plaintiff has failed to point to any specific injury which would arise from the use of
her actual identity during the pretrial phase of the case.
Courts facing similar actions for sexual assaults or harassment by employers or
in university settings have generally required adult plaintiffs to proceed in their own
name. See Doe v. Shakur, 164 F.R.D. 359, 361–62 (S.D.N.Y. 1996); Doe v. Bell Atlantic, 162
F.R.D. 418, 422 (D. Mass. 1995); Doe v. University of Rhode Island, 1993 WL 667341, at *3
(D.R.I. Dec. 28, 1993); Doe v. Hallock, 119 F.R.D. at 640, 644 (S.D. Miss. 1987). This is the
appropriate result here. The plaintiff is authorized and directed to proceed in the
present action under her own name.5

Defendants have moved for leave to file a surreply, in order to respond to the plaintiff’s argument in her
Reply (Dkt.69, at 2), that the government’s opposition to the use of a pseudonym violates Department of
Justice Guidelines, and further reflects defendants’ “deliberate indifference to Plaintiff’s privacy,” and
indeed a desire to “publicize this young woman’s name.”
Leave to file the surreply is granted. As the Surreply points out, the cited Guidelines merely
indicate that government officers should refrain from publicly identifying witnesses, including sexual
assault victims, in criminal cases. This is not a criminal action, but an action by the plaintiff seeking
monetary damages. The burden is on the plaintiff to establish the need for the use of a pseudonym. As
noted above, plaintiff has cited no authority for the proposition that an adult plaintiff asserting claims

5

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Finally, the court notes that plaintiff has moved to seal any or all of defendants’
summary judgment motion exhibits “that disclose Plaintiff’s identity.” (Dkt. 57, at 1).
Plaintiff’s motion rests on her that fact she “filed suit seeking anonymity,” and that any
records containing her name are records protected under the Family Education Rights
and Privacy Act (FERPA), 20 U.S.C. § 1232g, 34 C.F.R. 99.1. However, plaintiff submits
no authority for the blanket sealing of all exhibits which happens to bear her name.
Generally, a student’s name is considered “directory information” which is not
protected under FERPA. See § 1232g(a)(5).
In support of her motion, plaintiff cites State v. Bd. of Educ. of Unified Sch. Dist. No.
305, Saline Cty., 13 Kan. App. 2d 117, 120, 764 P.2d 459, 461 (1988), which determined
that a Kansas school board did not violate the Kansas Open Meetings Act, K.S.A. 754317, by addressing an asbestos removal project, and administratrators involved in the
removal, in executive session. The court finds the case is not relevant to the plaintiff’s
request for relief.
Plaintiff’s blanket motion to seal is directly tied to her request to prosecute this
action anonymously. As noted earlier, the request to proceed by pseudonym is denied.
“[C]ourts have long recognized a common-law right of access to judicial records,”
which are presumptively available for public access. Mann v. Boatright, 477 F.3d 1140,
1149 (10th Cir.2007). Plaintiff has failed to overcome this presumption.

relating to an alleged sexual assault is automatically entitled to the use of a pseudonym. The weight of
authority holds to the contrary.
Finally, the court rejects as wholly unfounded the insinuation that the defendants, simply by
opposing her request for use of a pseudonym are otherwise seeking to “publicize” plaintiff’s name.

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IT IS ACCORDINGLY ORDERED this 17th day of July, 2017, that the plaintiff’s
Motion to Amend (Dkt. 52) and defendants’ Motions to Dismiss (Dkt. 29, 31, 33, 35) and
for Leave (Dkt. 70) are granted as provided herein; plaintiff’s Motion to Proceed and to
Seal (Dkt. 55, 57) are denied.

___s/ J. Thomas Marten_
J. THOMAS MARTEN, JUDGE

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