Doe v. Kentucky Community and Technical College System et al

Filing 10

MEMORANDUM ORDER: (1) Plaintiff's Motion for Reconsideration 9 is DENIED; and (2) Plaintiff is directed to file an amended Complaint to contain his full name within 20 days of entry of this Order. Signed by Judge David L. Bunning on 3/2/2020. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT PIKEVILLE
CIVIL ACTION NO. 20-6-DLB
JOHN DOE

PLAINTIFF

v.

MEMORANDUM ORDER

KENTUCKY COMMUNITY &
TECHNICAL COLLEGE SYSTEM, et al.
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DEFENDANTS

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This matter is before the Court upon Plaintiff’s Motion to Reconsider the Court’s
prior Order which granted in part and denied in part Plaintiff’s Motion for Permission to
Proceed Under Pseudonyms. (Doc. # 9). Plaintiff asks the Court to reconsider because,
among other things, he claims that the revelation of his identity “will continue to have
severe [reputational] implications for Plaintiff.” Id. at 1. For the reasons set forth herein,
his Motion to Reconsider is denied.
Motions styled as requests for reconsideration are treated as motions to alter or
amend a judgment under Federal Rule of Civil Procedure 59(e). Inge v. Rock Fin. Corp.
281 F.3d 613, 617 (6th Cir. 2002). As Plaintiff correctly noted, Rule 59(e) allows a court
“to reconsider a final order or judgment.” (Doc. # 9 at 2). Plaintiff has not shown, however,
how the Court’s preliminary, non-appealable Order falls within the category of orders
eligible for reconsideration under Rule 59(e).1 See generally id. Further, “[a] motion to

A decision of a district court “is considered final when it terminates on the merits all issues
presented in the litigation and leaves nothing to be done except enforce by execution what has
been determined.” White v. Brown, 816 F.2d 683, 1987 WL 37134, at *1 (6th Cir. 1987)
(unpublished table decision) (citing Donovan v. Hayden, Stone, Inc., 434 F.2d 619, 620 (6th Cir.
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reconsider . . . does not afford parties an opportunity to reargue their case.” Cornett v.
Byrd, No. 6:04-cv-261-KKC, 2007 WL 805527, at *2 (E.D. Ky. Mac. 14, 2007) (quoting
Zink v. Gen. Elec. Capital Assurance Co., 73 F. App’x 858, *3 (6th Cir. 2003)); see also
Sault St. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)
(“A motion under Rule 59(e) is not an opportunity to reargue a case.”). Here, the Plaintiff
puts forth a number of the same arguments presented in his original motion. Compare
(Doc. # 3), with (Doc. # 9). Additionally, it is unclear why the arguments that are not
completely repetitive of those previously presented could not have been included in the
originally filed Motion. Moreover, much of Plaintiff’s brief relies on district court cases
from outside the Sixth Circuit, which are not binding on this Court. See generally (Doc. #
9). The Court could deny the Motion on these grounds alone. It will, however, take the
opportunity to explain further why reconsideration is inappropriate in this matter.
There are four situations in which a motion to reconsider may be granted pursuant
to rule 59(e): (1) “a clear error of law,” (2) “newly discovered evidence” which was not
previously available, (3) “an intervening change in controlling law,” (4) “or to prevent
manifest injustice.” GenCorp, Inc. v. Am. Intern. Underwriters, 178 F.3d 804, 834 (6th
Cir. 1999). While the Plaintiff has failed to specify why the matter before the Court meets
any of the four requirements for reconsideration, his argument seems to suggest his
Motion is based on the first and fourth factors. See generally (Doc. # 9). Having reviewed
its previous Order, the Court finds that there is no clear error of law and reconsideration
is not necessary to prevent injustice.

1970)). Orders regarding discovery motions and orders dismissing “fewer than all parties or
claims,” for example, are not considered final. Id. (citations omitted).
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“In considering whether to grant [leave to proceed under pseudonyms] we start
from the premise that proceeding pseudononymously is the exception rather than the
rule.” Endangered v. Louisville/Jefferson Cty. Metro. Gov. Dept. of Inspections, No. 3:06cv-250-S, 2007 WL 509695, at *1 (W.D. Ky. Feb. 12, 2007). As the Court explained
previously, it looks to four factors to determine whether a party should be permitted to
litigate using pseudonyms: (1) whether plaintiffs are challenging a governmental activity,
(2) whether plaintiffs will be forced to “disclose information ‘of the utmost intimacy,’” (3)
whether information disclosed during litigation may lead to the possibility of criminal
prosecution of the plaintiff, and (4) “whether the plaintiffs are children.”2 Doe v. Porter,
370 F.3d 558, 560 (6th Cir. 2004) (quoting Doe v. Stegall, 653 F.2d 180, 185–86 (5th Cir.
1981)). These factors are only one piece of the puzzle, however. Ultimately, “[t]he burden
is on the Plaintiff to demonstrate that the need for anonymity substantially outweighs both
the presumption that a party’s identity is public information and the risk of unfairness to
the opposing party.” Doe v. Dordoni, No. 1:16-CV-74-JHM, 2016 WL 4522672, at *2
(W.D. Ky. Aug. 29, 2016) (citing Doe v. Warren Cty., Ohio, No. 1:12-cv-789, 2013 WL
684423, at *5 (S.D. Ohio Feb. 25, 2013)). Showing that a plaintiff’s interest in anonymity
“outweighs the right of access to public records” is a “heavy burden.” Warren Cty., Ohio,
2013 WL 684423, at *3.
Plaintiff first argues that anonymity is appropriate because he is challenging the
decision of a governmental entity—a state university’s decision to fire him. (Doc. # 9 at
6–7). However, “the simple fact that plaintiff sues a governmental entity does not give
the court more reason to grant [his] request for anonymity.” K.G. v. Bd. of Educ. of
The Court previously noted, (Doc. # 8 at 3), and the Plaintiff agrees, (Doc. # 9 at 6), that
the third and fourth factors are inapplicable here.
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Woodford Cty., Ky., No. 5:18-cv-555-JMH, 2019 WL 4467638, at *3 (E.D. Ky. Sept. 18,
2019) (quoting Doe v. Pittsylvania Cty., Va., 844 F. Supp. 2d 724, 730 (W.D. Va. 2012)).
Rather, this Circuit “has recognized the need for anonymity only in those exceptional
cases where plaintiffs are suing to challenge a government activity which requires
‘plaintiffs to reveal their beliefs about a particularly sensitive topic’” like religion “that could
subject them to considerable harassment.” Eriksen v. United States, No. 16-cv-13038,
2017 WL 264499, at *2 (E.D. Mich. Jan. 20, 2017) (quoting Porter, 370 F.3d at 560); see
also Porter, 370 F.3d at 560 (considering the governmental activity factor, along with
others, to determine that plaintiffs could proceed anonymously when challenging the
teaching of the Christian Bible during school hours because letters to the editor in local
media outlets threatened plaintiffs for bringing the challenge); John Does 1-4 v. Snyder,
No. 12-11194, 2012 WL 1344412, at *1–2 (E.D. Mich. Apr. 18, 2012) (considering the
governmental factor when those listed on the sex-offender registry sought to challenge
the constitutionality of the law requiring registration of sex offenders and there was
evidence, including comments on news articles and a death threat, that indicated plaintiffs
would likely be subject to retaliation for their actions).
Moreover, a sister court in this district has recognized that courts are more likely
to allow anonymity when a Plaintiff brings an action “against a governmental entity [and]
‘seek[s] to have a law or regulation declared invalid.’” K.G., 2019 WL 4467638, at *3
(emphasis added) (quoting Univ. of Pittsburgh, 2018 WL 1312219, at *2). This is not the
situation Plaintiff finds himself in. Here Plaintiff is not challenging a government or
university policy writ large which could ultimately impact others in the community; rather,
he is merely challenging how his employer applied its policies and handled the sexual

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misconduct allegations against him. Thus, this factor weighs against allowing the Plaintiff
to proceed anonymously.
Next, Plaintiff argues that the case will require him to disclose intimate information,
and therefore, he should be allowed to proceed using a pseudonym. (Doc. # 9 at 7–8).
Specifically, Plaintiff suggests that he will have to share information about the sexual
misconduct allegations in order to “establish that the outcome [of the disciplinary process]
was erroneous,” and prevail on his Title IX claim. Id. at 8. This factor, which considers
“whether prosecution of the action will compel Plaintiff to disclose information ‘of the
utmost intimacy,’ concerns ‘matters of a sensitive and highly personal nature, such as
birth control, abortion, homosexuality or the welfare rights of illegitimate children or
abandoned families.’” Doe v. Carson, No. 1:18-cv-1231, 2019 WL 1981886, at *1 (W.D.
Mich. Jan 4, 2019) (quoting G.E.G. v. Shinseki, No. 1:10-cv-1124, 2012 WL 381589, at
*2 (W.D. Mich. Feb. 6, 2012)). The matter before the Court obviously does not fall within
any of those identified categories. While courts have previously allowed plaintiffs in cases
related to sexual misconduct to proceed anonymously, presumably relying on the fact
that intimate details would be revealed, see, e.g., Doe 1 v. Mich. Dep’t of Corr., No. 1314356, 2014 WL 2207136, at *10 (E.D. Mich. May 28, 2014), the affidavit of Plaintiff’s
own attorney, (Doc. # 9-3), demonstrates that this is not a hard-and-fast rule, (Doc. # 9 at
11–13) (explaining that the affidavit shows that plaintiffs in nearly 30% of cases
challenging the outcomes of sexual misconduct disciplinary proceedings used "his or her
real name, and the record in most of those cases show that this decision was not
voluntary").

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Additionally, based on the allegations alleged against Plaintiff—that he “touched
[students] in an unwanted manner and commented on their appearances,” (Doc. # 1 at
4),—the Court finds that this litigation would not require him to divulge intimate
information. Perhaps if Plaintiff had been accused of rape or an inappropriate relationship
with a student, for example, the calculus would be different as he would likely have to
disclose more intimate information. Here, however, the Court finds that, even if the nature
of the allegations are discussed in detail in this litigation, Plaintiff will not have to divulge
information “of the utmost intimacy.” Accordingly, this factor weighs against anonymity.
Finally, Plaintiff makes a more general argument that the Plaintiff’s privacy
interests outweigh the presumption of openness in judicial proceedings. (Doc. # 9 at 9–
11). The Court, however, disagrees. Once again, Plaintiff argues that his reputation will
be harmed if he is required to proceed under his own name; Plaintiff, however, is merely
speculating. Despite case law indicating the importance of evidence,3 Plaintiff fails to put
forth actual evidence that retaliation against him will occur if he does not proceed
anonymously. See generally (Doc. # 9). Rather, Plaintiff generally argues that he will
suffer reputational harm which will impact both his professional and personal life. Id. at
10–11. In this Circuit, however, another district court found that the potential for the
Plaintiff to be ridiculed, embarrassed, or stigmatized as a result of a lawsuit, or to be
scrutinized by future employers is not sufficient to require the use of pseudonyms. See

See Dordoni, 2016 WL 4522672, at *2 (though ultimately finding anonymity to be
appropriate, the court noted that “Doe cannot point to specific evidence that a fatwa has been
issued which calls for him to be harmed and no one has thus far directly threatened him.”);
Endangered, 2007 WL 509695, at *2 (distinguishing Endangered from previous cases by noting
that in previous cases where anonymity was appropriate “[t]here was actual evidence of
threatening and intimidating behavior” including angry letters to the editor and articles while in
Endangered there was only “an unsubstantiated articulation of subjective fears”).
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Univ. of Pittsburgh, 2018 WL 1312219, at *2 (“In the Court’s view, concerns about
annoyance, embarrassment, economic harm and scrutiny from current or prospective
employers do not involve information ‘of the utmost intimacy’; rather, they constitute the
type of concerns harbored by other similarly situated employees who file retaliation
lawsuits under their real names.”). Additionally, as noted in the Court’s prior opinion,
Plaintiff has chosen to sue his former employer, knowing that such a choice may open
him up to public scrutiny. See D.E. v. Doe, 834 F3d 723, 728 (6th Cir. 2016) (reiterating
the district court’s finding, in response to plaintiff’s argument that there may be “potential
negative scrutiny from future employers” if his identity was revealed, that he “forfeited his
ability to keep secret his actions at the international border . . . when he sued United
States Customs and Border Patrol agents”). Thus, the Court finds Plaintiff’s reputational
arguments to be unavailing.
Moreover, the cases previously cited by the Court, see (Doc. # 8 at 3), which
Plaintiff references in support of his argument for anonymity, (Doc. # 9 at 5), are
distinguishable from the case at bar. In those cases the student-Plaintiffs were suing a
university alleging problems with the sexual misconduct disciplinary process, among
other things.4 See Doe v. University of Dayton, 766 F. App’x 275, 278–80 (6th Cir. 2019);
Doe v. Baum, 903 F.3d 575, 578–80 (6th Cir. 2018); Doe v. Miami University, 882 F.3d
579, 584–88 (6th Cir. 2018). Here, the Plaintiff is a faculty member accused of sexual
misconduct against students at his university. (Doc. # 1 at 3–4). Plaintiff argues that this
distinction is of no consequence, (Doc. # 9 at 5–6); the Court disagrees. Rather, the
Court finds that the distinction between whether the plaintiff is a student or faculty member
Plaintiff also references a number of cases from around the country where motions to
proceed anonymously filed by student-Plaintiffs were not opposed. (Doc. # 9 at 5).
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to be relevant in determining whether anonymity is appropriate. See K.S. v. Detroit Pub.
Schs., No. 12-12214, 2015 WL 13358204, at *3 (E.D. Mich. July 22, 2015) (finding
anonymity to be appropriate when “a student . . . was preyed upon by his teacher”). The
Court finds here that the Plaintiff has not met the high burden of showing his privacy
interests outweigh the public’s interest in judicial openness.
Finally, as Plaintiff correctly notes, it is within the discretion of the Court to
determine if anonymous litigation is appropriate. (Doc. # 9 at 3) (citing Porter, 370 F.3d
at 560). For all these reasons the Court again finds that proceeding under pseudonyms
is not appropriate in this matter. Thus, the Court will not reverse its previous decision and
the Motion for Reconsideration (Doc. # 9) is denied. Accordingly,
IT IS ORDERED as follows:
(1)

Plaintiff’s Motion for Reconsideration (Doc. # 9) is DENIED; and

(2)

Plaintiff is directed to file an amended Complaint to contain his full name

within twenty (20) days of the entry of this Order.
This 2nd day of March, 2020.

J:\DATA\ORDERS\PikeCivil\2020\20-06 Mtn to Reconsider Order on Pseudonyms.docx

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