Doe v. Dordoni

Filing 16

MEMORANDUM, OPINION, AND ORDER for proceedings held before Magistrate Judge H. Brent Brennenstuhl, re 4 Motion for Permission to Use Pseudonym. Plaintiff's motion for leave to prosecute this action under a pseudonym (DN 4 ) is GRANTED. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16-CV-00074-JHM
JOHN DOE

PLAINTIFF

VS.
GEORGE DORDONI

DEFENDANT
MEMORANDUM, OPINION,
AND ORDER

Before the Court is the motion of Plaintiff John Doe (“Doe”) for permission to continue
use of a pseudonym in the prosecution of this case (DN 4). The Defendant has responded in
opposition (DN 9). On August 24, 2016 the undersigned conducted a hearing on the motion.
Appearing on behalf of Plaintiff was Brian L. Schuette. Appearing on behalf of the Defendant
was Ena Viteskic. The plaintiff also appeared at the hearing and offered testimony in support of
the motion. The matter stands submitted to the undersigned United States Magistrate Judge for
ruling.
Nature of the Case
Doe (a pseudonym) was born in Saudi Arabia and is a citizen of Pakistan. He attended
Western Kentucky University (“W.K.U.”) under an F-1 student visa through the end of the fall
2014 semester. Although raised in the religion of Islam, Doe initially became interested in
Christianity prior to coming to the United States. Later, while attending W.K.U., he began
attending Christian church services and contemplated converting from Islam to Christianity. He
confided this to some of his Muslim friends, who warned him of possible repercussions under

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Islamic law.

He also confided this to his uncle, which apparently led to Doe’s father

withdrawing his financial support, leaving Doe unable to enroll in classes for the spring 2015
semester (DN 1).
In January, 2015 Doe contacted Defendant, George Dordoni (“Dordoni”), an
International Student & Scholar Advisor in W.K.U.’s International Student Office, seeking
advice about maintaining his student visa status until he was able to re-enroll in classes. Doe
alleges that Dordoni counseled him on the process for submitting his Form I-20 in order to obtain
a Certificate of Eligibility for Non-Immigration (F-1) Student status. Doe also alleges that
Dordoni assured him he could depart the United States to visit family abroad and the he would
be granted re-entry to complete his studies at W.K.U.
Doe contends that, in reliance upon Dordoni’s advice, he departed the United States on
February 14, 2015, for a one-month visit with his family. He traveled to Saudi Arabia, and Doe
recounts that he was forcibly detained by his family for the purpose of re-indoctrinating him into
the teachings of Islam, including physical punishment if he failed to follow religious doctrine.
This continued for four months, until he feigned resignation of his interest in Christianity and his
father consented to his return to the United States. Thereafter, he contends he again contacted
Dordoni to confirm his immigration status and was assured that his F-1 Visa would not expire
until 2017 (Id.).
Upon his arrival in the United States, however, he was detained by immigration officials
and advised that records in the Student Exchange and Visitor Information System (“SEVIS”)
indicated he no longer had a valid student visa as a result of failing to enroll as a full time student
during the spring 2015 semester and that he had failed a psychological evaluation. He contends
he was held in detention from May 17, 2015 to June 17, 2015, when he was paroled on

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application for asylum status. Doe contends that Dordoni was negligent in providing him with
immigration advice and in submitting inaccurate information to SEVIS, which resulted in his
detention (Id).
Doe’s Motion
Doe’s motion requests leave to continue his prosecution of the case anonymously under
the pseudonym, as he fears disclosure of his name could subject him or his family to religious
persecution due to the public revelation of his conversion from Islam to Christianity. During the
hearing he testified that he is considered an apostate of Islam and has been shunned by his
Muslim former friend who warned him that he could be subject to a fatwa. A fatwa is an Islamic
religious edict or proclamation. Toma v. Gonzales, 189 F. App’x. 492, 499 (6th Cir. 2006), see
also United States v. Sedaghaty, 728 F.3d 885, 920 n.5 (9th Cir. 2013) (“A fatwa issued by a
cleric ‘is the equivalent of a ruling on a particular issue regarding Islam or Muslims, and it is
incumbent upon anyone who follows the person issuing the fatwa to follow the advice given.’”).
Doe testified that conversion to Christianity is considered an offense for which he could be
denounced as wajib-ul-qatal, or deserving of death, and a fatwa calling for his death could issue.
He notes that he has recently been granted asylum status based on religious persecution. Doe
admitted, however, that he has only been told that a fatwa could be issued, and no one has told
him that one has actually been issued, nor has he been directly threatened at this point.
Dordoni’s Opposition
Dordoni notes that proceeding by pseudonym is an exception to the general rule that
parties must prosecute cases in their own name.

He argues that Doe has, as most, only

demonstrated a general fear of persecution and has failed to demonstrate that the danger is more
than speculative. Unlike cases in which a plaintiff proceeds anonymously against a public entity,

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Dordoni notes that this action is between two individuals and that he has an interest in protecting
his professional reputation and the public is entitled to know the identity of the person making
claims against him.

Additionally, Dordoni asserts that Doe’s extensive recitations in his

complaint of the facts associated with Christianity were unnecessary to his statement of a cause
of action and he has thus created his own problem. Any information relative to religious issues
arising during discovery or in pleadings, Dordoni contends, could have been dealt with by way
of sealing portions of the court record.
Discussion
Rule 10(a) of the Federal Rules of Civil Procedure requires that a complaint state the
names of all parties. A plaintiff may be granted exemption from this requirement under certain
circumstances in which the Court determines a plaintiff’s privacy interest substantially
outweighs the presumption of open judicial proceedings.

A plaintiff may be entitled to

anonymity where (1) plaintiff sues to challenge governmental activity; (2) prosecution of the suit
will require the plaintiff to disclose information “of the utmost intimacy”; (3) the litigation
compels the plaintiff to disclose an intention to violate the law, thereby risking criminal
prosecution; or (4) the plaintiff is a child. Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004).
With regard the second category, the Sixth Circuit has observed that:
Religion is perhaps the quintessentially private matter. Although
they do not confess either illegal acts or purposes, the [plaintiffs]
have, by filing suit, made revelations about their personal beliefs
and practices that are shown to have invited an opprobrium
analogous to the infamy associated with criminal behavior.
(Id.) (quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981)). Here, the issue of Doe’s
religious conversion qualifies under the “utmost intimacy” category as a basis upon which
anonymity may be appropriate. However, the analysis does not end here.

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The 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. Warren Co., No. 1:12-cv-789, 2013 U.S. Dist. LEXIS
25423, at *5 (S.D. Ohio Feb. 25, 2013). In order to satisfy this burden in the context of fear of
retaliation, the risk must not merely be hypothetical but based on real evidence. “A plaintiff can
support his fear by demonstrating the need for anonymity to prevent retaliation, the
reasonableness of the plaintiff’s fear, the severity of the threatened harm, and the plaintiff’s
vulnerability.” Doe v. Snyder, No. 12-11194, 2012 U.S. Dist. LEXIS 54492, at *5 (E.D. Mich.
Apr. 18, 2012) (quoting Doe v. Shalushi, No. 10-11837, 2010 U.S. Dist. LEXIS 77331, at *3
(E.D. Mich. July 30, 2010)). Balanced against this is whether the defendant is forced to proceed
with insufficient information to present their arguments against the plaintiff’s case. Id.
Here, Dordoni has not contested Doe’s contention that his conversion from Islam to
Christianity could place him at risk for possible retaliation, or that his family might also be at
risk as a consequence. Dordoni has questioned the extent to which this is more than a remote
possibility, as 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. However, as the District
Court for the District of Columbia observed, “Fatwas are not publicly distributed; hence, the fact
that one has been issued against a specific person must be gleaned indirectly.” Elahi v. Islamic
Republic of Iran, 124 F. Supp.2d 97, 103 n.8 (D.D.C. 2000). As Doe testified during the
hearing, it is unlikely that someone intending to do him harm would advise him of their intention
in advance.
This is not an instance in which a party fears embarrassment, ostracism or ridicule
resulting from disclosure of personal information in the course of a lawsuit. This is an instance

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in which the plaintiff has articulated a rational fear of serious personal injury or death based upon
religious doctrine. Moreover, Doe’s true identity is known to Dordoni and he faces no prejudice
in his ability to gather evidence and defend against the case. As to Dordoni’s contention that
Doe created his own dilemma by including information in the complaint about religion, the
undersigned does see a rational basis for including this information as part of the facts necessary
to understand why Doe was unable to return to the United States as promptly as he had initially
planned and arguably had to rely on Dordoni’s expert advice. On the whole, prudence dictates
erring on the side of caution and granting Doe’s request to pursue the case under the pseudonym.
Order
WHEREFORE, Plaintiff’s motion for leave to prosecute this action under a pseudonym
(DN 4) is GRANTED.

August 29, 2016

Copies:

Counsel

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