DOE et al v. United States
ORDER denying 10 plaintiffs' Motion for an Order waiving strict compliance with Federal Rule of Civil Procedure 10(a). Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
and JOHN DOE,
CASE NO. 16-cv-13038
HON. GEORGE CARAM STEEH
UNITED STATES OF
ORDER DENYING PLAINTIFFS’ MOTION FOR AN ORDER
WAIVING STRICT COMPLIANCE WITH FEDERAL
RULE OF CIVIL PROCEDURE 10(a) (Doc. 10)
This Federal Tort Claims Act (“FTCA”) action, brought by plaintiffs
Michael Ericksen and John Doe, arises out of the same events as Doe’s
prior Bivens lawsuit against United States Customs and Border Protection
officers. In his prior Bivens action, Doe alleged violations of his Fourth
Amendment rights arising out of his arrest after marijuana and drug
paraphernalia were found in the trunk of his vehicle at the international
border at the Blue Water Bridge in Port Huron, Michigan. Now before the
court is Doe’s motion to proceed anonymously in this case, to be identified
on the docket sheet and court caption in all papers filed in this court as
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“John Doe.” The government opposes the motion on the grounds that Doe
has failed to show a compelling reason to deviate from the general rule that
court proceedings should be open to the public. For the reasons set forth
below, plaintiffs’ motion to allow Doe to proceed anonymously shall be
In Doe’s prior Bivens action arising out of the same facts presented in
this suit, the court denied Doe’s motion for a protective order to conceal his
identity. As a result of Doe’s June, 2012 arrest after marijuana and drug
paraphernalia were found in his car at the international border, Doe pled
guilty in state court to a misdemeanor offense. At the time of his arrest, he
was 19 years of age. Pursuant to the Holmes Youthful Trainee Act
(“HYTA”), MCL § 762.11et seq., based on Doe’s age and other factors, his
criminal record was sealed.
In Doe’s prior federal lawsuit, this court rejected Doe’s argument that
his identity should be shielded in order to achieve the purposes of the
HYTA, finding that Doe had failed to articulate concerns that outweighed
the presumption of openness in judicial proceedings, and that plaintiff had
forfeited his ability to keep secret his actions at the international border
when he sued United States Customs and Border patrol agents. On
appeal, the Sixth Circuit ruled that this court did not abuse its discretion in
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denying Doe’s motion for a protective order to protect his identity, and
affirmed. D.E. v. John Doe, 834 F.3d 723, 728-29 (6th Cir. 2016).
However, the Sixth Circuit exercised its discretion to refer to Doe by his
initials in its published opinion.
The public disclosure of the identities of parties in a lawsuit is
required by Federal Rule of Civil Procedure 10(a). Only in exceptional
cases does a party’s desire to proceed anonymously trump the
presumption of disclosure. See Citizens for a Strong Ohio v. Marsh, 123 F.
App’x 630, 636 (6th Cir. 2005). “Identifying the parties to the proceeding is
an important dimension of publicness. The people have a right to know
who is using their courts.” Doe v. Blue Cross & Blue Shield United of
Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997). To determine whether to
allow a party to remain anonymous, some of the factors the court may
consider are: “(1) whether the plaintiff is suing to challenge governmental
activity; (2) whether the prosecution of the suit will compel the plaintiff to
disclose information ‘of the utmost intimacy’; (3) whether the litigation
compels plaintiff to disclose an intention to violate the law, thereby risking
criminal prosecution; and (4) whether the plaintiff is a child.” Marsh, 123 F.
App’x at 636 (citing Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004)). As
discussed in the court’s prior opinion denying Doe’s request for a protective
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order, the only factor Doe arguably can satisfy is the first one. Upon
consideration, Doe fails to meet that factor as well.
As to the first factor, only in “a very few cases challenging
governmental activity can anonymity be justified.” Doe v. Stegall, 653 F.2d
180, 186 (5th Cir. 1981). The Sixth Circuit has recognized the need for
anonymity only in those exceptional cases where plaintiffs are suing to
challenge government activity which requires “plaintiffs to reveal their
beliefs about a particularly sensitive topic that could subject them to
considerable harassment.” Porter, 370 F.3d at 560. Porter involved the
possible disclosure of plaintiffs’ religious beliefs in a suit concerned parents
brought to challenge the teaching of the bible in public schools. Id. at 559.
In that case, the disclosure of the parents’ identities was likely to subject
them to public attacks as a letter to the editor and an article in the local
media had already threatened to harm the plaintiffs if their identifies were
made known. Id. Here, by contrast, there is no suggestion that Doe risks
any public persecution if his identity is revealed. Notably, Doe’s identity is
already available based on the prior lawsuit, and plaintiff can point to no
harassment or public ramifications based on his public disclosure there.
Also, considering the substance of the government activity that is
being challenged here weighs against allowing Doe to proceed
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anonymously. This court and the Sixth Circuit have already found that the
government conduct at issue here comports with Constitutional
requirements based on the border search exception and the doctrine of
qualified immunity. This lawsuit filed under the Federal Torts Claims Act,
arises out of the same facts and circumstances as Doe’s Bivens claim;
thus, the court anticipates granting the government’s pending motion to
dismiss under the doctrines of claim preclusion and issue preclusion.
Given the lack of merit to plaintiffs’ lawsuit, there is no compelling
governmental interest sought to be enforced which would justify departing
from the general presumption of full disclosure in judicial proceedings.
Second, Doe cannot show that this case involves the sort of sensitive
and highly private information which courts have found deserving of
anonymity such as birth control, abortion, homosexuality, or religious
beliefs capable of subjecting plaintiffs to considerable harassment. See
Porter, 370 F.3d at 560-61; Southern Methodist Univ. Ass’n of Women Law
Students v. Wynne & Jaffee, 599 F.2d 707, 712-13 (5th Cir. 1979). Unlike
cases where courts have allowed for plaintiffs to remain anonymous,
plaintiff here did not put himself in jeopardy of any hostile public reaction
from those opposing his viewpoint. See Stegall, 653 F.2d at 186.
Third, Doe does not risk criminal conviction by bringing this lawsuit
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nor disclose any intent to violate the law. Doe has already pled guilty to the
misdemeanor offense in state court, and that criminal matter is now closed.
Fourth, plaintiff was 19 years old at the time of his arrest on June 22, 2012,
making him about 24 years old now. Courts have generally only granted
protection to very young children. Porter, 370 F.3d at 561. Under the four
factors identified by the Sixth Circuit in Porter, and considering the record
as a whole, this is not the sort of case deserving of an exception from the
general rule that court proceedings should remain open and the identity of
the parties should be made known to the public.
In the motion now before the court, Doe argues that he should be
allowed to proceed anonymously because (1) this court should refrain from
interfering with Michigan’s objectives in the HYTA, (2) Doe’s interest in
pursuing his federal Constitutional and statutory rights outweigh the normal
requirement that litigants be identified, and (3) the public still will be allowed
to identify him by name by referring to his prior lawsuit which is identified on
the electronic docket as a possible companion case. None of his
arguments suggest that this court should treat his desire to remain
anonymous now any differently than it did in denying his same request in
his prior related lawsuit.
The court rejects Doe’s argument that requiring him to proceed under
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his own name, rather than anonymously, undermines the remedial
provisions of the HYTA. Doe argues that HYTA’s anonymity requirement is
intended to reduce the risk that persons aged 17 to 23 are “stigmatized with
criminal records for unreflective and immature acts.” People v. Perkins,
107 Mich. App. 440, 444 (1981). If Doe’s criminal record is made public, it
is only because Doe chooses to make it public by suing the government.
The statute only applies to offenders who plead guilty, so that acceptance
of responsibility is necessarily part of the remedial purpose of HYTA.
Where an offender sues the government for the conduct of law
enforcement officers in effectuating his arrest, the offender is no longer
accepting responsibility for his own actions, and the remedial purpose of
the HYTA is no longer implicated. In short, there is no need for the court to
shield Doe from his own conduct.
Next, the court considers whether Doe’s stated interest in pursuing
his Constitutional and statutory rights justifies allowing him to proceed
anonymously. The government responds persuasively that Doe’s interest
in pursuing his federal rights is no different than any other FTCA or Bivens
plaintiff. Allowing plaintiff to proceed anonymously on this basis would
eviscerate the general rule that court proceedings are public and parties
must be named.
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Finally, the court considers Doe’s claim that even if the court allows
him to proceed anonymously in this action, the public could still discover his
identity by searching for the companion case identified on the electronic
docket. The government responds that if Doe’s real name is not in the
caption, an electronic search for cases in which he appears as a plaintiff or
defendant will not uncover his name. Thus, for practical purposes, if he is
allowed to proceed anonymously in this case, his identity will remain a
Because Doe has failed to show a compelling reason to deviate from
the general rule that parties to a lawsuit must be named, Doe’s motion to
waive compliance with Federal Rule of Civil Procedure 10(a) (Doc. 10) is
Should John Doe wish to remain anonymous, Doe remains free to
voluntarily dismiss this lawsuit before he is identified on any court papers.
Accordingly, the court shall not identify Doe on any court documents until
January 31, 2017, so that Doe may have an opportunity to withdraw this
IT IS SO ORDERED.
Dated: January 19, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 19, 2017, by electronic and/or ordinary mail.
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