Doe et al v. Hood et al

Filing 43

ORDER granting in part and denying in part 18 Motion to Seal Document 17 and to Proceed Under Pseudonyms. Signed by District Judge Carlton W. Reeves on 6/2/17. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ARTHUR DOE; BRENDA DOE; CAROL
DOE; DIANA DOE; and ELIZABETH
DOE
V.

PLAINTIFFS

CAUSE NO. 3:16-CV-00789-CWR-FKB

JIM HOOD; MARSHALL FISHER;
CHARLIE HILL; COLONEL CHRIS
GILLARD; and LT. COLONEL LARRY
WAGGONER

DEFENDANTS

ORDER
In what follows, the Court considers plaintiffs’ motion to proceed under pseudonyms.
Plaintiffs have also requested to file under seal documentation revealing their identities.
Defendants have responded in opposition to each request. After reviewing the briefing and
applicable law, the Court is ready to rule.
I.

Factual and Procedural History
Pseudonymous plaintiffs A, B, C, D, and E Doe are residents of Mississippi. In this

lawsuit they allege that they are required to register as sex offenders solely as a result of a prior
conviction under Mississippi’s “Unnatural Intercourse” statute or an equivalent out-of-state
offense. The “Unnatural Intercourse” statute criminalizes, in relevant part, “the detestable and
abominable crime against nature committed with mankind.” Miss. Code Ann. § 97-29-59. The
Mississippi Supreme Court has defined the statute to encompass the behavior of oral and anal
sex, commonly referred to as “sodomy.” See, e.g., Miller v. State, 636 So. 2d 391 (Miss. 1994);
State v. Davis, 79 So. 2d 452 (Miss. 1955). Plaintiffs assert that this conduct is protected by the
Due Process Clause of the Fourteenth Amendment, and they should not be subjected to the
cumbersome and stigmatizing requirements imposed by the Mississippi Sex Offender Registry

(“MSOR”). Alternatively, they argue that their inclusion on the MSOR violates the Fourteenth
Amendment’s Equal Protection Clause.
In support of these allegations, plaintiffs have submitted a redacted attorney affidavit
along with redacted MSOR reports revealing their true identities. Plaintiffs seek the Court’s
permission to file under seal full and complete copies of the affidavit and MSOR reports, so that
they may establish standing. Assuming those un-redacted documents satisfy the requirements of
standing, plaintiffs wish to prosecute this suit pseudonymously.
II.

Legal Standard
Litigating under pseudonyms “requires a balancing of considerations calling for

maintenance of a party’s privacy against the customary and constitutionally-embedded
presumption of openness in judicial proceedings.” Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.
1981). The Fifth Circuit has identified three factors “common to those exceptional cases in
which the need for party anonymity overwhelms the presumption of disclosure”: (1) plaintiffs
are “suing to challenge governmental activity; (2) prosecution of the suit compels plaintiffs to
disclose information ‘of the utmost intimacy;’ and (3) plaintiffs [are] compelled to admit their
intention to engage in illegal conduct, thereby risking criminal prosecution.” Id. at 185 (citing S.
Methodist Univ. Ass’n of Women Law Students v. Wynn & Jaffe, 599 F.2d 707 (5th Cir. 1979)).
These factors do not form a “rigid, three-step test for the propriety of party anonymity.”
Id. A party need not prove all three to proceed anonymously. Doe v. El Paso Cty. Hosp. Dist.,
No. EP-13-CV-406-DCG, 2015 WL 1507840, at *2 (W.D. Tex. Apr. 1, 2015) (citing Plaintiff B
v. Francis, 631 F.3d 1310, 1316 (11th Cir. 2011) and Stegall, 653 F.2d at 186). Nor are the
factors exclusive. The Fifth Circuit chose to “advance no hard and fast formula for ascertaining
whether a party may sue anonymously.” 653 F.2d at 186. Courts, therefore, have considered

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other circumstances, including whether plaintiffs would face threats of “violence or physical
harm by proceeding in their own names, and whether their anonymity posed a unique threat of
fundamental unfairness to the defendant.” Plaintiff B, 631 F.3d at 1316 (citing Stegall, 599 F.2d
at 713).
A motion to file identifying documentation under seal must overcome the “general right
to inspect and copy public records and documents, including judicial records and documents.”
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); see also United States v. Apothetech
RX Specialty Pharm. Corp., No. 3:15-CV-588-CWR-FKB, 2017 WL 1100818, at *1 (S.D. Miss.
Mar. 20, 2017) (“court records are presumptively in the public domain”). “However, the public’s
common law right is not absolute.” Sec. and Exch. Comm’n v. Van Waeyenberghe, 990 F.2d 845,
848 (5th Cir. 1993) (citing Nixon, 435 U.S. at 598). “In exercising its discretion, a district court
must ‘balance the public’s common law right of access against the interests favoring
nondisclosure.’” Test Masters Educ. Serv., Inc. v. Robin Singh Educ. Serv., Inc., 799 F.3d 437,
454 (5th Cir. 2015) (quoting Van Waeyenberghe, 990 F.2d at 848).
III.

Discussion
A.

Proceeding Under Pseudonyms

In this case, an application of the legal standard shows that plaintiffs should be allowed to
proceed under pseudonyms.
First, plaintiffs challenge governmental action. In their motion for summary judgment,
they ask this Court to adjudicate (1) whether enforcement of Mississippi’s “Unnatural
Intercourse” statute—by requiring plaintiffs to register as sex offenders—is invalid under
Lawrence v. Texas, 539 U.S. 558 (2003)1; and (2) whether Mississippi’s classification of out-of-

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In Lawrence, the Supreme Court held that a Texas statute criminalizing sodomy was unconstitutional as applied to
“two adults who, with full and mutual consent from each other, engaged in sexual practices common to a

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state offenses as statutorily equivalent to its “Unnatural Intercourse,” law, thereby requiring
registration as a sex offender, violates the Equal Protection Clause of the Fourteenth
Amendment. Each request plainly challenges the constitutionality of state action, as applied to
plaintiffs and the putative class they seek to represent. The public interest in this proceeding,
then, pertains more to its outcome than to its individual participants. See Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 190 (2d Cir. 2008) (“because of the purely legal nature of the
issues presented . . . there is an atypically weak public interest in knowing the litigants’
identities”).
Second, this suit requires the disclosure of plaintiffs’ private lives, including information
of “the utmost intimacy.” SMU, 599 F.2d at 713; see also Doe v. Mall, 829 F. Supp. 866, 868 n.2
(S.D. Miss. 1993) (allowing a plaintiff alleging rape as part of a premises liability claim to
proceed under a pseudonym due to the “private nature of her allegations”). Here, plaintiffs are
required to reveal information concerning private, consensual sexual conduct “common to a
homosexual lifestyle.” Lawrence, 539 U.S. at 579. The Fifth Circuit explicitly listed
homosexuality among those “matters of a sensitive and highly personal nature . . . [when] the
normal practice of disclosing the parties’ identities yields to a policy of protecting privacy in a
very private matter.” SMU, 599 F.2d at 713 (quotation marks and citation omitted); see also Doe
v. Griffon Mgmt. LLC, No. 14-2626, 2014 WL 7040390, at *2 (E.D. La. Dec. 11, 2014)
(“Examples of areas where courts have allowed pseudonyms include cases involving . . .
homosexuality.”).
Next, while plaintiffs do not intend to engage in illegal conduct, they have, “by filing
suit, made revelations about their personal . . . practices that are shown to have invited an

homosexual lifestyle.” 539 U.S. at 579. By contrast, conduct with minors or “persons who might be injured or
coerced or who are situated in relationships where consent might not easily be refused” is not protected. Id.

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opprobrium analogous to the infamy associated with criminal behavior.” Stegall, 653 F.2d at
186. Gay and lesbian citizens have suffered through a well-documented history of condemnation
and indignity. See Windsor v. United States, 699 F.3d 169, 182 (2d Cir. 2012) (“Perhaps the most
telling proof of animus and discrimination against homosexuals in this country is that, for many
years and in many states, homosexual conduct was criminal.”); see also Campaign for S. Equal.
v. Bryant, 64 F. Supp. 3d 906, 930-37 (S.D. Miss. 2014) (explaining that animus toward
homosexual conduct prevailed in Western culture for the past seven centuries, and recounting
various forms of discrimination and mistreatment of homosexuals throughout the United States,
including Mississippi). Membership on a sex offender registry has also been shown to garner
hatred and even deadly violence. See Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012)
(allowing plaintiffs to use pseudonyms in an equal protection challenge to placement on sex
offender registry); Doe v. Harris, 640 F.3d 972, 973 n.1 (9th Cir. 2011) (allowing plaintiff “to
proceed under a pseudonym because drawing public attention to his status as a sex offender is
precisely the consequence that he seeks to avoid by bringing this suit”); see also HUMAN RIGHTS
WATCH, NO EASY ANSWERS: SEX OFFENDER LAWS IN THE U.S. (2007), https://www.hrw.org/
reports/2007/us0907 (“Neighbors as well as strangers harass, intimidate and physically assault
people who have committed sex offenses. At least four registered sex offenders have been
killed.”); Austin Baird, Man Charged for Attacking Sex Offenders Greeted as a Hero by Some,
KTUU, Aug. 3, 2016, http://www.ktuu.com/content/news/Man-charged-for-attacking-sexoffenders-greeted-as-a-hero-by-some-389097252.html. Because these pleadings have the
potential to invite ire in response to both homosexual conduct as well as plaintiffs’ inclusion on
Mississippi’s sex offender registry, plaintiffs could reasonably expect “extensive harassment and
perhaps even violent reprisals if their identities are disclosed.” Stegall, 653 F.2d at 186.

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Finally, non-disclosure of plaintiffs’ identities does not materially disadvantage
defendants. Challenges testing the “constitutional, statutory, or regulatory validity of
governmental activity” often present questions of law, and “involve no injury to the
Government’s reputation.” SMU, 599 F.2d at 713 (quotation marks omitted). The State will be
able to defend its position—that at least some portion of Mississippi’s Unnatural Intercourse
statute was not invalidated by Lawrence, and that requiring sex offender registration for out-ofstate equivalent offenses does not violate equal protection—without disclosing plaintiffs’ names
to the public.
B.

Sealing Attorney Affidavit and MSOR Reports

The above findings, particularly those concerning plaintiffs’ safety, indicate that plaintiffs
should be granted leeway to preserve their anonymity. It may be that the least restrictive means
of preserving plaintiffs’ anonymity is not through sealing, but allowing only attorneys-of-record
to access plaintiffs’ personally identifying information, i.e., “restricting” those items on the
docket sheet. The parties shall consult with the Magistrate Judge concerning the specific means
of preserving plaintiffs’ anonymity.
IV.

Conclusion
Plaintiffs’ motion is granted. None of plaintiffs’ personally identifying information shall

be made public on the Court’s docket. Upon entry of an appropriate Protective Order, plaintiffs
shall conventionally file, under restricted access, full and complete copies of the attorney
affidavit and attached MSOR reports. Within 10 days of this Order, counsel shall contact the
chambers of the Magistrate Judge for entry of the case management order.
SO ORDERED, this the 2nd day of June, 2017.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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