B.L. v. Lamas et al
Filing
69
MEMORANDUM ORDER denying 53 MOTION for Leave to Proceed Anonymously filed by B.L. Signed by Magistrate Judge Martin C. Carlson on March 17, 2017. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
B.L.,
:
:
Plaintiff
:
:
v.
:
:
REBECCA AMBER ZONG, et al., :
:
Defendants
:
Civil No. 3:15-CV-1327
(Judge Mariani)
(Magistrate Judge Carlson)
MEMORANDUM ORDER
I.
Factual Background
This case comes before us for consideration of a motion filed by the plaintiff,
B.L., for leave of court to continue to proceed under a pseudonym in this litigation.
(Doc. 53.) On July 30, 2015, the plaintiff, a state inmate acting through counsel, filed
this civil complaint under the pseudonym, B.L., against an array of correctional
defendants. (Doc. 1.) The well-pleaded facts set forth in the complaint described in
great detail a pattern of alleged sexual predation committed by a female Correctional
Officer, Amber Zong, targeting the plaintiff. Thus, B.L. alleges that Zong, acting
under color of law, coerced the plaintiff to engage in involuntary sex acts while
incarcerated. (Id.) These allegations are described at great length in the complaint,
and it appears that Zong was criminally prosecuted and fired as a result of these acts.
Commonwealth v. Zong, CP-14-CR-0002168-2014.1
B.L.’s complaint provides an extensive and graphic factual narrative describing
a progressive pattern of sexual predation which he alleges he was subjected to by
defendant Zong, beginning in the Fall of 2013. (Id., ¶¶25-74.) According to B.L. this
conduct began with inappropriate comments, and then over time escalated to demands
that B.L. engage in sexually explicit activity, up to and including sexual intercourse.
(Id.) B.L. alleges that the conduct was coerced and involuntary on his part, and that
Zong compelled him to engage in this sexual activity by threatening to falsely report
sexual misconduct on his part. (Id.) B.L. also specifically avers that this sexual
conduct violated the tenets of his Roman Catholic faith, and insists that he raised
these faith-based objections repeatedly to Zong, who nonetheless used her position
as a correctional officer to cajole, threaten and coerce him to engage in these acts,
knowing them to be contrary to his religious beliefs. (Id.) B.L. alleges that he was
also required to engage in this sexually explicit conduct in a variety of venues inside
the prison, including the prison chapel. (Id.) Further, according to B.L., Zong
deterred him from exercising his right to report abuse by threatening to make false
Consequently the Commonwealth is not representing Zong in this case, and
she has been proceeding pro se in the litigation. The remaining 17 correctional
defendants are represented by counsel for the Pennsylvania Department of
Corrections.
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reports to prison officials regarding his sexual conduct as disciplinary matters. (Id.)
While these specific allegations form the gravamen of the claims against
defendant Zong, B.L. also named an array of additional correctional defendants, and
makes specific allegations of misconduct against these officials. Thus, B.L. alleges
that numerous correctional supervisors and co-workers were specifically aware of
Zong’s sexual misconduct towards B.L., but took no steps to curtail that conduct, or
intervene. (Id., ¶¶80-89.) Instead, B.L. alleges that prison officials allowed the
conduct to persist, and in some instances actually exchanged visual depictions of this
conduct through cell phones or social media, engaging in voyeurism instead of
responding to the conduct. (Id.) Indeed, B.L. specifically alleges that a number of
correctional defendants indulged in a lottery speculating on the frequency of this
activity, and gambling on its duration before it was detected. (Id.)
The defendants initially moved to dismiss this complaint, arguing in part that
the complaint should be dismissed due to B.L.’s failure to comply with Rule 10 of the
Federal Rules of Civil Procedure which generally provides that: “[t]he title of the
complaint must name all the parties. . . .” Fed. R. Civ. P. 10. We recommended that
the court deny the motion to dismiss on these grounds, but direct the plaintiff to
comply with the procedure mandated by Rule 10, and seek leave of court before
proceeding under a pseudonym. The district court adopted this recommendation, and
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the plaintiff subsequently moved to proceed under a pseudonym. (Doc. 53.) This
motion is now fully briefed by the parties, (Docs. 54, , 60 and 68.), and is, therefore,
ripe for resolution.
For the reasons set forth below, the motion to proceed under a pseudonym is
denied.
II.
Discussion
As a general matter Rule 10 of the Federal Rules of Civil Procedure provides
that: “[t]he title of the complaint must name all the parties . . . .” Fed. R. Civ. P. 10.
Rule 10 embodies a principle which is central to our system of justice, a presumption
in favor of transparency. As the United States Court of Appeals for the Third Circuit
has aptly observed:
“[O]ne of the essential qualities of a Court of Justice [is] that its
proceedings should be public.” Daubney v. Cooper, 109 Eng. Rep. 438,
441 (K.B. 1829); Nixon v. Warner Cmmc'ns, Inc., 435 U.S. 589,
598–99, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Rule 10(a) requires
parties to a lawsuit to identify themselves in their respective pleadings.
Fed.R.Civ.P. 10(a); Doe v. Frank, 951 F.2d 320, 322 (11th Cir.1992).
Courts have explained that Federal Rule of Civil Procedure 10(a)
illustrates “the principle that judicial proceedings, civil as well as
criminal, are to be conducted in public.” Doe v. Blue Cross & Blue
Shield United, 112 F.3d 869, 872 (7th Cir.1997). “Identifying the
parties to the proceeding is an important dimension of publicness. The
people have a right to know who is using their courts.” Blue Cross, 112
F.3d at 872; Fed.R.Civ.P. 10(a). And, defendants have a right to
confront their accusers. See S. Methodist Univ. Ass'n of Women Law
Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir.1979). A
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plaintiff's use of a pseudonym “runs afoul of the public's common law
right of access to judicial proceedings.” Does I Thru XXIII v. Advanced
Textile Corp., 214 F.3d 1058, 1067 (9th Cir.2000).
Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011).
Consistent with these guiding principles, decisions regarding whether to allow
a party to proceed under a pseudonym are consigned to the sound discretion of the
trial court and will not be disturbed absent an abuse of that discretion. Doe v.
Megless, 654 F.3d 404, 407 (3d Cir. 2011). The exercise of this discretion is guided,
however, by certain basic principles. At the outset,”[O]ne of the essential qualities
of a Court of Justice [is] that its proceedings should be public.” Doe v. Megless, 654
F.3d 404, 408 (3d Cir. 2011). “ A plaintiff's use of a pseudonym ‘runs afoul of the
public's common law right of access to judicial proceedings.’ ” Id. Nonetheless, “in
exceptional cases courts have allowed a party to proceed anonymously.” Id.
In exercising this discretion, we are cautioned to balance an array of competing
factors:
The factors in favor of anonymity include[]:
“(1) the extent to which the identity of the litigant has been kept
confidential; (2) the bases upon which disclosure is feared or sought to
be avoided, and the substantiality of these bases; (3) the magnitude of
the public interest in maintaining the confidentiality of the litigant's
identity; (4) whether, because of the purely legal nature of the issues
presented or otherwise, there is an atypically weak public interest in
knowing the litigant's identities; (5) the undesirability of an outcome
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adverse to the pseudonymous party and attributable to his refusal to
pursue the case at the price of being publicly identified; and (6) whether
the party seeking to sue pseudonymously has illegitimate ulterior motives.”
On the other side of the scale, factors disfavoring anonymity include[]:
“(1) the universal level of public interest in access to the identities of
litigants; (2) whether, because of the subject matter of this litigation, the
status of the litigant as a public figure, or otherwise, there is a
particularly strong interest in knowing the litigant's identities, beyond
the public's interest which is normally obtained; and (3) whether the
opposition to pseudonym by counsel, the public, or the press is
illegitimately motivated.”
Doe v. Megless, 654 F.3d 404, 409 (3d Cir. 2011).
In striking this balance “ ‘[e]xamples of areas where courts have allowed
pseudonyms include cases involving ‘abortion, birth control, transexuality, mental
illness, welfare rights of illegitimate children, AIDS, and homosexuality.’ Doe v.
Borough of Morrisville, 130 F.R.D. 612, 614 (E.D.Pa.1990).” Doe v. Megless, 654
F.3d 404, 408 (3d Cir. 2011)(emphasis added). The rationale behind these cases,
which have on occasion carved out a narrow exception to this general rule of
transparency and allowed some plaintiffs raising allegations of a sexual nature to
proceed under a pseudonym, has been that use of a pseudonym may be proper when
“prosecution of the suit compelled plaintiffs to disclose information ‘of the utmost
intimacy[.]’ ”
Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981).
Thus, a
determination regarding whether “ [a] plaintiff's use of a pseudonym ‘runs afoul of
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the public's common law right of access to judicial proceedings,’ ” Doe v. Megless,
654 F.3d 404, 409 (3d Cir. 2011), or constitutes one of those “exceptional cases
[where] courts have allowed a party to proceed anonymously,” id., is often informed
by the question of whether the plaintiff has treated the conduct at issue as a matter of
“the utmost intimacy.” Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981).
Despite the general presumption favoring transparency of proceedings, B.L.
seeks leave to proceed under a pseudonym, arguing that disclosure of his true identity
would harm him and expose him to ridicule and harassment in prison. Further, B.L.
argues that there are no countervailing societal interests at play in this case which
would favor disclosure of this information.
On the unique facts of this case, we disagree. We are, of course, sensitive to
the need for some measure of confidentiality on matters of a most personal and
intimate nature, and have in fact granted requests to proceed under a pseudonym
where a plaintiff has shown that certain medical information is of an extremely
intimate nature. See Jones v. OSS Orthopaedic Hosp., No. 1:16-CV-1258, 2016 WL
3683422, at *1 (M.D. Pa. July 12, 2016). However, in this case we find that B.L. has
not made the showing necessary to overcome the strong presumption in favor of
transparency and justify proceeding anonymously in this lawsuit.
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To be sure, the case involves allegations of a sexual nature, a field where courts
have in the past shown some solicitude to parties’ privacy. We also recognize that
for B.L. disclosure of his sexual contacts with correctional staff could potentially
expose him to some ridicule and harassment. These concerns, however, are largely
undermined in this case for at least two reasons. First, it seems undisputed that B.L.’s
identity was publicly disclosed in court filings in the course of the criminal
prosecution of defendant Zong. Commonwealth v. Zong, CP-14-CR-0002168-2014.
Thus, the prior disclosure of this information minimizes the need for absolute
anonymity.
More fundamentally, we are constrained to observe that the record before this
court, which includes documents reflecting statements made by, and attributed to
B.L., shows that B.L. did not treat these sexual encounters as a matter of utmost
intimacy, as he would be expected to do if he sought anonymity. Quite the contrary,
B.L. allegedly disclosed details of these sexual encounters to others, reported that he
is a “celebrity,” as a result of his sexual encounters in prison, and is alleged to have
related with apparent pride a profane nickname he received describing his sexual
prowess in prison. (Doc. 32.) Since B.L. himself seems to have engaged in crude
sexual braggadocio regarding this matter we cannot find that he has treated this
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incident as the type of matter of “utmost intimacy” which warrants proceeding under
a pseudonym.
We also disagree with B.L.’s contention that there are no countervailing public
interests which favor transparency. Quite the contrary, B.L.’s decision to bring these
claims in federal court presents issues of paramount public interest and importance
relating both to the conduct of public officials, and institutional safety in state
prisons. These important public interests mitigate in favor of full disclosure and
transparency. Furthermore, there is something inappropriately asymmetrical about
litigation that allows one party, acting anonymously, to name eighteen individuals as
defendants and then accuse those eighteen persons of grave misconduct while the
accuser’s identity remains shrouded in secrecy.
Taking all of these considerations into account we find that B.L. has not
overcome the strong presumption against allowing parties to use a pseudonym and
shown that this is an exceptional case where the court should allow a party to proceed
anonymously. Therefore, the motion to proceed anonymously (Doc. 53.) will be
denied.
An appropriate order follows.
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III.
Order
Accordingly, for the foregoing reasons, the plaintiff’s motion to proceed under
a pseudonym (Doc. 53.) , is DENIED.
So ordered this 17th day of March, 2017.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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