Coe v. U.S. Dist. Court for Dist. of Colorado, 82-1309

• Decision Date: 21 April 1982
• Docket Number: No. 82-1309,82-1309
• Citation: 676 F.2d 411
• Parties: Dr. Charles COE, Petitioner, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF COLORADO, Respondent, Michael Vitek, Henry Fieger, M.D., Jack Klapper, M.D., Stephen Kozloff, M.D., Robert Lederer, M.D., Nelson Mohler, D.O., Fredrick Paquette, M.D., Christine Petersen, M.D., Roy Piper, D.O., Bruce Wilson, M.D., and John Carroll, Attorney, in their official capacities as members of the Colorado State Board of Medical Examiners; The Colorado State Board of Medical Examiners, an agency of the State of Colorado; J. D. MacFarlane, in his official capacity as the Attorney General for the State of Colorado, R. Michael Mullens, in his official capacity as an Assistant Attorney General for the State of Colorado, and Ann Sayvetz, in her official capacity as an Assistant Attorney General for the State of Colorado, Real Parties in Interest.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 411

676 F.2d 411

Dr. Charles COE, Petitioner, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF COLORADO, Respondent Michael Vitek, Henry Fieger, M.D., Jack Klapper, M.D Stephen Kozloff, M.D., Robert Lederer, M.D., Nelson Mohler D.O., Fredrick Paquette, M.D., Christine Petersen, M.D., Roy Piper, D.O., Bruce Wilson, M.D., and John Carroll, Attorney in their official capacities as members of the Colorado State Board of Medical Examiners; The Colorado State Board of Medical Examiners, an agency of the State of Colorado; J. D. MacFarlane, in his official capacity as the Attorney General for the State of Colorado, R. Michael Mullens, in his official capacity as an Assistant Attorney General for the State of Colorado, and Ann Sayvetz, in her official capacity as an Assistant Attorney General for the State of Colorado, Real Parties in Interest.

No. 82-1309.

United States Court of Appeals, Tenth Circuit.

April 21, 1982.

Rodney R. Patula of Pryor, Carney & Johnson, Englewood, Colo., for petitioner.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., and William A. Richardson, Asst. Atty. Gen., State of Colo., Denver, Colo., for real parties in interest.

Before BARRETT, McKAY and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Dr. Charles Coe appears here as petitioner under a fictitious name, aggrieved with threatened professional disciplinary proceedings based upon complaints lodged against him with the Colorado State Board of Medical Examiners (Board). Dr. Coe filed a complaint for injunctive and declaratory relief with the District Court pursuant to 42 U.S.C.A. § 1983 to restrain the Board and the Colorado Attorney General from proceeding with a public hearing upon a formal disciplinary complaint challenging Coe's right to continue to practice medicine in Colorado. The complaint against Dr. Coe involves allegations of professional misconduct, specifically charges of sexual or immoral improprieties.

The District Court dismissed Dr. Coe's complaint and motion to file an amended complaint on the ground that Dr. Coe may not proceed in this action under a fictitious name. Furthermore, had Dr. Coe elected to file an amended complaint pursuant to his true, proper name, the District Court indicated that it may not entertain his § 1983 action predicated on his alleged deprivation of due process rights arising under the Fourteenth Amendment to the United States Constitution, i.e., irreparable harm to himself, his reputation and his property interests. The District Court, per footnote, in its March 4, 1982, order stated:

Until such time as an amended complaint (with true, proper name of Coe set forth as party plaintiff) is filed the jurisdictional issue is not ripe for decision. It should be noted, however, that federal courts are hesitant to become involved in operations of state boards and agencies. It would seem that if Dr. Coe wishes to challenge the procedures of a state board the proper place to begin would be in the state court.

Following the District Court's order of dismissal of March 4, 1982, refusing to permit leave to prosecute this § 1983 action under a fictitious name and the March 9, 1982, order denying plaintiff's motion to file amended complaint (wherein true, proper name would be used) with leave to file amended complaint and other pleadings under seal, Dr. Coe filed a petition for writ of mandamus or prohibition here. He alleges that the District Court's orders constitute a clear abuse of discretion which can only be remedied by this court.

Standard of Our Review

In United States v. Winner, 641 F.2d 825 (10th Cir. 1981), we stated:

"Mandamus is an extraordinary writ, and the requirements for its issuance are strict." State Farm Mut. Auto. Ins. v. Scholes, 601 F.2d 1151, 1154 (10th Cir. 1979). While "a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances 'would undermine the settled limitations upon the power of an appellate court to review interlocutory orders.' " Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam), quoting, Will v. United States, 389 U.S. 90, 98 n. 6, 88 S.Ct. 269, 275 n. 6, 19 L.Ed.2d 305 (1967).

The "traditional use of the writ in aid of appellate jurisdiction ... has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). We have traditionally exercised extreme caution in granting writs of mandamus-the petitioning party bearing "the burden of showing that its right to issuance of the writ is 'clear and undisputable.' " Bankers Life and Casualty Company v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953), quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286 (287), 43 L.Ed. 559 (1899). As the Court recently emphasized in Allied Chemical Corp., supra, "(o)nly exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy." See Will v. Calvert Fire Insurance Company, 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978).

641 F.2d at pp. 830, 831.

Background

The issue presented here is whether the District Court abused its discretion in refusing petitioner, Dr. Coe, leave to prosecute his claims of constitutional deprivations without first having to disclose his true identity. Dr. Coe avers that disclosure of his true identity would cause irreparable and immediate destruction of his property and liberty interests which he seeks to protect. Stated another way, Dr. Coe contends that the District Court has effectively foreclosed his right to a fair or meaningful opportunity to present his federal constitutional claims in federal court.

The District Court, in the March 4, 1982, order, denying Dr. Coe's mandatory injunction against the Board and the Colorado Attorney General found/concluded, in part, as follows:

... Dr. Coe has been the subject of an investigation for alleged violations of the Colorado Medical Practice Act, C.R.S. 1973 §§ 12-36-101, et seq. The Attorney General has prepared a formal complaint to submit to the Board which will conduct a hearing on the matter. Under the Board's procedures, when the complaint is filed, the allegations will be made public.

Plaintiff (Dr. Coe) asserts that the Board has agreed to withhold publicizing the complaint on the condition that he stop practicing medicine until after the Board has heard and decided the case, a process estimated to require ninety days. Plaintiff contends that if he complies with that condition, many long-time patients will be denied his care and his practice will be irreparably damaged. He argues that imposing such a condition as the price of maintaining confidentiality of these proceedings amounts to an arbitrary, capricious and unreasonable interference with his right freely to pursue his profession, a "property interest" he says is protected against such infringement by the due process clause of the Fourteenth Amendment.

Plaintiff asks that the Board be restrained from releasing the complaint to the public and that the state hearing be conducted confidentially. Defendants have moved to dismiss this action, claiming that the plaintiff has presented no federal question and, therefore, this Court lacks jurisdiction.

Before proceeding to the merits, I must decide the plaintiff's preliminary motion to file this action under the fictitious name, Dr. Charles Coe. Rule 10(a) of the Federal Rules of Civil Procedure lays down the general rule that a complaint "shall include the names of all the parties ..." Permission to proceed under a fictitious name should be granted only in exceptional circumstances where the interest of justice requires anonymity. Doe v. Deschamps, 64 F.R.D. 652 (D.Mont.1974). Judge Kane of this Court recently denied a plaintiff's request for confidentiality, emphasizing the importance of maintaining public access to proceedings. Doe v. United States, 93 F.R.D. 483, No. 82-K-64 (D.Colo. Feb. 2, 1981); See also, Lorenz v. NRC, 516 F.Supp. 1151 (D.Colo.1981).

Members of the public, including the plaintiff's present and potential patients, have a significant interest in free access to the facts and this Court proceeding. While I understand and am sympathetic to the plaintiff's desire for anonymity in view of the allegations against him, I find that this interest in privacy is outweighed by the public interest. Therefore, the plaintiff will not be permitted to proceed with this action under a fictitious name. If he wishes to proceed with this case, he shall amend his complaint within five days after the date of this Order to state the names of all parties in interest ....

Thereafter, plaintiff filed a motion for an order (1) allowing him to file an amended complaint identifying him by proper name, but under seal of the court so as to preclude disclosure of his true identity to anyone not a defendant or counsel for a defendant until further order of the court and (2) allowing plaintiff, and compelling all other parties, to file all subsequent pleadings in the case under seal of the court. This motion was denied by minute order of the District Court.

Right to Prosecute Action Under Fictitious Name

A license to practice medicine is, of course, a valuable property right entitled to due process and other constitutional protections. 54 A.L.R. 393; 44 A.L.R.3d 1. The state has the right and power to impose conditions on the right to practice medicine, and a license may be revoked for good cause. 93 A.L.R.2d 1398. Colorado State Bd. of Medical Exmrs. v. Jorgensen, 198 Colo. 275, 599 P.2d 869 (1979); Glenn v. Colorado State Bd. of Medical Exmrs., 131 Colo. 586, 284 P.2d 230 (1955).

In Sapero v. State Bd. of Medical Exmrs., 90...