M.M. v. Zavaras, 96-1507

• Decision Date: 17 March 1998
• Docket Number: No. 96-1507,96-1507
• Citation: 139 F.3d 798
• Parties: , 98 CJ C.A.R. 1334 M.M., individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Aristedes W. ZAVARAS, Executive Director of the Colorado Department of Corrections, in his official capacity, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 798

139 F.3d 798

40 Fed.R.Serv.3d 498, 98 CJ C.A.R. 1334

M.M., individually and on behalf of all others similarly

situated, Plaintiff-Appellant, v. Aristedes W. ZAVARAS, Executive Director of the Colorado

Department of Corrections, in his official

capacity, Defendant-Appellee.

No. 96-1507.

United States Court of Appeals, Tenth Circuit.

March 17, 1998.

Janet Benshoof, Center for Reproductive Law and Policy, New York City (Mark Silverstein, Jane Anne Bell, American Civil Liberties Union Foundation of Colorado, Denver, CO, and Janet Crepps, Kathryn Kolbert, Center for Reproductive Law & Policy, New York City, with her on the Brief), Plaintiff-Appellant.

Michael S. Williams, Denver, CO (Gale A. Norton, Attorney General and Paul Farley, Deputy Attorney General, Colorado Department of Law, Denver, CO, with him on the Brief), for Defendant-Appellee.

Before BALDOCK, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and BROWN, Senior District Judge. ^*

BROWN, Senior District Judge.

Plaintiff, an indigent inmate confined in the Colorado Women's Correctional Facility in Canon City, Colorado, filed this § 1983 civil rights class action alleging that the defendant, Executive Director of the Department of Colorado Corrections, had denied her funds for transportation and medical expenses for abortion services in violation of the 8th and 14th Amendments to the Constitution. In filing this complaint, plaintiff used the pseudonym "M.M." and filed a Motion For Leave to Proceed in Pseudonym.

Two issues are presented for decision by this court. In the first instance, the court is required to rule upon defendant-appellee's Motion to Dismiss this appeal for absence of jurisdiction. ¹ If there is jurisdiction, the second question for us is whether the district court abused its discretion by denying plaintiff leave to proceed under a pseudonym and by dismissing the case below for failure to comply with the Federal Rules of Civil Procedure, as well as for plaintiff's failure to comply with valid orders issued by the district court.

The procedural history leading to the appeal in this case may be summarized in the following manner:

Plaintiff filed her complaint on August 28, 1996, with a motion for leave to proceed in pseudonym. It appears that counsel for plaintiff did not confer with counsel for defendant prior to filing the motion for leave to proceed in pseudonym.

On that same day, plaintiff was transported to Boulder, Colorado, where she underwent an abortion procedure.

On August 30, 1996, the district court denied plaintiff's motion for leave to proceed in pseudonym:

The Motion for Leave to Proceed in Pseudonym filed August 28, 1996, is DENIED. The case is subject to dismissal pursuant to Fed.R.Civ.P. 17, unless ratified by September 19, 1996. ²

On September 12, 1996, plaintiff filed a Motion to Reconsider the Order of August 30th. This motion was accompanied by a memorandum in support of that motion. ³ On September 17, the district court denied this motion, noting that it, with its accompanying memorandum, had been filed without leave of court. In addition, the court noted that plaintiff had failed to comply with the Local Rule of Practice 7.1A which provided that the court will not consider any motion, other than one filed under Rule 12 or 56, unless counsel for the moving party, before filing the motion, has conferred or made a good faith effort to confer with opposing counsel to resolve the disputed matter. The rules further require the movant to file a certificate describing compliance with this rule.

The district court further found the motion to reconsider "aberrational" in that it ignored established precedent in the circuit, and did not cite any authority to justify its filing. In addition, the district court found that the memo in support of the motion to reconsider "is itself an archetype of confusion," citing cases that have nothing to do with the prosecution of a case by an unidentified plaintiff, and completely ignoring "both controlling Tenth Circuit decisions and published decisions of this court."

With respect to the issue of anonymity, the court discussed the conflicting interests of plaintiff and the public in this manner:

The use of pseudonyms concealing plaintiffs' real names has no explicit sanction in the federal rules. Indeed it seems contrary to Fed.R.Civ.P. 10(a) which requires the names of all parties to appear in the complaint. ⁴ [Citing Coe v. U.S. Dist. Court, 676 F.2d 411, (10th Cir.1982)] Moreover, there is no express congressional grant of a right to proceed anonymously. There are a number of cases which recognize that identifying a party only by a pseudonym is an unusual procedure. None of them, however, points to any precise authority for the practice....

Even if one assumes there is a legitimate basis for permitting a party in litigation to maintain anonymity, the few cases which discuss the propriety of the practice or recognize it implicitly require a balancing of competing interests. We begin with the fundamental presupposition that it is the responsibility of judges to avoid secrecy, in camera hearings and the concealment of the judicial process from public view ... Courts are public institutions which exist for the public to serve the public interest. Even a superficial recognition of our judicial history compels one to recognize that secret court proceedings are anathema to a free society.

The issue of pseudonymity requires weighing the scales between the public's interest and the rights to privacy advanced by the movant. Of course privacy interests are recognized in particular circumstances to be in the public interest. It is alleged in the complaint that the unnamed plaintiff is an indigent pregnant inmate of the Colorado Department of Corrections who wished to obtain an abortion and that the Department of Corrections refused to pay for the necessary medical services. Obviously, the case as posited presents issues of public policy: the expenditure of public funds on the one hand and the desire of an inmate to maintain anonymity in circumstances in which her name, condition and exact location are known to the defendant and must be known by the personnel in the department he heads as a matter of statutory mandate and public safety on the other. I find that whatever interest in privacy is claimed on behalf of the plaintiff, the numerous countervailing public interests clearly and decisively outweigh it. [App. of Plaintiff-Appellant, pp. 28-29].

In denying the motion for reconsideration, the district court extended the time for ratification of the initial complaint to September 25, 1996, with the proviso that if the complaint was not ratified in accordance with Federal Rule 17 by that date, it would be dismissed "without further notice."

On September 25, 1996, plaintiff filed an amended complaint revealing her true name, with a motion to hold this amended complaint "Under Seal" pending appeal. On that same date, plaintiff filed a notice of appeal with the Tenth Circuit, appealing the court's orders of August 30th and September 17th, discussed above. On September 26, 1996, the district court denied the motion to hold the amended complaint "under seal." In this order, the court gave plaintiff until 5:00 p.m. September 26, 1996, to either withdraw the sealed complaint, or have it filed by the district court as a public record.

On September 26, the Tenth Circuit dismissed plaintiff's appeal of the August 30th and September 17th orders for lack of jurisdiction. On September 27, 1996, plaintiff sought relief from Mr. Justice Breyer of the Supreme Court as Supervisory Justice of this Circuit. On that same day, Justice Breyer denied the request.

On September 27, 1996, the district court entered a final order in this case, striking the unopened First Amended Complaint from its records, finding that the deadline for ratification had expired without the required Rule 17 ratification. In this respect, the district court ruled:

... that the unopened envelope is stricken from the records of the court and returned to counsel. The deadline for filing a ratification by a named party of the actions taken in this case has expired without such ratification.

IT IS FURTHER ORDERED that this civil action is dismissed for failure to comply with Rule 10(a) of the Federal Rules of Civil Procedure by not including the names of all the parties in the title of the action in the complaint and for failure to comply with the orders of this court dated August 30, 1996 and September 17, 1996, requiring a real party in interest to be named who ratifies the commencement of the action or joins or is substituted for the real party in interest, all as required by Rule 17(a) Federal Rules of Civil Procedure.

In the first instance, this court determines that the motion to dismiss this appeal will be denied. The defendant points out that subject matter jurisdiction is never presumed, and the court must sua sponte raise the issue to assure proper appellate jurisdiction. Defendant contends that, absent permission by the district court to proceed anonymously, the federal courts lack jurisdiction over unnamed parties as a case has not been commenced with respect to them. National Commodity & Barter Ass'n. et al v. Gibbs, 886 F.2d 1240 (10th Cir.1989), and see Doe v. United States Dept. of Justice, 93 F.R.D. 483, 484 (D.Colo.1982) holding that a "civil action has not been commenced and will not be commenced unless and until it is filed in full compliance with Rule 10(a) of the Federal Rules...." In the National Commodity case, some plaintiffs were described merely as "members & subscribers" of the plaintiff association, and these unnamed parties were dismissed from the case, with these comments:

In certain limited circumstances, ... courts have permitted a plaintiff to proceed using a fictitious name where there are significant privacy interests or threats of physical harm implicated by the disclosure of...