Roe v. Borup

• Decision Date: 16 October 1980
• Docket Number: No. 80-C-350.,80-C-350.
• Parties: John ROE, Jane Roe, Mary Roe (minor), Plaintiffs, v. John BORUP et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

500 F. Supp. 127

John ROE, Jane Roe, Mary Roe (minor), Plaintiffs, v. John BORUP et al., Defendants.

No. 80-C-350.

United States District Court, E. D. Wisconsin.

October 16, 1980.

Roger Buffett, Buffett & Dew, Madison, Wis., for plaintiffs.

Donald P. Johns, Asst. Atty. Gen., Madison, Wis., for Wis. Dept. of Health & Social Services.

James C. Alexander, Madison, Wis., for John Borup, Joyce Gonis, Dodge County, Dodge County Department of Social Services, Steven Schmitz; Ralph E. Sharp, Jr., Corp. Counsel, Juneau, Wis., of counsel.

Prosser, Wiedebach & Quale, Milwaukee, Wis., for defendant, Maryann S. Schacht.

DECISION and ORDER

MYRON L. GORDON, District Judge.

This action is brought under 42 U.S.C. § 1983. The plaintiffs allege that the defendants deprived the plaintiffs of rights and privileges secured by the United States and Wisconsin Constitutions by removing the plaintiff Mary Roe, a minor, from the custody of her parents, John and Jane Roe, for seven weeks. The complaint in this action was filed on April 16, 1980, and an amended complaint was filed on June 25, 1980.

The plaintiffs characterize the defendants' behavior during the investigation that resulted in removal of Mary Roe as "grossly negligent," assert that the plaintiff parents were not properly informed of the nature of the proceedings or their rights regarding the proceedings, and assert that certain of the defendants improperly prolonged the separation of the daughter from her parents. The plaintiffs seek compensatory damages of $275,000 and equitable relief against the defendant county and state agencies.

Presently before the court are three motions to dismiss brought separately by the defendants. The plaintiffs have also brought a motion for permission to use fictitious names. The plaintiffs' motion will be granted, and the motions of the defendants will be denied, except that the motion of the Department of Health and Social Services will be granted in part.

I

The defendants John Borup, Joyce Gonis, Dodge County Department of Social Services, Dodge County, Steven Schmitz, and Maryann Schacht have moved to dismiss the complaint and the amended complaint on the grounds that the court lacks subject matter jurisdiction over these defendants, that the court lacks personal jurisdiction over these defendants, and that there is insufficiency of process. These defendants base this motion on the fact that the complaint in this action was filed with fictitious names instead of the true names of the plaintiffs and did not contain the true names of the plaintiffs anywhere in the body of the pleadings. The defendants rely on Roe v. State of New York, 49 F.R.D. 279 (S.D.N.Y.1970), which held that a complaint that does not identify by true name at least one plaintiff is not properly filed and cannot commence an action. In the case at bar, the defendants argue that the absence of any true names from this complaint means that it is not properly filed and therefore that this court has no subject matter or personal jurisdiction. The defendants also contend that the absence of any true names on the summonses served on them violates Rule 4(b), Federal Rules of Civil Procedure, and therefore the summonses are insufficient.

In response to this argument, the plaintiffs detail the steps taken by their counsel in an effort to file this action properly. Shortly after this action was started, Judge Robert W. Warren, in an ex parte order, granted the plaintiff's request for permission to proceed under fictitious names but limited its duration to ten days. However, the plaintiffs' counsel determined that an amended complaint was necessary but did not file it until five weeks after the submission of the original complaint. At that time, the plaintiff's counsel served upon the defendants both the amended complaint and the motion for permission to use fictitious names which is now before the court.

I am convinced that any error committed by the plaintiffs here was both procedural and minor, and it should not spark so drastic a remedy as dismissal. In Roe v. State of New York, supra, the court noted: "A plaintiff who desires to use a name other than his own should, before the case is presented in court, acquaint the court of his desires, ... and secure the court's consent." Roe, supra at p. 282, citing Buxton v. Ullman, 147 Conn. 48, 156 A.2d 508, 514 (1959). The efforts of plaintiffs' counsel certainly have been sufficient to satisfy this requirement.

The defendants do not contend that the action is moot or that they have been prejudiced in any way by the absence of the true names of the plaintiffs in the complaint. I reject the highly mechanical interpretation of the Federal Rules of Civil Procedure offered by the defendants. Their argument would have the court elevate form over substance, without any reason for doing so. The defendants' motion to dismiss will be denied.

II

The plaintiffs have brought a motion for permission to use fictitious names. This motion is necessary because, as noted above, Judge Warren's grant of permission expired ten days from its issuance. The plaintiffs argue that this action involves allegations of a serious nature which if revealed would subject the plaintiffs "to personal and social harassment and embarrassment." Specifically, the underlying action which temporarily removed the minor plaintiff from her parents' custody was based on allegations that the parents were sexually abusing the child. Further, Wisconsin law requires that records of that action be kept confidential because a juvenile was involved, Wis.Stat. §§ 48.26 (1975) and 48.78 (1955) (current version at Wis.Stat. §§ 48.396 and 48.78).

The same group of defendants whose motion was discussed in part I above oppose the plaintiffs' application. Much of their objection is based on the same arguments discussed in part I and will not be further addressed here. They also assert that no case since Roe v. State of New York, supra, has permitted the use of fictitious names in an action seeking monetary damages. Thus they argue that the plaintiffs here should not be permitted to proceed under fictitious names since they have sought monetary damages.

The defendants have presented no explanation why the pleading of a damages claim should preclude the use of fictitious names, and none is apparent to the court. The defendants' assertion that no case after Roe v. State of New York permitted the use of fictitious names in a suit seeking monetary damages is without merit; the plaintiffs have called attention to Doe v. Chaffee, 355 F.Supp. 112 (N.D.Cal.1973); and Doe v. Lavine, 347 F.Supp. 357 (S.D.N.Y.1972). In both cases, the court permitted the use of fictitious names when the plaintiffs were seeking monetary damages.

The decision whether to permit the use of fictitious names is one that is left to the discretion of the trial court, Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir. 1979). There the court noted that "identifying a plaintiff only by a pseudonym is an unusual procedure, to be allowed only where there is an important privacy interest to be recognized." Lindsey, supra, at p. 1125; see Doe v. Deschamps, 64 F.R.D. 652 (D.Mont.1974).

I am satisfied that "an important privacy interest" is present here. This case involves allegedly false charges of sexual abuse of a small child. It is beyond argument that this is a highly sensitive issue. The plaintiffs also allege that the actions of the defendants have already caused significant psychological harm to the parents and the child. They request the court to permit the use of fictitious names in order to shield the plaintiffs from further harm. This request is reasonable, and I will grant the plaintiffs' motion for permission to use fictitious names.

III

The defendant Maryann Schacht has moved to dismiss the plaintiffs' claim against her on the grounds that the complaint fails to state a claim against her and is res judicata. Ms. Schacht was appointed the guardian ad litem for the plaintiff Mary Roe as part of the juvenile proceeding in issue in this case. She is first mentioned in the complaint in paragraph 42. This paragraph alleges that this defendant participated in the actions alleged in paragraphs 23, 24, 26, 28, and 30 of the complaint. Examination of these paragraphs reveals that they allege various actions by the defendant Joyce Gonis, but they do not mention Ms. Schacht. Paragraph 43 of the complaint also alleges that Ms. Schacht exceeded the scope of her duties as guardian ad litem.

Ms. Schacht argues that the paragraphs incorporated by reference do not satisfy the requirements of Rule 10(b), Federal Rules of Civil Procedure, that the acts of the defendant alleged to bring liability be stated separately, since these paragraphs allege only actions of Ms. Gonis. Ms. Schacht also contends that a claim under section 1983 is not stated unless the plaintiffs plead a specific constitutional right that was transgressed by the defendant and cites Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978), as support.

Ms. Schacht's interpretation of Landrum is accurate, but I am persuaded that a fair reading of the complaint reveals that the plaintiffs have pleaded a violation of a specific constitutional right. The gravamen of the complaint is that the defendants improperly deprived the plaintiff parents of the custody of their child, who is also a plaintiff. The complaint alleges numerous irregularities in the actions of the defendants.

Deprivation of child custody without a court hearing has been held to state a cause of action under section 1983 for a procedural due process violation. Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977); see S. Nahmod, Civil Rights and Civil Liberties Litigation, § 308; cf. Drollinger v. Milligan, 552 F.2d 1220 (7th Cir. 1977) (holding that a father had standing under section 1983 to challenge the terms of his daughter's probation when said terms prohibited association...