United States District Court, S.D. Mississippi, Northern Division
ARTHUR DOE; BRENDA DOE; CAROL DOE; DIANA DOE; and ELIZABETH DOE PLAINTIFFS
JIM HOOD; MARSHALL FISHER; CHARLIE HILL; COLONEL CHRIS GILLARD; and LT. COLONEL LARRY WAGGONER DEFENDANTS
Carlton W. Reeves UNITED STATES DISTRICT JUDGE.
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.
Factual and Procedural History
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.
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.
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)).
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 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).
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).
Proceeding Under Pseudonyms
case, an application of the legal standard shows that
plaintiffs should be allowed to proceed under pseudonyms.
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); and (2) whether
Mississippi's classification of out-of- 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”).
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 ...