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Doe v. Hood

United States District Court, S.D. Mississippi, Northern Division

June 2, 2017



          Carlton W. Reeves UNITED STATES DISTRICT JUDGE.

         In what 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.

         I. Factual and Procedural History

         Pseudonymous 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.

         In 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.

         II. Legal Standard

         Litigating 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)).

         These 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).

         A 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).

         III. Discussion

         A. Proceeding Under Pseudonyms

         In this case, an application of the legal standard shows that plaintiffs should be allowed to proceed under pseudonyms.

         First, 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)[1]; 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”).

         Second, 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 ...

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