## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 17 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

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

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 96-K-2010)

Janet Benshoof, Center for Reproductive Law and Pol icy, New York, N.Y. (Mark Silverstein, Jane Anne Bell, American Civil Liberti es Union Foundation of Colorado, Denver, Colorado, and Janet Crepps, Kathryn Kolbert, Center for Reproductive Law & Policy, New York, N.Y., with heron the Brief), for Plaintiff-Appellant. Michael S. Williams, Denver, Colorado (Gale A. Nort on, Attorney General and Paul Farley, Deputy Attorney General, Colorado Depa rtment of Law, Denver, Colorado, with him on the Brief), for Defendant-App ellee.* Wesley E. Brown, Senior District Judge, District of Kansas, sitting by designation.

1 An order was entered in this appeal on May 6, 1997 to this effect:

The court reserves judgment on the motion to dismiss. The matter will be referred to the panel assigned to hear this appeal on the merits. -2- Before BALDOCK , Circuit Judge, HOLLOWAY , Senior Circuit Judge, and BROWN , Senior District Judge. *

BROWN , Senior District Judge.

Plaintiff, an indigent inmate confined in the Color ado Women's Correctional Facility in Canon City, Colorado, file d this § 1983 civil rights class action alleging that the defendant, Executive Direc tor of the Department of Colorado Corrections, had denied her funds for tran sportation 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-appell ee'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 dis cretion by denying plaintiff leave to proceed under a pseudonym and by dismissing the case below for failure to2Rule 17(a), Fed. R. Civ. P, provides in pertinent part that: Every action shall be prosecuted in the name of the real party in interest . . . . No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of the real party in interest; and such ratification, joinder, or substitution shall have the same effect (continued...) -3- comply with the Federal Rules of Civil Procedure, a s well as for plaintiff's failure to comply with valid orders issued by the district court. The procedural history leading to the appeal in thi s 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 f or plaintiff did not confer with counsel for defendant prior to filing the motion fo r leave to proceed in pseudonym. On that same day, plaintiff was transported to Bo ulder, Colorado, where she underwent an abortion procedure. On August 30, 1996, the district court denied pla intiff'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. 22 (...continued) as if the action had been commenced in the name of the real party in interest.

3 Local Rule 7.1 G provides that any motion, other than a Rule 56 motion, shall briefly cite in its text authority to support it -- no separate brief is required or allowed to be filed, without leave of court. -4- On September 12, 1996, plaintiff filed a Motion t o Reconsider the Order of August 30th. This motion was accompanied by a m emorandum in support of that motion. 3 On September 17, the district court denied this m otion, noting that it, with its accompanying memorandum, had been file d 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 no t 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 fai th effort to confer with opposing counsel to resolve the disputed matter. T he rules further require the movant to file a certificate describing compliance with this rule. The district court further found the motion to reco nsider "aberrational" in that it ignored established precedent in the circui t, and did not cite any authority to justify its filing. In addition, the district c ourt 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 b y an unidentified plaintiff, and completely ignoring "both controlling Tenth Circuitdecisions and published4 Rule 10(a) F.R.Civ. Proc., provides in pertinent part that: Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. -5- decisions of this court." With respect to the issue of anonymity, the court d iscussed the conflicting interests of plaintiff and the public in this manne r:

The use of pseudonyms concealing plaintiffs' rea l names has no explicit sanction in the federal rules

. Indeed it seems contrary to Fed. R. Civ. P. 10(a) w hich 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 expres s congressional grant of a right to proceed anonymous ly. There are a number of cases which recognize that identifying a party only by a pseudonym is an unusu al 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 anonym ity, the few cases which discuss the propriety of the pr actice or recognize it implicitly require a balancing of competing interests. We begin with the fundamental presupposition that it is the responsibility of jud ges to avoid secrecy, in camera hearings and the concealme nt of the judicial process from public view . . . Courts are public institutions which exist for the public to s erve the public interest. Even a superficial recognition of our judicial history compels one to recognize that secr et court proceedings are anathema to a free society.-6- 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 circumstance s to be in the public interest. It is alleged in the compl aint that the unnamed plaintiff is an indigent pregnant inmat e of the Colorado Department of Corrections who wished t o obtain an abortion and that the Department of Corrections refused to pay for the necessary medica l 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 defen dant and must be known by the personnel in the departmen t he heads as a matter of statutory mandate and publi c safety on the other. I find that whatever interestin privacy is claimed on behalf of the plaintiff, the numerous countervailing public interests clearly an d decisively outweigh it. [App. of Plaintiff-Appellan t, pp. 28-29]. In denying the motion for reconsideration, the dist rict 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 F ederal 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 c omplaint "Under Seal" pending appeal. On that same date, plaintiff filed a notice of appeal with the Tenth Circuit, appealing the court's orders of Augu st 30th and September 17th, discussed above. On September 26, 1996, the distri ct court denied the motion to-7-

hold the amended complaint "under seal." In this o rder, the court gave plaintiff until 5:00 p.m. September 26, 1996, to either withd raw the sealed complaint, or have it filed by the district court as a public rec ord. On September 26, the Tenth Circuit dismissed plai ntiff's appeal of the August 30th and September 17th orders for lack of j urisdiction. 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 Complaintfrom its records, finding that the deadline for ratification had expired with out the required Rule 17 ratification. In this respect, the district court ruled:

. . . that the unopened envelope is stricken from t he records of the court and returned to counsel. The deadline for filing a ratifica-tion 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 t he 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 name d who ratifies the commencement of the action or joins oris substituted for the real party in interest, all as required by Rule 17(a) Federal Rules of Civil Procedure.-8-

In the first instance, this court determines that t he motion to dismiss this appeal will be denied. The defendant points out th at subject matter jurisdiction is never presumed, and the court must sua sponte raise the issue to assure proper appellate jurisdiction. Defendant contends that, a bsent permission by the district court to proceed anonymously, the federal courts la ck 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 wit h Rule 10(a) of the Federal Rules . . . ." In the National Commodity case, some plaintiffs were described merely as "members & subscribers" of the plaintiff associatio n, and these unnamed parties were dismissed from the case, with these comments:

In certain limited circumstances, ... courts hav e permitted a plaintiff to proceed using a fictitious name where there are significant privacy interests or th reats of physical harm implicated by the disclosure of the plaintiff's name. . . This procedure has not been permitted when only the plaintiff's economic or professional concerns are involved . . . or when th ere is the threat of criminal or civil prosecution . . . In this case, the unnamed plaintiffs have made n o request to the district court for permission to pro ceed anonymously, nor have they otherwise disclosed thei r identities to the court or to the defendants. Abse nt permission by the district court to proceed anonymo usly,-9- and under such other conditions as the court may impose (such as requiring disclosure of their true identity under seal), the federal courts lack jurisdiction over th e unnamed parties, as a case has not been commenced w ith respect to them. (Citations omitted)(886 F. 2d at 1 245). In Mobley v. McCormick , 40 F. 3d 337 (10th Cir. 1994) this court was presented with a determination of whether an order of dismissal was appealable. We there stated the test in this manner:

Precedent establishes the rule that in determinin g whether an order of dismissal is appealable, we mus t examine whether the district court dismissed the complaint or the action . . . . A dismissal of the complaint is ordinarily a non-final, nonappealable order (since amendment would generally be available) . .

. while a dismissal of the entire action is ordinaril y final. . . . the focus must necessarily be on "the district court's intent in issuing its order." (Petty v. Manpower, Inc., 591 F. 2d 615, at 617). In that case the district court dismissed a pro se civil rights complaint wit hout prejudice as a sanction under Rule 41(b). We concl uded the district court intended to dismiss the action, rather than simply the complaint, and therefore, found the order appealable. . . [40 F. 3d at 339](Emphasis supplied). In the case before us, plaintiff has appealed from the order denying her leave to proceed under an assumed name, the order d enying her leave to file an amended complaint under seal, and the order dismiss ing her entire action as a sanction for failure to comply with applicable fede ral rules, and the orders of the court. While the district court did not specify wh ether the dismissal was with or without prejudice, Rule 41(b) Fed. R. Civ. P. provi des that "Unless the court in its-10-

order for dismissal otherwise specifies . . . any dismissal not provided for in this rule . . . operates as an adjudication on the merits ." A dismissal which is not provided for in Rule 41 includes a dismissal by the district court on its own motion for failure to comply with a rule or order of the court. See Canada v. Matthews , 449 F. 2d 253, 254 (5th Cir. 1971). Under these circumstances, it is clear that plaintiff's entire action has been dismi ssed, and we therefore find that the motion to dismiss the appeal should be denied. There being jurisdiction in this appeal, the only q uestion on appeal is whether or not the district court abused its discre tion in denying leave to file under a pseudonym and in dismissing the case as a s anction for violation of rules and failure to follow the orders of the court. In either case, these orders depended upon the exercise of discretion by the trial court and our review is limited to the question of abuse of that discretion. In Lindsey v. Dayton-Hudson Corp. , 592 F. 2d 1118 (10th Cir. 1979), cert. den. 444 U.S. 856, 62 L. Ed. 2d 75, plaintiff sued for false imprisonment, malicious prosecution, assault and battery, slanderand civil rights violations. As a side issue in the case, the court considered whet her or not plaintiff had a right to proceed under the fictitious John Doe name to prese rve his anonymity. It was pointed out that the decision involved a weighing o f a privacy issue against the public interest:-11-

(592 F. 2d at 1125)

This use of pseudonyms concealing plaintiffs' re al names has no explicit sanction in the federal rules

. Indeed it seems contrary to Fed.R.Civ.P. 10(a) whic h requires the names of all parties to appear in the complaint. Such use obviously may cause problems t o defendants engaging in discovery and establishing their defenses, and in fixing res judicata effects of jud gments. Yet the Supreme Court has given the practice implic it recognition in the abortion cases. . . with minimal discussion. Most of the cases permitting the pract ice have involved abortion, birth control, and welfare prosecutions involving abandoned or illegitimate children. We have found only a few cases where the propriety of the technique was discussed . . . . *** While the issue is not free from doubt we think all cases we reviewed implicitly, at least, recognize t hat identifying a plaintiff only by a pseudonym is an u nusual procedure, to be allowed only where there is an important privacy interest to be recognized . It is subject to a decision by the judge as to the need for the c loak of anonymity. The lower court here gives no reason fo r its denial of permission to use the pseudonym. But Lin dsey had already suffered the worst of the publicity and embarrassment by being a named defendant in a state criminal trial. . . This is not a case where there seems a social interest in concealment of his identity. We believe that the proper standard of review upon app eal is whether the trial court abused its discretion , and hold that it did not err in refusing to permit the actio n to be carried on under the John Doe pseudonym. (Emphasis supplied; citations omitted). In Doe v. Frank, 951 F. 2d 320 (11th Cir. 1992) a former postal emp loyee sued for unlawful discrimination because of his physical handicap i.e., alcoholism. The District Court denied his motion to proceed und er a fictitious name, and on-12-

appeal the appellate court found that this was not an abuse of discretion:

Lawsuits are public events. A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sen sitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurre d as a result of the disclosure of the plaintiff's identity. The risk that a plaintiff may suffer some embarrassmentis not enough. This case does not present such an unu sual situation in which the need for party anonymity outweighs the presumption of openness. [951 F. 2d at 324]. See also James v. Jacobson , 6 F. 3d 233 (4th Cir. 1993), where the court rule d that a decision to allow or to deny parties to proc eed anonymously must be based upon "informed discretion", after taking all releva nt factors into consideration:

. . . Federal courts traditionally have recognized that in some cases the general presumption of open trials - including identification of parties and witnesses b y their real names - should yield in deference to sufficien tly pressing needs for party or witness anonymity. Whe ther the circumstances warrant anonymity in particular c ases is committed in the first instance to trial court discretion, which is then subject to appellate revi ew only for "abuse". This means that there is no legal rig ht in parties either to be allowed anonymity or to avoid it, and that trial courts correspondingly have no unreview- able license either to grant or deny anonymity on genera l principles, but power only to grant or deny it on t he basis of an "informed" discretion. . . Failure to take relevant factors into account or acting on the basi s of legal or factual misapprehensions respecting those factors makes an exercise of discretion not "inform ed", hence potentially an abuse of discretion. [6 F. 3d at p. 242].5 Article V, § 50 of the Colorado Constitution provides that public funding for

abortions is "forbidden":

No public funds shall be used by the State of Colorado, its agencies or political subdivisions to pay or otherwise reimburse, either directly or indirectly, any person, agency or facility for the performance of any induced abortion, PROVIDED HOWEVER, that the General Assembly, by specific bill, may authorize and appropriate funds to be used for those medical services necessary to prevent the death of either a pregnant woman or her unborn child under circumstances where every reasonable effort is made to preserve the life of each. In Hern v. Beye , 57 F.3d 906 (10th Cir. 1995), cert. den. , 33 L.Ed 2d 494, this circuit ruled that the State of Colorado, as a participant in the Medicaid program could not deny funding for abortions to women who are victims of rape or incest. -13- In Coe v. U.S. Dist. Court for Dist. of Colorado , supra , 676 F. 2d 411 (10th Cir. 1982) a doctor, facing professional disciplina ry proceedings arising from complaints of alleged sexual or immoral improprieti es, sued to enjoin public hearings before the state medical board. Plaintiff there contended that public hear-ings would cause irreparable harm to his caree r. Considering the issue under Rule 10(a) of the Federal Rules of Civil Procedure, this circuit determined that plaintiff's interest in privacy was outweighed by t he public interest. In the situation in the case now before us, it is c lear that the district court exercised "informed discretion" and weighed the pla intiff's claimed right to privacy against the countervailing public interest in determining that the motion to proceed under a fictitious name should be denied. 5 While plaintiff claims that-14-

her inability to proceed under a pseudonym "might s ubject her to humiliation, embarrassment and to possible intimidation and reta liation by staff members of the institution where she is detained," (App., p. 1 2) it is readily apparent, as the district court found, that in fact the plaintiff's identity is already known to the state agency and staff. In the first instance, we believe that the prejudic e to the public interest is clear, should the district court have allowed plain tiff to proceed under a fictitious name. Plaintiff's claim to relief clearly involves the use of public funds, and the public certainly has a valid interest in knowing ho w state revenues are spent. In determining whether or not a district court abus ed its discretion in dismissing a case for violation of court rules and orders, this circuit has considered various factors bearing upon the issue. These include the degree of prejudice to the defendant, the amount of interfere nce with the judicial process, the culpability of the litigant, and whether he has been warned in advance of the possibility of dismissal, and a consideration of le sser sanctions than dismissal. See Ehrenhaus v. Reynolds, 965 F. 2d 916, 921 (10th Cir. 1992). The record i n this case establishes that plaintiff was given seve ral opportunities to comply with the federal rules of procedure governing the case a nd the orders of the court, and that she was warned in the event of a failure to do so her case would be dismissed.-15-

The dismissal in this case can only be overturned i f the orders of the court are found to constitute an abuse of discretion. Th e district court did not abuse its discretion in dismissing the action because its dec ision fully complied with the tests set out by this Court in Ehrenhaus v. Reynolds , supra . In particular, we conclude that the plaintiff's refusal to comply wit h the Federal Rules of Civil Procedure and the district court's orders interfere d with the judicial process. Fair warning was given that the case would be dismissed, and there is no reason to believe that lesser sanctions would be effective in compelling compliance with the orders of the court. Under these circumstances, the judgment of the dist rict court is
AFFIRMED.