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 Policy, New York, N.Y. (Mark

Silverstein, Jane Anne Bell, American Civil Liberties Union Foundation of

Colorado, Denver, Colorado, and Janet Crepps, Kathryn Kolbert, Center for

Reproductive Law & Policy, New York, N.Y., with her on the Brief), for

Plaintiff-Appellant.

Michael S. Williams, Denver, Colorado (Gale A. Norton, Attorney General and

Paul Farley, Deputy Attorney General, Colorado Department of Law, Denver,

Colorado, with him on the Brief), for Defendant-Appellee.
 

*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 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
 

2

 Rule 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, 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
 

2

(...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 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
 

4

 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 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.
-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 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
-7-

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 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 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. 
-8-

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 the

plaintiff's name. . . This procedure has not been

permitted when only the plaintiff's economic or

professional concerns are involved . . . or when there is

the threat of criminal or civil prosecution . . . 

 In this case, the unnamed plaintiffs have made no

request to the district court for permission to proceed

anonymously, nor have they otherwise disclosed their

identities to the court or to the defendants. Absent

permission by the district court to proceed anonymously,
-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 the

unnamed parties, as a case has not been commenced with

respect to them. (Citations omitted)(886 F. 2d at 1245).

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 determining

whether an order of dismissal is appealable, we must

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 ordinarily 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 without

prejudice as a sanction under Rule 41(b). We concluded

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 denying her leave to file an

amended complaint under seal, and the order dismissing her entire action as a

sanction for failure to comply with applicable federal rules, and the orders of the

court. While the district court did not specify whether the dismissal was with or

without prejudice, Rule 41(b) Fed. R. Civ. P. provides 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 dismissed, and we therefore find that

the motion to dismiss the appeal should be denied.

There being jurisdiction in this appeal, the only question on appeal is

whether or not the district court abused its discretion in denying leave to file

under a pseudonym and in dismissing the case as a sanction 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, slander and civil rights violations. As

a side issue in the case, the court considered whether or not plaintiff had a right to

proceed under the fictitious John Doe name to preserve his anonymity. It was

pointed out that the decision involved a weighing of a privacy issue against the

public interest:
-11-

(592 F. 2d at 1125)

 This 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. Such use obviously may cause problems to

defendants engaging in discovery and establishing their

defenses, and in fixing res judicata effects of judgments. 

Yet the Supreme Court has given the practice implicit

recognition in the abortion cases. . . with minimal

discussion. Most of the cases permitting the practice

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 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 . It is subject

to a decision by the judge as to the need for the cloak of

anonymity. The lower court here gives no reason for its

denial of permission to use the pseudonym. But Lindsey

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 appeal is

whether the trial court abused its discretion , and hold

that it did not err in refusing to permit the action 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 employee sued

for unlawful discrimination because of his physical handicap i.e., alcoholism. 

The District Court denied his motion to proceed under 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 sensitive

and personal nature, real danger of physical harm, or

where the injury litigated against would be incurred as a

result of the disclosure of the plaintiff's identity. The

risk that a plaintiff may suffer some embarrassment is

not enough. This case does not present such an unusual

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 ruled

that a decision to allow or to deny parties to proceed anonymously must be based

upon "informed discretion", after taking all relevant factors into consideration:

. . . Federal courts traditionally have recognized that in

some cases the general presumption of open trials -

including identification of parties and witnesses by their

real names - should yield in deference to sufficiently

pressing needs for party or witness anonymity. Whether

the circumstances warrant anonymity in particular cases

is committed in the first instance to trial court

discretion, which is then subject to appellate review only

for "abuse". This means that there is no legal right 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 general

principles, but power only to grant or deny it on the

basis of an "informed" discretion. . . Failure to take

relevant factors into account or acting on the basis of

legal or factual misapprehensions respecting those

factors makes an exercise of discretion not "informed",

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 disciplinary proceedings arising from

complaints of alleged sexual or immoral improprieties, sued to enjoin public

hearings before the state medical board. Plaintiff there contended that public

hear-ings would cause irreparable harm to his career. 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 the public interest.

In the situation in the case now before us, it is clear that the district court

exercised "informed discretion" and weighed the plaintiff'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 subject her to humiliation,

embarrassment and to possible intimidation and retaliation by staff members of

the institution where she is detained," (App., p. 12) 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 prejudice to the public interest is

clear, should the district court have allowed plaintiff 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 how state revenues are spent. 

In determining whether or not a district court abused 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 interference 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 lesser sanctions than dismissal. 

See Ehrenhaus v. Reynolds, 965 F. 2d 916, 921 (10th Cir. 1992). The record in

this case establishes that plaintiff was given several opportunities to comply with

the federal rules of procedure governing the case and 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 if the orders of the court

are found to constitute an abuse of discretion. The district court did not abuse its

discretion in dismissing the action because its decision 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 with the Federal Rules of Civil

Procedure and the district court's orders interfered 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 district court is

AFFIRMED.