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Pursuant to D.C.COLO.LCivR 7.1C, a judicial officer may rule on a motion at anytime after

it is filed.

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-01983-WJM-KLM

JAMES ROE,

Plaintiff,

v.

MARGARET HEIL, in her personal capacity and in her official capacity as Chief of

Behavioral Health for the Colorado Department of Corrections,

Defendant.

_____________________________________________________________________

ORDER

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Plaintiff’s Motion to Proceed Anonymously [Docket

No. 2; Filed August 1, 2011] (the “Motion”). Service has not yet been completed on

Defendant in this matter. The Court determines that the motion is ripe for review without

a response.1

 For the reasons stated below, the Court DENIES Plaintiff’s Motion.

Plaintiff is a Colorado state prisoner incarcerated at the Bent County, Colorado

facility. See Compl., Docket No. 1 at 2. Plaintiff is represented by counsel. Through his

counsel, Plaintiff requests to bring this lawsuit anonymously. Plaintiff attests that as a

convicted sex offender in the custody of the Colorado Department of Corrections (“CDOC”),

he is vulnerable to “severe beatings from other prisoners.” Motion, Docket No. 2 at 1.

Plaintiff believes that, should his real name be disclosed through this lawsuit, he could be

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subjected to physical harm at the hands of other inmates. Id. at 1-2. Plaintiff contends that

he is at a unique level of risk for harm, because “his crimes involved minors.” Id. at 2.

Plaintiff recites two past instances of actual threats directed to Plaintiff, as a result of his

criminal offenses becoming known to others, including the brothers of the victims of his

crimes. Id. at 2-3.

Additionally, Plaintiff alleges that considerations related to his wife weigh in favor of

proceeding anonymously. Id. at 3. Plaintiff represents that his wife “has a professional

position with a major university in this state,” and exposure of his status as a convicted sex

offender could harm her employment and her reputation “in the small town where she

lives.” Id. Plaintiff suggests that without permission to proceed anonymously, he would be

“discouraged” from proceeding with his lawsuit. Id. at 4. Plaintiff avers that Defendant will

not be prejudiced by the protection of his identity, due to the primarily legal nature of his

claims. Id.

“Proceeding under a pseudonym in federal court is, by all accounts, ‘an unusual

procedure.’” Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000) (citing M.M. v.

Zavaras, 139 F.3d 798, 800 (10th Cir. 1998)). Whether a plaintiff may proceed

anonymously is subject to the discretion of the trial court. See M.M., 139 F.3d at 799

(review of a district court decision denying leave to proceed under a pseudonym pursuant

to the abuse of discretion standard). The Federal Rules of Civil Procedure do not

contemplate the anonymity of parties. Id. at 802. To the contrary, Rule 10(a) requires that

the complaint “name all the parties,” and Rule 17(a) prescribes that an action be

prosecuted “in the name of the real party in interest.” However, federal courts have granted

permission to plaintiffs to proceed anonymously under certain limited circumstances. 

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The Tenth Circuit historically has looked to the Eleventh Circuit’s jurisprudence

regarding whether a plaintiff should be allowed to proceed anonymously. See Femedeer,

227 F.3d at 1246 (citing Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992)); M.M., 139 F.3d

at 802-03 (same). The Eleventh Circuit enumerated three contexts in which a pseudonym

is appropriate: 1) “matters of a highly sensitive and personal nature”; 2) cases involving a

“real danger of physical harm”; and 3) instances “where the injury litigated against would

be incurred as a result of the disclosure of the plaintiff’s identity.” Id. Moreover, the Court

must “weigh the public interest in determining whether some form of anonymity is

warranted.” Femedeer, 227 F.3d at 1246 (citing M.M., 139 F.3d at 802-03).

In M.M., a female inmate brought suit against the CDOC arising from allegations that

a correctional officer declined to facilitate the inmate’s transportation to and payment for

abortion services. 139 F.3d at 799. The district court denied the inmate’s request to

proceed anonymously on the bases of Rule 17(a), that the case presented issues of public

policy (“expenditure of public funds”) and because the identity of the plaintiff would have

been known in any event to her jailers. Id. at 800. The district court found “that whatever

interest in privacy is claimed on behalf of the plaintiff, the numerous countervailing public

interests clearly and decisively outweigh it.” Id. 

The Tenth Circuit affirmed the lower court, for three key reasons. First, the M.M.

court found that the lower court did not abuse its discretion, because it “exercised ‘informed

discretion.’” Id. Second, the court was persuaded by the “fact the plaintiff’s identity is

already known to the state agency and staff.” Id. Third, the court agreed that as the

plaintiff’s “claim to relief clearly involve[d] the use of public funds, . . . the public certainly

ha[d] a valid interest in knowing how state revenues are spent.” Id.

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In Femedeer, the Tenth Circuit again denied a plaintiff’s request to proceed

anonymously. 227 F.3d at 1246-47. The plaintiff in Femedeer, like the Plaintiff in this

matter, is a convicted sex offender. Id. at 1246. The Femedeer court determined that the

public’s interest in access to legal proceedings that attack “the constitutionality of popularly

enacted legislation” outweighed the plaintiff’s privacy concerns. Id. The court further noted

that a plaintiff proceeding anonymously increases the difficulty of applying res judicata or

collateral estoppel. Id. In any event, the court believed that the disclosure of the plaintiff’s

status as a sex offender had “presumably already occurred in the underlying conviction.”

Id. Finally, the court was not persuaded by plaintiff’s request, because he failed to

“establish real, imminent personal danger.” Id.

A judge in this district applied the Femedeer analysis in reaching the opposite

conclusion. In Does I-V v. Rodriguez, Senior District Judge Babcock granted a motion to

proceed anonymously submitted by five plaintiffs, who at the time were Mexican nationals

who had been “virtually imprisoned” by the defendants at a farm labor compound in

Colorado. Nos. 06-cv-00805-LTB & 06-mc-0017-LTB, 2007 WL 684114, at *1 (D. Colo.

Mar. 2, 2007). The premise of the plaintiffs’ request was their fear of retaliation from the

defendants for bringing the civil case after initiating the criminal investigation. Rodriguez,

2007 WL 684114 at *2. Although the defendants had been deported to Mexico some

months prior, the defendants’ son remained in Colorado, and counsel for the plaintiffs had

heard defendants’ family members making “threatening comments” related to the plaintiffs.

Id. Judge Babcock found that cumulatively, the investigation, presence of the son,

overheard threats, and civil allegations of coercion and violence “raise[d] a serious concern

that the plaintiffs . . . [were] at significant risk of retaliation.” Id. He thus granted the

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request to proceed anonymously.

In Doe v. Heil, another magistrate judge in this district analyzed a request nearly

identical to that within the motion at hand, pursuant to M.M. and Femedeer. No. 08-cv02342-WYD-CBS, 2008 WL 4889550 (D. Colo. Nov. 13, 2008). Counsel for Plaintiff in this

case also represented the Doe v. Heil (“Doe I”) plaintiff. The Doe I plaintiff challenged the

CDOC’s policy which requires an offender participating in the sex offender treatment

program to take and pass a polygraph examination, as well as other policies related to the

program, as unconstitutional. 2008 WL 4889550 at *1. The plaintiff brought his request

to proceed anonymously on the grounds that, as a convicted sex offender, he feared being

beaten by other inmates “if his real name and status as a sex offender was disseminated

within the general prison population.” Id. at *2. As an exacerbating consideration, the

plaintiff asserted that he suffered from congestive heart failure and utilized a pace maker

and a blood thinning prescription as part of his medical treatment. Id. 

The Doe I court concluded that without additional facts, the plaintiff’s status as a

convicted sex offender would not justify the use of a pseudonym, particularly considering

that the conviction itself was presumably part of the public record. Id. at *3. However, the

court weighed heavily the plaintiff’s contention that his risk of physical harm was increased

due to his heart condition and treatment. Id. The court distinguished the facts of Femedeer

on this basis. Furthermore, the court determined that the nature of the challenge as

constitutional and the absence of a request for money damages did not indicate that the

dispute would hinge on issues of fact. Id. at *4. The court balanced these considerations

with the public interest and concluded that the Doe I plaintiff should be permitted to proceed

anonymously. Id.

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Here, the Court conducts the same balancing test contemplated by the cases

described above. Plaintiff presents five discrete considerations in support of his request:

1) he is a convicted sex offender incarcerated with the CDOC’s general population, and sex

offenders, by virtue of their offense, are subject to severe beatings from other prisoners;

2) he committed his crimes against minors, which heightens his risk of violence at the

hands of other inmates; 3) his offense was disclosed at a county jail, thus he was kept in

protective custody due to the resulting threats; 4) the brothers of his victims are aware that

he is incarcerated and are recognized as his “enemies”; and 5) disclosure of his crimes

would adversely affect his wife’s employment and status in her home town.

The Court finds that these considerations, even cumulatively, do not outweigh the

public interest in open access to the courts. The Court agrees with the Doe I court’s

determination that the stand-alone fact of Plaintiff’s status as a convicted sex offender

(against minors or otherwise) is not enough to justify anonymity, despite the recognized

vulnerability of sex offenders in prison. It is well-settled that “prison officials have a duty

. . . to protect prisoners from violence at the hands of other prisoners,” Farmer v. Brennan,

511 U.S. 825, 833 (1994) (citation omitted), and the Eighth Amendment provides a route

for relief when prison officials fail to uphold that duty. The first two reasons presented by

Plaintiff thus do not persuade the Court to allow anonymous filing.

Regarding the remaining three reasons, the Court believes a similar analysis applies

to each. Like the above-stated cases, the Court presumes that the disclosure of Plaintiff’s

status as a convicted sex offender has already occurred as a result of the underlying

conviction and accompanying proceedings, thus countering Plaintiff’s assertion that the

disclosure of his identity in this civil lawsuit would prejudice his wife. It is further reasonable

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Both challenges involve statutes enacted by state legislatures related to persons convicted

of sex-based criminal offenses.

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to presume that the brothers of his victims would know his identity for the same reason.

And, as to the disclosure in the county jail, Plaintiff’s concern about the potential for

disclosure of his identity became reality due to circumstances unrelated to his filing of this

lawsuit, at least as to that location, thereby mooting this basis for his request. To the extent

that Plaintiff implies that disclosure of his identity in the Bent County facility would cause

the same problem he experienced in the other county jail, he fails to explain how requiring

him to bring the lawsuit in his own name would necessarily result in disclosure of his

identity to other inmates in Bent County.

Plaintiff in this matter is more like the Femedeer plaintiff and less like the plaintiffs

in Rodriguez or Doe I. The Rodriguez plaintiffs participated in the criminal prosecution of

the civil defendants and experienced direct threats as a result. It is no leap of logic to

conclude that they would further be subjected to threats of violence (and likely actual

violence, as alleged in their civil complaint) should their identities be disclosed in the civil

lawsuit. The Doe I plaintiff suffered from a serious medical condition, which provided a

weighty additional consideration in that case. The extraordinary conditions present in

Rodriguez and Doe I simply are not present here.

As explained by the Tenth Circuit in Femedeer, “the public has an important interest

in access to legal proceedings, particularly those attacking the constitutionality of popularly

enacted legislation.” 227 F.3d at 1246. Plaintiff attacks the constitutionality of certain

policies within the CDOC’s Sex Offender Treatment and Monitoring Program, similar to the

Femedeer plaintiff’s challenge to the State of Utah’s “sex offender notification scheme.”2

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The previous matter is presently on appeal to the Tenth Circuit as submitted by the plaintiff,

and the plaintiff has additionally filed a motion for reconsideration pending before the District Court.

See Case No. 08-cv-02342-WYD-CBS. Chief Judge Wiley Y. Daniel granted the defendants’

motion to dismiss in full on March 21, 2011, on the merits of each claim. In an order on a

subsequent motion to amend judgement by the plaintiff, Judge Daniel explained that the claims

were “dismissed only to the extent they relate to Plaintiff’s termination from the sex-offender

treatment program and to the policies and alleged constitutional deprivations related to same.” Doe

v. Heil, 2010 WL 1258011, at *2 (D. Colo. Mar. 26, 2010). Review of the complaint in this case

demonstrates to the Court that this Plaintiff also challenges his termination from the sex-offender

treatment program and the policies within the program as unconstitutional. See Compl., Docket No.

1.

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This type of lawsuit is not uncommon in terms of prisoner litigation. See, e.g., Petersen v.

Dunlap, No. 08-cv-00668-ZLW-KMT, 2010 WL 4977821 (D. Colo. Oct. 22, 2010); Conkleton v.

Zavaras, No. 08-cv-02612-WYD-MEH, 2009 WL 6047205 (D. Colo. Oct. 1, 2009); Nance v.

Stommel, No. 08-cv-00977-REB-KLM, 2008 WL 5104810 (D. Colo. Dec. 3, 2008); Beebe v. Heil,

333 F. Supp. 2d 1011 (D. Colo. 2004). The Court believes that policy dictates restraint in the

adjudication of Plaintiff’s request, as permitting this Plaintiff under these circumstances to bring suit

under a pseudonym would set an undesired precedent. More often than not, the prisoner bringing

this type of lawsuit proceeds pro se and may file multiple cases pertaining to the same claims.

Opening the doors to anonymous filings under such circumstances would be the antithesis of

efficiency, expedience, and the just resolution of nonfrivolous disputes.

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 Additionally, as pointed out by the Femedeer court, without the knowledge of Plaintiff’s

identity, the Court is constrained in its ability “to apply legal principles of res judicata and

collateral estoppel.” Id. The Court is more cognizant of this fact considering the similarities

between the case at hand and the case adjudicated by the Doe I court, as the same

counsel is involved, the same defendant is named, and the presented claims are distinctly

similar.3

“Ordinarily, those using the courts must be prepared to accept the public scrutiny

that is an inherent part of public trials.” Femedeer, 227 F.3d at 1246. In sum, although

Plaintiff is more vulnerable to prison violence as a convicted sex offender incarcerated with

the CDOC’s general population, Plaintiff proffers no extraordinary circumstance that would

justify his use of a pseudonym as he pursues this civil action.4

 Plaintiff challenges a

statutory scheme of great public import that has been challenged before on similar facts

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against the same defendant and by the same counsel. Thus, the public interest is strong,

and outweighs Plaintiff’s interest in proceeding anonymously. Accordingly,

IT IS HEREBY ORDERED that the Motion is DENIED. Plaintiff shall file a sworn

affidavit under seal revealing his true identity and a contemporaneous motion to seal, on

or before September 21, 2011. If he pursues the prosecution of this lawsuit, the caption

shall bear his correct name, unless the motion to seal is granted or the District Court

sustains any objection to this Order.

Dated and entered at Denver, Colorado, this 7th day of September, 2011.

 BY THE COURT:

 s/Kristen L. Mix 

Kristen L. Mix

 United States Magistrate Judge

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