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M.T. v. Olathe Public Schools USD 233

United States District Court, D. Kansas

February 9, 2018

M. T., Individually and as next friend of minor, M. S., Plaintiffs,
v.
OLATHE PUBLIC SCHOOLS USD 233 AND ITS BOARD OF EDUCATION, et al., Defendants.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER United States Magistrate Judge.

         This matter is before the Court on Plaintiffs' Motion to Proceed by Pseudonym (ECF No. 2) and Plaintiffs' Petition for Appointment of Next Friend (ECF No. 3). The Court has considered both motions and the supporting memorandum (ECF No. 4). For the reasons set forth below, Plaintiffs' Petition for Appointment of Next Friend (ECF No. 3) is DENIED AS MOOT and Plaintiffs' Motion to Proceed by Pseudonym (ECF No. 2) is GRANTED.

         I. Background[1]

         This is a civil rights action, brought by a minor student, “M.S., ” and her mother, “M.T., ” against the student's school. Plaintiffs allege both Title IX and Due Process violations arising from a sexual assault on the student that occurred in 2015, during school hours and on school property. At the time of the assault, M.S. was 12 years old.

         Plaintiffs filed this case against the school district, Olathe Public Schools USD 233 (“District”), along with the alleged perpetrator of the assault, “D.B., ” who Plaintiffs note may also be a minor. Plaintiffs claim the District is liable for the assault due to its negligence under both Title IX and the Kansas Tort Claims Act. In addition, Plaintiffs allege the District breached its fiduciary duty to the student; that the actions of the District negligently or intentionally inflicted emotional distress on the student; and that the District is unjustly enriched by failing to reimburse Plaintiffs for the student's medical, psychiatric, and hospital bills.

         Along with the Complaint, Plaintiffs submitted their motion to proceed by pseudonym (ECF No. 2) and a request for M.S.'s mother to be appointed as her next friend (ECF No. 3). Both motions are ripe for the Court's consideration.

         II. Plaintiffs' Motion to Proceed by Pseudonym (ECF No. 2)

         Plaintiffs first ask the Court to permit them to proceed using the pseudonyms “M.S.” and “M.T.” for the pendency of the action. They contend that, because M.S. is a minor who suffered a sexual assault, her identity should be protected. Likewise, because M.T. is the mother of M.S., identification of M.T. would necessarily identify the minor child. Plaintiffs contend that if their identities were revealed, they and their family would be subject to public ridicule, threats, and humiliation, and this would cause additional psychological harm.

         A. Legal Standard

         Because M.S. is a minor, Fed.R.Civ.P. 5.2(a) affords her privacy, in the form of requiring her to be named only by her initials. Under Rule 5.2(a), any court filing that contains “the name of an individual known to be a minor” “may include only the minor's initials.”[2] The advisory committee notes to Rule 5.2 state that it was “derived from and implements the policy adopted by the Judicial Conference . . . to address the privacy concerns resulting from public access to electronic case files.”[3] But, although M.S. is permitted to proceed using only her initials, her adult mother, M.T., is not similarly protected by Rule 5.2. In order to proceed with a case using only initials, an adult party must request to proceed by use of a pseudonym.

         Because the federal rules of civil procedure do not “contemplate the anonymity of parties, ”[4] proceeding by use of a pseudonym in federal court is “an unusual procedure.”[5]Even so, courts in this District[6] and the Tenth Circuit have approved the use of pseudonyms in certain cases.[7] The standard utilized by the Tenth Circuit and followed by this District provides:

Lawsuits are public events. A plaintiff should be permitted to proceed anonymously only in exceptional cases involving matters of 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.[8]

         The trial court may determine, in its discretion, whether to allow a party to proceed anonymously, but in doing so, the court should weigh the plaintiff's privacy interests against the interests of the public.[9] If the court allows the party to proceed using a pseudonym, “it is often with the requirement that the real names of the plaintiffs be disclosed to the defense and the court but kept under seal thereafter.”[10]

         B. Discussion

         The Court notes, at the outset, that the defendant District has not yet answered the Complaint (see Clerk's Extension, ECF No. 8), and the status of service on the individual defendant is unknown. However, after thorough review of the Complaint and Plaintiffs' briefing (ECF No. 2, 4) the Court finds no response to the motion is necessary and is prepared to decide the request.

         In this case, Plaintiffs seek to recover damages related to the sexual assault of a minor child. In prior cases, courts have found the sexual abuse of a minor to be a matter S.Ct. 116, 62 L.Ed.2d 75 (1979); Coe v. U.S. Dist. Court of Dist. of Colorado, 676 F.2d 411 (10th Cir. 1982); Zavaras, 139 F.3d at 800). of a “highly sensitive and personal nature.”[11] A recent case from this district, Doe H. v. Haskell Indian Nations University, analyzed the complaints of sexual abuse by a college student, and found that the adult sexual assault victim could not proceed anonymously.[12]In its decision, the court focused on the fact that the plaintiff in that case was not a minor, and referred to other decisions where courts granted “heightened protection” to child victims.[13]

         More similar to the facts of this case are the decisions in Doe v. USD No. 237 Smith Center School District[14] and J.B. v. Liberal School District, USD No. 480.[15] In each of these cases, the allegations in the complaints involved the sexual abuse of a minor. Although both plaintiffs had reached the age of majority prior to filing their lawsuits, both were minors at the times they were allegedly abused.[16] Noting the highly personal nature of the allegations, and the risk that identification would exacerbate the emotional harms already alleged, each court permitted the plaintiff to proceed using a pseudonym.[17]

         As in both the Smith Center and Liberal cases, this Court is particularly concerned with the age of the student plaintiff. Although public access to court proceedings is of utmost importance, and the public has a general interest “in understanding disputes that are presented to a public forum for resolution and in assuring that the courts are fairly run”, [18] the Court does not find the public interest unduly affected by the anonymity of the parties to this suit. In addition to her physical and economic damages, the minor student claims to have suffered significant psychological harm as a result of the alleged assault. Identifying the student, through the identification of her mother, is likely to expose both Plaintiffs to additional psychological trauma, as well as potential harassment or retaliation. Although ...


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