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Goico v. Kansas

United States District Court, D. Kansas

March 26, 2019

PETER MARIO GOICO Plaintiff,
v.
STATE OF KANSAS and GOVERNOR LAURA KELLY Defendant.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiffs Motion for Filing Under Seal (ECF No. 3), Motion for Appointment of Counsel (ECF No. 5), and Revised Motion to be Anonymous (ECF No. 8). Upon careful review and for the reasons stated herein, all Motions are DENIED WITHOUT PREJUDICE.

         I. Background

         Plaintiff, proceeding pro se, filed a Civil Complaint against the State of Kansas and Governor Laura Kelly on March 8, 2019.[1] Plaintiff claims Defendants intend to legalize medical marijuana in the near future.[2] Plaintiff asserts any attempt to do so is unconstitutional and will interfere with his investment in a pharmaceutical company.[3] Legalization of medical marijuana, per Plaintiff, will lead to consumers buying less medication from pharmaceutical companies, lessening his chances of a return on his investment.[4]

         On March 8, 2019, Plaintiff also filed a Motion for Filing Under Seal, asking this Court to seal the case out of safety and retaliation concerns.[5] On March 12, 2019, Plaintiff filed a Motion for Appointment of Counsel and Affidavit of Financial Status.[6] On March 22, 2019, Plaintiff filed a Revised Motion to be Anonymous, clarifying his intent to proceed anonymously.[7] These Motions are ripe for ruling before the undersigned Magistrate Judge. Plaintiff has also filed a Motion for Injunction against the State of Kansas[8] and a Revised Motion for Preliminary Injunction against the State of Kansas, [9] which will be decided by District Judge J. Thomas Marten.

         II. Motion for Filing Under Seal (ECF No. 3) and Revised Motion to be Anonymous (ECF No. 8)

         In his Motion for Filing Under Seal, Plaintiff does not state whether he seeks to seal the entire case or only certain documents that have been filed or may be filed in the future. Either way, the Court must deny Plaintiff's Motion for Filing Under Seal for lack of specific, concrete facts supporting such a request to seal judicial records from public view. For the same reasons, the Court must deny the Revised Motion to be Anonymous.

         "It is well settled that federal courts recognize a common-law right of access to judicial records. This right derives from the public's interest in understanding disputes that are presented to a public forum for resolution and is intended to assure that the courts are fairly run and judges are honest."[10] However, the public's right of access is not absolute.[11]"Because federal district courts have supervisory control over their own records and files, the decision whether to allow access to those records is left to the court's sound discretion. In exercising that discretion, the court must consider the relevant facts and circumstances of the case and balance the public's right of access, which is presumed paramount, with the parties' interests in sealing the record or a portion thereof"[12] Documents should be sealed "only on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture."[13]

         In support of his request to seal, Plaintiff asserts a concern for "threats on personal safety."[14] However, Plaintiff provides no specific facts showing any threats to him personally. Plaintiff generally cites to protests and groups that have garnered national attention in the last few years for turning violent or for threatening violence against those who do not share their opinions on certain topics.[15] Plaintiff also makes a vague reference to drug cartel violence.[16] But, he gives no particularized examples. As stated above, documents will not be sealed on the basis of unsupported hypothesis or conjecture.

         Likewise, the Court declines Plaintiffs concern of "threats of retaliation by the State in the form of economic harm" as a reason to seal the record.[17] Plaintiff states he receives disability income and all "it takes is one bureaucrat to 'reevaluate' my status and the State can cause economic harm in retaliation."[18] But again, Plaintiff provides no facts showing any such action has actually occurred to him or been threatened against him.[19] As such, the Court must decline Plaintiffs request to seal the record.

         Similarly, the Court must decline Plaintiffs request to use an alias and proceed anonymously, as sought in the Revised Motion to be Anonymous.[20] Federal Rule of Civil Procedure 17(a)(1) requires an action to be prosecuted in the name of the real party in interest. However, while there are no rules or statutes allowing parties to proceed under a fictitious name, courts recognize some cases may present "exceptional circumstances" allowing a party to proceed anonymously.[21] But, this is not such a case.

         A plaintiff seeking to proceed under an alias must typically show disclosure of his identity in the public record would reveal highly sensitive and personal information resulting in a social stigma or the threat of real and imminent physical harm:

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 plaintiffs identity.[22]

         Further, because the public has an important interest in access to legal proceedings, its interest should be considered in determining whether some form of anonymity is warranted.[23] Thus, a plaintiff should not be permitted to proceed under an alias unless the need for anonymity outweighs the public interest in favor of openness.[24]

         Plaintiff gives no additional reasons why he should be allowed to use an alias except for the reasons supporting sealing of the case as discussed above.[25] And, for the same reasons his request to seal is denied, so is his request to proceed under an alias. Plaintiff has not offered any individualized or imminent reasons justifying proceeding anonymously. Speculative, vague, impersonal, and generalized examples of threats of violence and retaliation are insufficient to demonstrate an "exceptional circumstance" exists to shield Plaintiffs identity from the public.[26]

         For the foregoing reasons, the Court DENIES Plaintiff's Motion for Filing Under Seal and Revised Motion to be Anonymous, but does so without prejudice. As this case progresses, Plaintiff may renew his motions, but only "Plaintiff can articulate a specific, imminent, and concrete harm that would outweigh the public's right of access to judicial records.[27] If Plaintiff submits motions to file certain documents under seal in the future, Plaintiff is directed to follow D. Kan. Rule 5.4.6.[28]

         III. Motion for Appointment of Counsel

         Plaintiff has also filed a Motion for Appointment of Counsel and supporting Affidavit of Financial Status.[29] After careful consideration and for the reasons stated below, the Court declines to appoint counsel to represent Plaintiff at this time.

         In general, there is no constitutional right to appointment of counsel in a civil case.[30]When evaluating whether to appoint counsel, the court considers multiple factors, such as (1) the merits of the litigant's claims, including the nature and complexity of those claims; (2) the litigant's ability to present his claims; (3) the litigant's financial ability to pay an attorney; and (4) the litigant's diligence in attempting to secure an attorney.[31] The party seeking counsel has the burden "to convince the court" that asserted claims have sufficient merit to warrant the appointment of counsel.[32]

         Thoughtful and prudent care in appointing representation is necessary so that willing counsel may be located.[33] The court has an obligation not to make indiscriminate appointments on every occasion that a plaintiff seeks court-ordered counsel, [34] particularly in light of the expanding federal court dockets, increased filings by pro se parties, and decreasing number of attorneys willing to accept appointments.[35]

         The Court is satisfied the third and fourth factors outlined above are met. Plaintiff s Affidavit of Financial Status shows Plaintiff is unemployed and the Court perceives it would be difficult for Plaintiff to afford an attorney without depleting his assets.[36] And, ...


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