Doe v. Florida Gulf Coast University Board of Trustees

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JOHN DOE,

Plaintiff,

v. Case No.: 2:23-cv-245-SPC-KCD

FLORIDA GULF COAST

UNIVERSITY BOARD OF

TRUSTEES,

Defendant.

/

OPINION AND ORDER

Before the Court is Plaintiff John Doe’s Motion to Proceed Anonymously.

(Doc. 21). Doe, a former student of Florida Gulf Coast University (“FGCU”), is

challenging the Defendant FGCU Board of Trustees’ actions in investigating a

claim of sexual harassment made against him by another student, Jane Roe.

He moves to proceed anonymously “up to the point of trial” to protect his

privacy. (Doc. 21).1 FGCU responds that Doe’s privacy interest does not

outweigh the presumption of public access to court proceedings. (Doc. 28).

Because Doe has not overcome this presumption, the motion is denied.

1 Unless otherwise indicated, all internal quotation marks, citations, and alterations have

been omitted in this and later citations.

BACKGROUND2

This is a sex discrimination case. Doe and Roe dated for a short period

of time in 2019. After their relationship ended, both attended FGCU. While

students at FGCU, they engaged in consensual sex. On one occasion in the

early morning hours of October 6, 2019, Roe alleged Doe had sex with her when

she was too intoxicated to consent. The day and night of the alleged incident

is detailed in the complaint (Doc. 1), along with screenshots of the text

messages exchanged between the two. Roe had been drinking alcohol that

night and Doe had been smoking marijuana.

By the end of 2019, Doe’s and Roe’s relationship cooled. Around that

same time, Roe told Doe she suspected she might have a sexually transmitted

disease. Roe texted Doe off and on through the beginning of 2020, but Doe did

not respond. Then, in August 2020, FGCU notified Doe that Roe had filed a

complaint against him, claiming that their sexual encounter in October 2019

was non-consensual.

FGCU investigated the complaint, and that investigation is the heart of

this dispute. Doe alleges the investigation was inadequate. He says he was

never provided with the complaint, the investigative report, or any evidence

Roe submitted against him. He was also never allowed to cross-examine Roe.

2 The Court highlights the facts from the complaint relevant to the decision here.

At bottom, Doe alleges that FGCU failed to follow its own policy for dealing

with Roe’s complaint against him.

Following its investigation, FGCU determined Doe was responsible for

sexual harassment in the form of non-consensual sexual activity. Doe’s request

for reconsideration was denied. He was issued an administrative counseling

referral, received an 8-month disciplinary probation, and a 4-month

suspension from school. Doe filed an appeal, then exhausted his

administrative remedies, and sought a writ of certiorari in the Twentieth

Judicial Circuit, Lee County, which was denied.

Doe brings three counts: (1) violation of procedural due process rights

under 42 U.S.C. § 1983; (2) violation of Title IX under 20 U.S.C. § 1681; and (3)

breach of contract. He seeks lost future earnings and earnings capacity,

damage from the delay in pursuing his college degree, and other compensatory

damages.

LEGAL STANDARD

Generally, “every pleading . . . must name all the parties.” Fed. R. Civ.

P. 10(a). The rule does not merely further administrative convenience–“[i]t

protects the public’s legitimate interest in knowing all of the facts involved,

including the identities of the parties.” Plaintiff B v. Francis, 631 F.3d 1310,

1315 (11th Cir. 2011). In “the exceptional case[,] . . . a plaintiff may proceed

under a fictitious name.” Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992).

The exception is narrow; parties may use “fictitious name[s]” only in

“exceptional case[s].” Id. “The ultimate test for permitting a plaintiff to

proceed anonymously is whether the plaintiff has a substantial privacy right

which outweighs the customary and constitutionally-embedded presumption

of openness in judicial proceedings.” Id.

Performing this balancing test requires the Court to consider the

totality-of-the-circumstances, the first step of which “is to consider whether the

party seeking anonymity (1) is challenging government activity; (2) would be

compelled, absent anonymity, to disclose information of the utmost intimacy;

or (3) would be compelled, absent anonymity, to admit an intent to engage in

illegal conduct and thus risk criminal prosecution.” Doe v. Neverson, 820 F.

App’x 984, 986 (11th Cir. 2020). All circumstances are to be considered, which,

in other cases, have included: “whether the plaintiffs were minors, whether

they were threatened with violence or physical harm by proceeding in their

own names, and whether their anonymity posed a unique threat of

fundamental unfairness to the defendant.” Plaintiff B, 631 F.3d at 1316. “It

is within a court’s discretion to allow a plaintiff to proceed anonymously.” Doe

v. Shakur, 164 F.R.D. 359, 360 (S.D.N.Y. 1996).

DISCUSSION

Doe argues that all first-step factors favor him. Doe alleges the first

factor falls easily in his favor because FGCU is a public university that receives

federal funding. Yet it isn’t necessarily that cut and dry. As the Eleventh

Circuit has explained, “no published opinion that we are aware of has ever

permitted a plaintiff to proceed anonymously merely because the complaint

challenged government activity.” Roe v. Aware Woman Ctr. for Choice, Inc.,

253 F.3d 678, 686 (11th Cir. 2001). “While the college is alleged to be a public

college and political subdivision, it is not the ‘government’ in the traditional

sense.” Doe v. Valencia Coll., No. 6:15-cv-1800-ORL-40DAB, 2015 WL

13739325, at *2 (M.D. Fla. Nov. 2, 2015) (declining to permit a student to

proceed anonymously in an action challenging disciplinary proceedings in

which the student was sanctioned for sexual harassment and other

misconduct). “While suing a private defendant gives more reason not to grant

the plaintiffs’ request for anonymity, the Eleventh Circuit has never held that

there is more reason to grant a plaintiff’s anonymity if the plaintiff is suing the

government.” Doe #1-#14 v. Austin, No. 3:21-CV-1211-AW-HTC, 2021 WL

10395929, at *1 (N.D. Fla. Dec. 1, 2021) (internal quotations omitted); see also

Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981) (“[I]n only a very few cases

challenging governmental activity can anonymity be justified.”). Thus, this

factor does not weigh in favor of granting Doe’s request.

The second factor—whether the plaintiff would be compelled to disclose

information of “the utmost intimacy”—“has historically yielded a confined

application.” Doe v. Austin, No. 3:22-cv-121-JLB-SPF, 2022 WL 2116797, at

*3 (M.D. Fla. June 10, 2022). Doe alleges that compelling him to reveal his

identity would subject him to undue harm, both personally and financially, for

an act that he denies making and is under review here. Absent anonymity,

Doe claims he will be required to divulge to the public information regarding

sexual activity between himself and Roe, allegations regarding STDs, text

messages where Doe describes drinking alcohol and taking drugs (both of

which may have been illegal at the time), and FGCU’s determination that he

committed sexual harassment. (Doc. 21 at 5). Doe says revealing his identity

will cost him for years to come, as records of this case will come up in searches

by potential employers. (Doc. 21 at 5).

Doe’s request is not run-of-the-mill. Requests to proceed anonymously

are often made by sexual assault victims. And historically, courts have not

allowed sexual assault victims to proceed anonymously, even if the disclosure

would cause personal embarrassment. See Plaintiff B, 631 F.3d at 1316. In

other contexts, many courts within the Eleventh Circuit have declined to grant

anonymity to plaintiffs facing the prospect of exposure as an alcoholic, a sex

offender, a transgender individual, and even an adult victim of rape. See

Frank, 951 F.2d at 324 (alcoholic); Doe v. Samford Univ., No. 2:21-CV-00871-

ACA, 2021 WL 3403517, at *2 (N.D. Ala. July 30, 2021) (sex offender); Doe v.

Reyes 1, Inc., No. 5:19-CV-320-TES, 2019 WL 12493582, at *1 (M.D. Ga. Aug.

19, 2019) (transgender individual); Doe v. Sheely, 781 F. App’x 972, 974 (11th

Cir. 2019) (rape victim). In these cases, even the risk of social stigma attached

to the disclosure was not found to be enough to overcome the presumption of

openness in court proceedings.

Yet given the discretionary standard, it is not surprising that there are

similar cases granting anonymity with sexually exploited minor children,

personal religious beliefs, and homosexuality. See, e.g., Plaintiff B, 631 F.3d

at 1315 (minor children); Roe, 253 F.3d at 685 (abortion); Stegall, 653 F.2d at

186 (prayer in public schools); Doe v. United Servs. Life Ins. Co., 123 F.R.D.

437, 438-39 (S.D.N.Y. 1988) (homosexuality). And sometimes a plaintiff may

face so great a “danger of physical harm” that the plaintiff’s interest in access

to the judicial system outweighs the public’s interest in judicial openness.

Frank, 951 F.2d at 324.

Here, none of the concerns Doe raises are so highly sensitive as to

outweigh “the public’s legitimate interest in knowing all of the facts involved,

including the identities of the parties.” Plaintiff B, 631 F.3d at 1315. Divulging

sexual activity between himself and Roe is not a basis for anonymity. Doe

presents the Court with no precedent allowing anonymity where consensual

sex is involved and even disclosure of sexual misconduct, when no other factors

present such as minors involved or threat of violence or physical harm, qualify

as information of the “utmost intimacy.” See Plaintiff B, 631 F.3d at 1316.

As for the STD allegations, courts routinely consider cases—medical

malpractice cases, for example—involving medical histories of plaintiffs who

sued in their own names. In general, “the fact that a case involves a medical

issue is not a sufficient reason for allowing the use of a fictitious name, even

though many people are understandably secretive about their medical

problems.” Benjamin K. v. United Healthcare Servs., 2021 WL 2916711 (M.D.

Fla. Jan. 15, 2021) (quoting Doe v. Blue Cross & Blue Shield United of Wis.,

112 F.3d 869, 872 (7th Cir. 1997)); see also Roe v. Aware Woman Ctr. for Choice,

Inc., 253 F.3d 678, 690 (11th Cir. 2001) (“[A] medical issue which, although

sensitive and private, ‘is not such a badge of infamy or humiliation in the

modern world that its presence should be an automatic ground for concealing

the identify of a party to a federal suit.’”) (quoting Doe, 112 F.3d at 872).

Besides, based on the documents Doe provided, the information regarding

sexually transmitted infections show that Roe was potentially infected, not

Doe. See Investigative Report (Doc. 1-2 at 3). And to the extent there are

sensitive medical records or information that becomes relevant, privacy

interests can be addressed through a protective order. See, e.g., Doe v. Austin,

2021 WL 10395929, at *2 (N.D. Fla. Dec. 1, 2021) (denying motion for leave to

proceed anonymously finding that “it is not enough to assert that the plaintiffs’

medical histories might be at issue” and “to the extent there are sensitive

medical records or information that becomes relevant, privacy interests can be

addressed through a protective order”).

At bottom, weighing the risk that requiring Doe to proceed with his suit

without anonymity would require him to disclose “information of the utmost

intimacy” against the presumption of openness, anonymity must be denied.

This just is not one of those “exceptional cases” that warrant such treatment.

As for the final factor, Doe failed to identify a legitimate risk of criminal

prosecution. Doe alleges the anonymity is needed because Doe and Roe admit

to underage drinking and taking drugs, and because FGCU determined Doe

committed sexual harassment. But Doe has not been subjected to any criminal

investigation or proceeding related to Roe’s accusations, nor is there any

indication he will be. The sexual encounter and discussions about alcohol and

drug use occurred nearly four years ago. Doe speculates there is a risk of

prosecution for unlawful possession of alcoholic beverages and possession of

marijuana, but both are misdemeanors in Florida with one- and two-year

statute of limitations. Fla. Stat. § 775.15(c), (d). Thus, criminal prosecution

for Doe’s drug and alcohol use in 2019 is not possible now. Doe also does not

allege that criminal charges are forthcoming.

One final issue. Doe requests that Roe be allowed to proceed

anonymously due to the sensitive nature of the information that will be

disclosed in this case. (Doc. 21 at 6). FGCU does not take a position on this

request. The Court finds it unnecessary to decide that issue now. To the extent

it comes up in a specific context during the proceedings, the Court can address

it then.

Accordingly, it is ORDERED:

Plaintiff's Motion to Proceed Anonymously (Doc. 21) is DENIED.

DONE and ORDERED in Fort Myers, Florida this September 8, 2023.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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