The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
CHILD DOE 1, a Minor, by and
through PARENT DOE 1, et al.,
Plaintiff,
v.
Case No. 24-CV-00380-SEH
TULSA COUNTY, ex. rel.
JUVENILE BUREAU OF HE
TULSA COUNTY DISTRICT
COURT, et al.,
Defendants.
OPINION AND ORDER
Now before the Court are two related motions filed by the plaintiffs. First,
the plaintiffs’ request leave to file a third amended complaint pursuant to
Rule 15 of the Federal Rules of Civil Procedure. [ECF No. 109]. Defendants
Turn Key Health Clinics, LLC, Mandi Raymond, State of Oklahoma ex rel.
Office of Juvenile Affairs (“OJA”), Jeffrey Cartmell, Rachel Holt and Ben
Brown do not object to the plaintiffs’ request. [ECF No. 159]. Defendants
Board of County Commissioners of Tulsa County (“BOCC”) [ECF No. 161],
Tulsa County ex rel. the Juvenile Bureau of the Tulsa County District Court,
and Judge Kevin Gray1 (“Juvenile Bureau defendants”) [ECF No. 160] filed
objections to Plaintiffs’ request, and Plaintiffs subsequently filed a reply
[ECF No. 169]. Plaintiffs seek to file a third amended complaint to add seven
plaintiffs and four defendants to the existing case, as well as to add new
factual allegations.
Second, Plaintiffs request leave to proceed under pseudonyms. [ECF No.
170]. The Juvenile Bureau defendants, BOCC, Turn Key, and individual
defendants Raymond, Edwards, Williams, Currington, Tunley, Wilson,
Powell, Lavine, Gray and Harris object to Child Does 4–9, 12–16, 21–30 and
adult plaintiff Jane Doe 2, John Doe 1, and John Doe 2 proceeding under
pseudonym, but do not object to Child Does 1–3, 10–11 and Jane Doe 1
proceeding under pseudonym. [ECF No. 174 at 6]. Defendants argue that
Child Does 4–9, 12–16 and 21–30 should be required to proceed using initials
as required by Rule 5.2(a)(3) of the Federal Rules of Civil Procedure. [Id. at
11].
I. Background
The pseudonymously named plaintiffs are or have been incarcerated at the
Juvenile Detention Center in Tulsa, Oklahoma—a place none of them would
1 The plaintiffs initially asserted that Judge Gray had no objection to the
amendment, but he subsequently filed an objection to the plaintiffs’ motion jointly
with the Juvenile Bureau.
have been but for incarceration related to a juvenile adjudication in state
court. [ECF No. 31 at 5–8]. The plaintiffs allege that they suffered inhumane
treatment while in the JDC, including excessive room confinement, medical
neglect, physical abuse, harassment, sexual assault and rape. [Id.]. In May of
2024, the plaintiffs filed the initial Complaint. [Id.]. The current and
operative Second Amended Complaint alleges violations of the Eighth and
Fourteenth Amendments, a failure to intervene claim under 42 U.S.C.
§ 1983, breach of third-party beneficiary contract, negligence, and negligent
hiring, training, supervision, retention and maintenance. [ECF No. 31]. The
plaintiffs have also filed a request for injunctive relief and an emergency
motion for preliminary injunction to preclude witness tampering by
defendants. [ECF No. 24]. This includes a request that all plaintiffs currently
incarcerated at the JDC be released in favor of house arrest. [Id.].
II. Applicable Standards
Under Rule 15 of the Federal Rules of Civil Procedure, plaintiffs who can
neither amend as a matter of course nor obtain consent from opposing parties
must obtain leave from the Court before filing an amended complaint. Such
leave should freely be given “when justice so requires.” Fed. R. Civ. P.
15(a)(2). Whether to grant such leave is within the discretion of the trial
court, which may consider factors such as “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party, or
futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).
No federal rule or statute permits individuals to use a pseudonym, but
“there is a long tradition in the federal courts of plaintiffs bringing suit under
an alias.” Speech First, Inc. v. Shrum, 92 F.4th 947, 950 (10th Cir. 2024).
Given the lack of rule or statute, the Tenth Circuit has described pleading
under pseudonym as “an unusual procedure” allowed only when an important
privacy interest is recognized. M.M. v. Zavaras, 139 F.3d 798, 802 (10th Cir.
1998). The “cloak of anonymity” provided by a pseudonym can only be
granted by the district court when it finds exceptional circumstances justify
the request. Id. Such exceptional circumstances may arise in “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.” Femedeer v. Haun, 227 F.3d 1244,
1246 (10th Cir. 2000) (quoting Doe v. Frank, 951 F.2d 320, 324 (11th Cir.
1992)). A decision to permit a party to proceed pseudonymously is reviewed
for an abuse of discretion. Id.
III. Motion for leave to Amend
a. Undue Prejudice
Plaintiffs argue that because this litigation remains in early stages, with
no defendant having yet filed a responsive pleading and no scheduling order
having been entered, there is no prejudice to defendants if plaintiffs file a
third amended complaint. [ECF No. 109 at 3]. According to plaintiffs, the
media coverage of their lawsuit brought new information and new plaintiffs
to light that were previously unknown and could not have been discovered
earlier. [ECF No. 109 at 2]. They further argue that the changes to the
Second Amended Complaint are factually connected to previous claims, and
that claims brought by new plaintiffs “arise out of the same constitutional
violations as the current Plaintiffs and involve common questions of law and
fact.” [Id. at 4–5]. Under this logic, the amendment does not raise any new
issues but only increases the number of plaintiffs bringing related claims.
Thus, the Plaintiffs claim the filing of a third amended complaint would not
unduly prejudice the defendants.
The Juvenile Bureau defendants take issue with this characterization.
While admitting that the proposed Third Amended Complaint does contain
new plaintiffs with new claims, Defendants point out that it also adds four
new defendants and new allegations against previously named defendants.
[ECF No. 160 at 2]. Piling on new claims, plaintiffs, and defendants clearly
will cause delay, according to Juvenile Bureau defendants, and the new
factual allegations against existing defendants create undue prejudice
against them. [Id. at 2–3]. Juvenile Bureau defendants also request that
plaintiffs be required to pay “a reasonable fee” that compensates defendants
for previously filed responsive motions. [Id. at 3].
“Refusing leave to amend is generally only justified upon a showing of
undue delay, undue prejudice to the opposing party, bad faith or dilatory
motive, failure to cure deficiencies by amendments previously allowed, or
futility of amendment.” Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir.
2009) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.1993)).
“Typically, courts will find prejudice only when an amendment unfairly
affects non-movants in terms of preparing their response to the amendment.”
Id. at 1229 (cleaned up).
No answers have been filed by the defendants, and the parties do not
appear to be engaged in discovery. While any amendment now may cause
some delay, the defendants have not shown that prejudice would result from
the filing of the Third Amended Complaint. There simply have not been
sufficient facts even alleged by the defendants to overcome the directive that
district courts “freely give” leave for amendment when justice so requires it.
F.R.C.P. 15(a)(2).
b. Futility
All objecting defendants argue that the plaintiffs should not receive leave
to amend their Complaint because filing such an amendment would be futile.
Under Defendants’ logic, the Third Amended Complaint would be doomed to
dismissal, as were the other previous complaints, because the district court
cannot exert jurisdiction over unnamed parties when plaintiffs failed to
obtain the court’s permission to proceed under pseudonyms. [ECF No. 161 at
1–2; ECF No. 160 at 1]. Federal Rule of Civil Procedure 10 provides that a
complaint “must name all the parties,” and Rule 17 requires all actions to be
“prosecuted in the name of the real party in interest.” Fed. R. Civ. P. 10(a),
17(a). Rule 5.2(a) of the Federal Rules of Civil Procedure requires that the
names of individuals known to be minors be listed by initials only. There is
no process outlined in either the federal rules or in statute that would permit
a party to proceed under pseudonym.
Every version of the Complaint, including the Third Amended Complaint,
lacks even a single plaintiff proceeding under his or her own name.2 [ECF No.
170]. As of the date the objecting defendants filed their responses to the
motion for leave to amend, Plaintiffs had not petitioned the Court to proceed
with pseudonyms so no mechanism for possible “cure” of the pseudonym issue
was evident. However, contemporaneous with the filing of their reply,
2 Four separate classes of “Doe” parties are set forth: minor plaintiffs, adult
plaintiffs who allegedly suffered abuse or harm as minors while incarcerated at the
Juvenile Detention Facility, adult plaintiffs who are parents of minor plaintiffs, and
unknown defendants. To add to the potential confusion, sometimes the same
pseudonym will refer to two individuals. For example, “Jane Doe” refers to a
plaintiff in one part of the Complaint, but in other places in the Complaint “Jane
Doe” refers to a defendant. However, generally, it is possible to determine which
“Doe” is being referenced based on context.
Plaintiffs filed a motion to proceed under pseudonyms. [ECF No. 170]. The
futility arguments made by the defendants in response to the motion for
leave to amend and the plaintiffs’ motion to proceed under pseudonym have
become so interrelated that they warrant joint consideration.
The defendants argue that the issues created by proceeding under
pseudonym from the outset without leave are both jurisdictional and
incurable. The Court disagrees. Although the Tenth Circuit has held that
failure to obtain leave before proceeding under pseudonym creates a
jurisdictional defect, it has not concluded that such a defect is incurable.
Defendants’ reliance on W.N.J. v. Yocom is misplaced. In W.N.J. v. Yocom,
several unmarried residents of Utah challenged the state’s laws forbidding
fornication and sodomy by unmarried, heterosexual adults. 257 F.3d 1171,
1172 (10th Cir. 2001). The plaintiffs in that case, as in the instant case, filed
their action under pseudonym without asking for or receiving the permission
of the district court. Id. After the case was dismissed by the district court on
other grounds and while it was on appeal, a magistrate judge granted the
plaintiffs leave to proceed using pseudonyms and backdated the order to
make it effective as of the date the original case was filed. Id. The Tenth
Circuit determined that an order nunc pro tunc could not be used to cure a
jurisdictional defect “after an appeal has been filed since, as a general
matter, a district court loses jurisdiction over a case once a notice of appeal
has been filed.” Id. at 1172–73. Therefore, the district court lacked
jurisdiction to cure the defect while the case was pending appeal. Id.
In Nat’l Commodity & Barter Ass’n v. Gibbs, the Tenth Circuit held that
federal courts lack jurisdiction over unnamed parties who have not sought
permission to proceed under pseudonym:
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, 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.
Nat’l Commodity & Barter Ass’n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir.
1989) (emphasis added); see also M.A.C. v. Gildner, 853 F. App’x 207, 210
(10th Cir. 2021) (explaining that this holding from Gibbs “is still the law of
the circuit” and affirming dismissal for lack of subject-matter jurisdiction
where a plaintiff did not seek leave to proceed under pseudonym).
However, the Tenth Circuit has not plainly stated whether this
jurisdictional defect is curable. Other district court judges have noted there is
“persuasive case law [that] supports finding the defect curable.” Doe v. Weber
State Univ., No. 20-CV-00054-TC-DAO, 2021 WL 5042849, at *1 (D. Utah
Oct. 29, 2021). In Doe v. Farmington Municipal Schools, a New Mexico
district court judge observed: “Gibbs … did not directly address when a party
seeking to proceed anonymously must get permission from the district court.
In addition, what Gibbs did say suggests that such permission might properly
be obtained after the complaint is filed.” No. CV 21-103 SCY/KK, 2021 WL
139077, at *1 (D.N.M. April 13, 2021) (citing Gibbs, 886 F.2d at 1245).
Although the Tenth Circuit observed in W.N.J. v. Yocom that “[w]hen a
party wishes to file a case anonymously or under a pseudonym, it must first
petition the district court for permission to do so” the statement is dicta,
because the plaintiffs in Yocom never requested permission to proceed under
pseudonym.3 257 F.3d at 1172. A Kansas district court judge found that
resolving a jurisdictional defect caused by unapproved use of a pseudonym
was a straightforward matter:
[A] proper reading of both [Gibbs] and Yocom reaffirms the law
originally stated in [Gibbs] that a case is not commenced with
respect to unnamed parties unless and until the district court
grants permission for the parties to proceed anonymously and the
parties comply with any such conditions the court may impose,
such as disclosing their true identities under seal.
3 Other cases cited by the defendants have the same issue. In those cases, the party
seeking to proceed under pseudonym had not requested leave from the court to do
so. “True, we have in certain limited circumstances ... permitted a plaintiff to
proceed using a fictitious name. But in those circumstances—which don’t exist
here—the parties must make a request to the district court for permission to
proceed anonymously.” United States ex rel. Little v. Triumph Gear Sys., Inc., 870
F.3d 1242, 1249 (10th Cir. 2017) (cleaned up).
GEICO Gen. Ins. Co. v. M.O., No. 21-2164-DDC-ADM, 2021 WL 4476783, at
*5 (D. Kan. Sept. 30, 2021). Ultimately, compliance with its orders regarding
use of pseudonyms cured the jurisdictional defect. Id.
The Court finds this reasoning persuasive. Nothing in Tenth Circuit
jurisprudence requires wholesale dismissal without prejudice in this
circumstance. Here, Defendants concede that at least some plaintiffs are
entitled to proceed under pseudonym. Permitting Plaintiffs an opportunity to
cure the defect is logical and consistent with Tenth Circuit precedent.
Because the failure to obtain leave to appear under pseudonym is
jurisdictional but may be cured by obtaining leave from the Court, resolving
the plaintiffs’ motion for leave to proceed under pseudonym is the next step
in the Court’s analysis. If the motion to proceed under pseudonym is granted,
then any jurisdictional defect would be cured, and the filing of the Third
Amended Complaint would not be futile and should be granted.
c. Request for leave to proceed under pseudonym
The Tenth Circuit has recognized certain “exceptional circumstances”
when “the need for anonymity outweighs the presumption in favor of open
court proceedings.” Raiser v. Church of Jesus Christ of Latter-Day Saints, 182
F. App’x 810, 811 (10th Cir. 2006) (unpublished) (Femedeer, 227 F.3d 1244,
1246). These exceptional circumstances include matters involving 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.” Femedeer, 227 F.3d at 1246. However, in determining
whether to allow a plaintiff to proceed anonymously, the court also weighs
the public’s interest in access to court proceedings. Raiser, 182 F. App’x at
811.
“If a court grants permission, 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.” Yocom, 257 F.3d at 1172; but cf. Casseaopeia v.
Brown, No. 22-cv-00251, 2022 WL 1606520, at *3 (D. Utah May 20, 2022)
(noting the plaintiffs’ argument that a § 2255 defendant is limited to
addressing damages under 18 U.S.C. § 3664(l) and “[p]laintiffs’ legal names
would not assist his defense”); Lily v. Little, No. 23cv2283, 2023 WL 9007204,
at *2 (S.D. Cal. Dec. 28, 2023) (noting the only issues in an 18 U.S.C.
§ 2255(a) action are “victimhood and damages,” and plaintiff’s legal name
“has no bearing on those issues”).
The Court finds exceptional circumstances warrant the need for Plaintiffs
to proceed under pseudonym. Justification is rooted in the facts alleged in
Plaintiffs’ Complaint. The plaintiffs allege that they were abused, neglected
and mistreated while they were being held in the JDC as adjudicated
deprived or delinquent children. [ECF No. 170]. Simply revealing that the
juveniles were detained at JDC has the potential to reveal information that
might be deemed confidential under Oklahoma law. See 10A O.S. § 2-6-
102(A).
Of greater concern are the matters alleged in the Complaint, which run
the gamut from medical neglect and assault to sexual abuse and rape. The
defendants concede that the plaintiffs who pleaded rape or other physical
sexual assault while they were minors in detention are entitled to proceed
under a cloak of anonymity. [ECF No. 174 at 13]. This concession is
appropriate, as courts have repeatedly found that child sexual abuse is a
matter of a “highly sensitive and personal nature” such that it may justify
proceeding under pseudonym. See Does v. United States Olympic Comm., No.
19-CV-00737-PAB-KMT, 2019 WL 2992031, at *1 (D. Colo. July 9, 2019)
(permitting minor and adult plaintiffs alleging sexual abuse to proceed under
pseudonym); S.S. as Next Friend of L.S. v. Napolitano, No. 18-2491-CM, 2019
WL 316747, at *3 (D. Kan. Jan. 24, 2019) (allowing minor plaintiff alleging
sexual assault to proceed under pseudonym); Doe v. USD No. 237 Smith Ctr.
Sch. Dist., No. 16-cv-2801-JWL-TJJ, 2017 WL 3839416, at *11 (D. Kan. Sept.
1, 2017) (allowing minor plaintiff alleging sexual harassment to proceed
under pseudonym).
Defendants argue that juvenile plaintiffs who have not alleged a physical
sexual assault should at least be identified by initials. [ECF No. 174 at 7].
They further argue that now-adult plaintiffs who were allegedly abused
during their minority should be required to appear under their legal names
unless each can “demonstrate circumstances warranting complete
anonymity” to proceed under their legal names. [Id.] However, the Court
finds that the allegations in the Complaint make a compelling case that all
Plaintiffs should be permitted to proceed by pseudonym.
The analysis begins 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.” M.M., 139 F.3d at 800.
Simple assault or an isolated instance of medical neglect will not be an
extraordinary circumstance in every case, but each Plaintiffs’ situation must
be viewed in its context. The Court is not required to view a single instance of
alleged abuse or neglect separately and discretely from the circumstances
that surround the alleged abuse.
All the plaintiffs seeking to proceed under pseudonym are alleging abuse
or neglect while in state custody for juvenile offenses. The Complaint alleges
that the minors, while in detention, faced the threat of different types of
abuse, including grooming-type behavior engaged in by Defendants to gain
the trust and compliance of the minors. [ECF No. 109-2 at 40]. The specific
allegations of misconduct and abuse by these minors against the adults
responsible for them while in state custody are fraught with “matters of a
highly sensitive and personal nature.” Raiser, 127 F. App’x at 411. Most of
the allegations involve adults using their positions of power over minors to
control and manipulate juveniles for the benefit of the adults. Although
alleged victims of sexual assault have an even more compelling case for
proceeding under pseudonym, the totality of the circumstances that affect all
Plaintiffs may be classified as extraordinary.
The Court is persuaded that the need for anonymity of the minors (and
those who recently attained adulthood) outweighs the public interest in favor
of openness. Because Defendants must have sufficient information about the
Plaintiffs to investigate the allegations and plan their defense, the Plaintiffs
should identify themselves under seal to the Defendants and the Court.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Leave to
Proceed Under Pseudonyms [ECF No. 170] is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs shall file a notice under seal
disclosing their legal names on the record. Before filing this notice, Plaintiffs
may seek entry of an appropriate protective order governing Defendants’
access to and use of the sealed material (if any). The sealed notice or a motion
for protective order shall be filed within 14 days of this Opinion and Order. If
a motion for protective order is filed, Plaintiffs need not file the sealed notice
until 14 days after resolution of that motion. For the notice, Plaintiffs are
ordered to file a document under seal identifying each of the plaintiffs by
name.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File Third
Amended Complaint [ECF No. 109] is GRANTED.
DATED this 7th day of October, 2024.
Sara E. Hill
UNITED STATES DISTRICT JUDGE
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