Unpublished Disposition, 927 F.2d 608 (9th Cir. 1989)

MEMORANDUM^**

John Doe appeals pro se the district court's order striking Doe's complaint for failure to comply with Rule 11 of the Federal Rules of Civil Procedure and dismissing his 42 U.S.C. § 1983 action. The district court's order appears to be based on the plaintiff-appellant's use of the pseudonym "John Doe of May 31, 1989" in his complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate and remand.

* Background

In his complaint, Doe contends that, after being stopped by officers of the Menlo Park Police Department because his car matched the description of a hit and run vehicle, he was illegally detained without probable cause or reasonable suspicion by the officers because he refused to identify himself. Doe also alleges that the police officers illegally searched his car, briefcase, and other belongings and eventually illegally placed him in custody for psychiatric evaluation pursuant to California Welfare and Institutions Code section 5150. Doe further contends that after he was released from evaluation, the police refused to release his automobile and other belongings based on Doe's continued refusal to identify himself.

II

Merits

Doe contends that the district court erred in not allowing him to prosecute his claim under pseudonym because (1) of his fear of police reprisals if his identity is revealed, (2) his action involves government conduct which challenged his mental competency, and (3) disclosure of his identity would require him to forfeit the very privacy rights which his suit seeks to vindicate.

The general rule is that "the identity of the parties in an action, civil or criminal, should not be concealed." United States v. Doe, 655 F.2d 920, 922 n. 1 (9th Cir. 1980). This rule is based on the public's legitimate interest in open court proceedings and serves to apprise defendants of their accuser's identity. See, e.g., Richmond Newspaper, Inc. v. Virginia, 448 U.S. 555, 580 n. 17 (noting that "historically both civil and criminal trials have been presumptively open"). Moreover, the Federal Rules of Civil Procedure do not explicitly permit suits under fictitious names. Federal Rule of Civil Procedure 11 requires that " [a] party who is not represented shall sign the party's pleading, motion, or other papers.... If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant." Fed. R. Civ. P. 11; see also Fed. R. Civ. P. 10(a) (requiring complaint to "include the names of all the parties").

We have recognized, however, that in "unusual cases" it may be permissible for a party to prosecute its claim under a pseudonym. See United States v. Doe, 655 F.2d at 922 & n. 1 (noting the Supreme Court's implicit recognition of such suits, the court allowed the use of pseudonyms to protect the appellant--who had been a government witness and was serving a long prison term--from the "risk of serious bodily harm"); accord National Commodity & Barter Ass'n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989); Coe v. United States Dist. Court for the Dist. of Colorado, 676 F.2d 411, 413 (10th Cir. 1982); Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981); Southern Methodist Univ. Ass'n v. Wynne & Jaffe, 599 F.2d 707, 712-13 (5th Cir. 1979); Doe v. Colautti, 592 F.2d 704, 705 (3rd Cir. 1979); see also Doe v. Deschamp, 64 F.R.D. 652, 653 (D. Mont. 1974) (three-judge court) (listing cases brought under pseudonym).

Doe's contention that he will be subject to police reprisals if his true identity is revealed is without any factual basis and is insufficient to warrant a cloak of anonymity.

Doe contends that disclosure of his identity would subject him to social embarrassment and stigma stemming from his detention by the police for psychiatric evaluation. In United States v. Doe, we that noted that " [w]here it is necessary ... to protect a person from harassment, injury, ridicule or personal embarrassment, courts have permitted the use of pseudonyms." 655 F.2d at 922 n. 1. Other courts have specifically recognized that the use of pseudonyms may be appropriate in cases involving mental competency. See Doe v. Gallinot, 486 F. Supp. 983 (C.D. Cal. 1979) (plaintiff who challenged California's temporary mental commitment statute--including Welfare and Institutions Code section 5150--was allowed to proceed under pseudonym), aff'd, 657 F.2d 1017 (9th Cir. 1981); Doe v. Colautti, 592 F.2d at 705; Doe v. Harris, 495 F. Supp. 1161 (S.D.N.Y. 1980); Doe v. New York Univ., 442 F. Supp. 522 (S.D.N.Y. 1978); see also Doe v. Rostker, 89 F.R.D. 158, 161 & n. 6 (N.D. Cal. 1981) (cases involving "mental illness" are a common situation in which plaintiffs are allowed to proceed under pseudonym). Because Doe's case involves his detention for psychiatric evaluation, Doe may have a legitimate interest in protecting his privacy by proceeding under a pseudonym. See, e.g., Doe v. Gallinot, 657 F.2d at 1017.

Doe alleges that his confrontation with the Menlo Park police officers and his subsequent detention for psychiatric evaluation was caused by his refusal to identify himself. Doe also contends that the refusal of the Menlo Park Police Department to return his automobile and other belongings was based on his continued refusal to identify himself. In United States v. Doe, Judge Sneed in his dissent noted that " [t]here is some logic in cooperating to provide anonymity when publicity would inflict the very injury the litigant seeks to avoid by resort to the courts." 655 F.2d at 930 n. 1 (Sneed, J., dissenting). Given the circumstances of this case, providing Doe with anonymity may be compatible with protecting Doe's privacy interests.

Accordingly, we vacate the district court's order striking Doe's complaint and dismissing the action, and remand for further proceedings to allow a determination as to whether a suit under pseudonym is appropriate in this case.

VACATED and REMANDED.