The Volokh Conspiracy

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Free Speech

A Rare Order Calling for Defendant-Side Pseudonymity,

and a much more common rejection of plaintiff-side pseudonymity.


From today's order by Judge Philip P. Simon (N.D. Ind.) in Bartole v. Doe:

Marcus T. Bartole, a prisoner without a lawyer, filed a complaint but didn't pay the filing fee or file an in forma pauperis motion…. As required by 28 U.S.C. § 1915A, I must screen the complaint and dismiss it if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief….

In a nutshell, Bartole's complaint alleges two private individuals, whom I will refer to for the time being as Jane Doe #1 and Jane Doe #2, conspired to violate his civil rights under 42 U.S.C. §§ 1985(3), 1986 & 28 U.S.C. 1343. {He also claims these individuals subjected him to intentional infliction of emotional distress, invaded his privacy, defamed, and slandered him.} Bartole starts by telling me he is part of a "suspect class" as a registered "sexually violent offender" and perhaps generally as a male. He alleges the two Jane Does began using social media and other electronic means to track his location and activities, and in June of 2021, they began broadcasting their "class based animus belief of [Bartole] that as a 'man' and as a 'sexually violent predator' (as [he] is labeled via his registration)," Bartole was dangerous, evil, and a "women hater and rapist."They allegedly did this because they didn't believe he should have been released into the community. He claims they continued to conspire throughout October and November of 2021, and eventually made up "false allegations of criminal and sexual misconduct" against him.

Without repeating Bartole's very detailed account of the events that allegedly transpired, here is a summary: on November 11, 2021, Jane Doe # 1 engaged him in conversation, invited herself to his house for a drink, and essentially seduced him—all part of their conspiracy against him. After having consensual sex in the shower with Bartole, Jane Doe #1 became sick and wasn't able to perform the next part of the conspiracy which would have involved hitting herself to make it look like she had been beaten by Bartole. Instead, Bartole escorted her to the bus station and sent her home.

The next day, Jane Doe #1 told Jane Doe #2 what had happened, and they agreed to try and finish their conspiracy. Bartole and Jane Doe #1 exchanged text messages and eventually met up at Bartole's apartment again later that night. They began drinking and agreed to again have consensual sex, but Bartole started to feel sick, so he laid down in the shower. Jane Doe #1 also got sick and vomited in the shower. Jane Doe #1 then called 911 and falsely accused Bartole of forcing her to have oral sex, slapping her, and strangling her. Bartole claims Jane Doe #1 and Jane Doe #2 have continued to spread false information about him and the incident that occurred via social media.

Multiple charges were brought against Bartole in state court as a result of these allegations—specifically, he was charged with felony rape, two counts of failing to register as a sex offender, sexual battery, strangulation, criminal confinement, and battery. See State of Indiana v. Bartole, cause no. 79D01-2111-F3-000033 (filed Nov. 17, 2021), available at (last visited Oct. 30, 2023). The  charges are described in the probable cause affidavit and information, both filed on November 17, 2021.

Importantly, a notice of exclusion of confidential information from public access was filed that same day—in accordance with the Indiana Rules of Court titled "Rules on Access to Court Records"—based on a state no contact/protective order which has kept the alleged victim's name confidential during the pendency of the criminal proceedings. The criminal case remains pending, with a jury trial set for January 29, 2024.

Bartole has sued Jane Doe #1 and Jane Doe #2 for monetary damages and injunctive relief. He states he is "not at this time alleging any conspiracy theory with the … police department nor is the inclusion of any [officers'] initials nor actions inferring at all they are being treated as defendants; their inclusion at this time is simply for factual integrity." He also makes it clear that he is not challenging the "probable cause affidavit nor the magistrate court's approving it."

The problem for Bartole is that these admissions preclude his conspiracy claims. [Details of the problems with Bartole's claims omitted. -EV] … That said, albeit with some degree of reluctance, I will allow him to file an amended complaint because "[t]he usual standard in civil cases is to allow defective pleadings to be corrected, especially in early stages, at least where amendment would not be futile."

But if Bartole does choose to file an amended complaint, it will not remain under seal, and he may not proceed under a fictitious name. The Seventh Circuit has made it clear that "very few categories of documents are kept confidential once their bearing on the merits of a suit has been revealed." That is because "the public at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding." … "What happens in the halls of government is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records." …

Similarly, Federal Rule of Civil Procedure 17 requires that civil actions be prosecuted in the name of the real party in interest. The use of fictitious names in federal litigation is disfavored because "[i]dentifying the parties to the proceeding is an important dimension of publicness[,]" and "people have a right to know who is using their courts." The Seventh Circuit has repeatedly argued against allowing pseudonyms because "[j]udicial proceedings are supposed to be open … in order to enable the proceedings to be monitored by the public. The concealment of a party's name impedes public access to the facts of the case, which include the parties' identity." "To proceed anonymously, a party must demonstrate 'exceptional circumstances.'" Those "narrow circumstances" can include instances where the party is in danger of being retaliated against or is a minor, a rape victim, or otherwise "particularly vulnerable." Ultimately, "[a] party seeking to proceed by pseudonym must show that the harm to the party … exceeds the likely harm from concealment."

Bartole claims he has a "protected interest in the sealing off and not creating additional public exposure to these allegations." He claims he deserves this protection because he is the victim of a sexual assault. He believes that public access will create permanent records resulting in "mass merchandising techniques designed to generate excitement," "shame mongering," and irreparable harm of the public's view of him.  He claims that bloggers and journalists have already made him "famous" due to the criminal charges against him and that they are using his fame for their own financial gain.  He states he has been subjected to unspecified threats of violence due to the defendants' allegations, which have already been made public. He requests that his entire lawsuit be filed under seal. With regard to proceeding using a pseudonym instead of his own name, he claims that the "litigation involves matters that are highly sensitive and of a personal nature" and that being "falsely linked to instances of alleged sexual misconduct" would cause him possible physical and reputational harm. Specifically, he "would be instantly identifiable through internet searches and would carry the stigma of having their sexual activities aired publicly, causing substantial, irreparable harm to his future educational opportunities, job searches, and family and personal relationships."

If I am to believe the allegations in Bartole's complaint, which I must at this stage, he is not a victim of sexual assault—rather, he engaged in consensual sex and was the target of a conspiracy. There is a critical difference between the two, as the former may deserve protection under current Seventh Circuit case law, while the latter does not. Compare Dettelbach (rape victim may be entitled to proceed anonymously), with Deerfield (affirming district court's dismissal of plaintiff's complaint and denial of his motion to proceed anonymously because his arguments regarding "potential embarrassment [were] insufficient to justify anonymity in a suit which Doe voluntarily brought"), and City of Chicago ("sexual harassment cases are not brought anonymously even when the facts are gamier than they are here"), and Coe v. Cnty. of Cook ("embarrassment felt by a person who engages in immoral or irresponsible conduct is not a compelling basis for a waiver of the general rule that parties to federal litigation must litigate under their real names").

To the extent Bartole is worried his new case may cause him physical or reputational harm, I don't find that argument compelling. He admits the defendants' allegations that triggered his criminal case are already available to the public both via his state court record and via an internet search related to those charges. It's unclear why these new allegations—which essentially dispute those criminal charges and portray himself as a victim of a conspiracy rather than a sexual assailant—would further harm him as, if believed, they would seemingly exonerate him.

In any event, I find that the possibility of physical and/or reputational harm doesn't constitute the exceptional circumstances necessary to seal this case or allow Bartole to proceed anonymously on claims he voluntarily brought. Moreover, any such speculative harms are outweighed by the harm of concealing this case and Bartole's name from the public.

On the other hand, there is reason to proceed with caution regarding the identity of Jane Doe #1. As noted above, there is a pending state criminal case charging Bartole with, among other things, rape and sexual battery of Jane Doe #1. I take no position on the veracity of those charges, but, at this juncture, I will respect the state court filing excluding Jane Doe #1's name from public access in court records due to a state no contact/protective order. If he chooses to file an amended complaint here, her name must be concealed—at least for the time being. See e.g., Dettelbach ("narrow circumstances" where anonymity is justified include cases involving a rape victim or an individual who is otherwise "particularly vulnerable").

Note that this is a different sort of question that whether defendants who are unknown to the plaintiff may proceed pseudonymously while they are trying to get the case dismissed on purely legal grounds (for instance, if someone sues an unknown defendant for libel and then tries to use subpoenas to service providers to determine the defendant's identity).