UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN Southern Division Detroit

Transcription

1 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 1 of 12 Pg ID 1112 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN Southern Division Detroit ) K.S., ) Case No. 2:14-cv DML-MJH ) District Judge David M. Lawson Plaintiff, ) Mag. Judge Michael J. Hluchaniuk ) v. ) ) DETROIT PUBLIC SCHOOLS et al, ) ) Defendants. ) ) MOTION TO: (1) COMPEL PLAINTIFF TO PROCEED WITHOUT USING A PSEUDONYM; and (2) RE-CAPTION THE CASE USING PLAINTIFF S LEGAL NAME Defendant, Charles Pugh, for the reasons set forth in the accompanying Brief in Support, respectfully requests that this Court compel Plaintiff to proceed without using a pseudonym, enter an order re-captioning this matter using Plaintiff s legal name, and grant any other relief necessary to effectuate these requests, including unsealing the Affidavit of Counsel previously filed under seal (Docket # 6). Counsel sought concurrence via from Plaintiff s counsel on January 26, 2015, and conducted a telephone conference with Plaintiff s counsel on February 9, Despite these efforts, Counsel was unable to obtain concurrence in the relief sought. 1

2 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 2 of 12 Pg ID 1113 Respectfully submitted: February 16, 2015 /s/ Marc A. Deldin Deldin Law, PLLC 48 S. Main, Suite 3 Mount Clemens, MI (586) marc@deldinlaw.com P71041 Attorney for Charles Pugh only 2

3 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 3 of 12 Pg ID 1114 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN Southern Division Detroit ) K.S., ) Case No. 2:14-cv DML-MJH ) District Judge Paul D. Borman Plaintiff, ) Mag. Judge Michael J. Hluchaniuk ) v. ) ) DETROIT PUBLIC SCHOOLS et al, ) ) Defendants. ) ) BRIEF IN SUPPORT OF CHARLES PUGH S MOTION TO: (1) COMPEL PLAINTIFF TO PROCEED WITHOUT USING A PSEUDONYM; AND (2) RE-CAPTION THE CASE USING PLAINTIFF S LEGAL NAME 3

4 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 4 of 12 Pg ID 1115 ISSUES PRESENTED I. Should the Court continue to excuse K.S. from identifying himself as a party, when K.S. aggressively pursued selling his personal videos to Mr. Pugh, and proceeding anonymously is the exception to the rule that a party must identify himself? II. Does K.S. s purported privacy interests substantially outweigh the presumption of open judicial proceedings, when K.S. is challenging governmental activity, seeking damages from a public entity, aggressively sought to sell personal videos of himself to Mr. Pugh, and was not a minor during the relevant time period? Charles Pugh states that the answer to the above is No. 4

5 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 5 of 12 Pg ID 1116 MOST CONTROLLING AUTHORITY Fed. R. Civ. P. 10(a) Dow v. Porter, 370 F.3d 558 (6th Cir. 2004) MCL

6 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 6 of 12 Pg ID 1117 I. STATEMENT OF RELEVANT FACTS a. Initial Proceedings and the Ex Parte Relief On June 5, 2014, Plaintiff initiated this action alleging damages against Mr. Pugh and Detroit Public Schools for, among other things, violations of 1983 and the Elliot-Larsen Civil Rights Act. (Docket # 1, Complaint). The Complaint does not identify Plaintiff by his legal name. Rather it uses the pseudonym of K.S., which are the initials for Plaintiff s first and last name, respectively. On that same day, without serving any of the parties and providing them with an opportunity to respond, Plaintiff filed a Motion for Protective Order and to File under Seal Affidavit of Counsel Identifying Plaintiff. (Docket # 2). The Motion falsesly states that Plaintiff was a minor at the time of the alleged injuries and that the underlying facts cause great humiliation and embarrassment to Plaintiff. On June 5, 2015, this Court granted the Motion. (Docket # 5). This order has allowed the Plaintiff to proceed using a pseudonym, despite seeking damages from a public entity. Plaintiff s counsel then filed the Affidavit of Counsel (Docket # 6) under seal. 6

7 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 7 of 12 Pg ID 1118 b. Plaintiff s Humiliation and Embarrassment is the Result of his own Conduct and also that of his Mother. There is no dispute that Mr. Pugh is a gay man and paid money for a selfproduced video of Plaintiff masturbating. There is also no dispute Plaintiff turned 18 years of age on February 9, 2013, months before any of the alleged conduct occurred. While Plaintiff portrays himself as an unknowing victim, his texts to Mr. Pugh paint a different picture. Plaintiff actively solicited money from Mr. Pugh in exchange for making sexual oriented videos: Date Plaintiff s Text Message to Mr. Pugh 5/31/13 So if i fuck a girl and record it, then let you see it i can get 100 6/1/13 I really need that money 6/2/2013 I need [video] games nd money lol 6/2/2013 Lol i want an xbox 360 wit two controllers, 2k13, army of 2 devils cartel and brink 6/2/13 Im making the vid when i get home im serious as fuck today 6/2/13 So what do i do to get the money and games 6/2/13 My vid was worth the game.... (Exhibit 1, Plaintiff s Text Message Log) Plaintiff s mother brought publicity to this situation by contacting the news media. (Exhibit 2, p. 3). This has caused great embarrassment for Plaintiff. As 7

8 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 8 of 12 Pg ID 1119 Plaintiff s psychological expert confirms, Plaintiff is angry at himself for some of the choices [that] he made. (Exhibit 2, p. 3). II. ARGUMENT Plaintiff s decision to sell a video of himself masturbating and his mother s subsequent decision to alert the news media to this fact, does not rise to such a level as to permit Plaintiff to litigate this case in secret. He was 18 years old at the time and, as he admits, his embarrassment and humiliation is the result of his own choices and the decision his mother made to call the media. Law Fed. R. Civ. P. 10(a) requires a complaint to state the names of the parties to that case. A court may excuse a party from identifying himself in very limited and narrowly circumscribed situations. See Dow v. Porter, 370 F.3d 558, 560 (6th Cir. 2004). This very Court has held that privacy in one s identity in a public forum such as a federal court is the exception, not the rule. Does v. Shalushi et al, 2010 WL , (Case No , E.D.M. D.J. David M. Lawson, Opinion and Order dated July 30, 2010). A court has supervisory power over its own records and files. Nixon v. Warner Commc ns, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). This includes entering protective orders to seal certain documents. See Fed. R. Civ. 8

9 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 9 of 12 Pg ID 1120 P. 26(c). The right to seal records, however, is subject to the firmly established tradition that court records should be accessible to the public. Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165 (6th Cir. 1983). Only the most compelling reasons can justify non-disclosure of judicial records. In re Knowxville News-Sentinel Co., Inc., 723 F.2d 470, 476 (6th Cir. 1983). The Sixth Circuit holds that a party s right to proceed anonymously requires the district court to weigh certain factors and determine whether a plaintiff s privacy interests substantially outweigh the presumption of open judicial proceedings. Doe v. Porter, 370 F.3d at 560. These factors include: (1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information of the utmost intimacy ; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children. Id. quoting Doe vs. Stegall, 653 F.2d 180, (6th Cir. 1981). Analysis Plaintiff s situation does not satisfy a single factor in the 4-factor Porter/Stegall test. His privacy interests do not outweigh the presumption of open judicial proceedings, especially when his own actions, and those of his mother, are the aggravating factors of his embarrassment and humiliation. 9

10 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 10 of 12 Pg ID 1121 Plaintiff s lawsuit challenges governmental activity. He is seeking civil rights damages from a public school district as well as the former President of the Detroit City Council. This is not a case between 2 private litigants, as any judgment or settlement would be funded with public tax dollars. This court should not allow Plaintiff to challenge purported governmental activity in secret. The prosecution of this lawsuit will not compel Plaintiff to disclose information of the utmost intimacy. As an adult, Plaintiff made the now regrettable decision to sell a self-made pornographic film to a gay male. His mother has already alerted the media to these facts, and Plaintiff has already filed his embarrassing text messages in the City of Detroit s bankruptcy case. The third factor, whether the lawsuit compels Plaintiff to disclose an intention to violate the law, is not applicable in this case. Finally, Plaintiff was not a child when these events occurred. He turned 18 on February 9, In Michigan, Plaintiff is deemed to be an adult of legal age when he turned 18 years old. MCL As a grown man, Plaintiff needed money and sought to sell a video of himself to another grown man. He was not a child and he is responsible for his actions. The public interest in open judicial proceedings outweighs Plaintiff s interest in privacy. 10

11 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 11 of 12 Pg ID 1122 There is no legal basis to permit Plaintiff to proceed anonymously or under a pseudonym. His embarrassment was caused by his own decisions and those of his mother. These are decisions that he made when he was a grown adult. III. CONCLUSION For the reasons set forth above, Mr. Pugh, respectfully requests that this Court compel Plaintiff to proceed without using a pseudonym, enter an order recaptioning this matter using Plaintiff s legal name, and granting any other relief necessary to effectuate this request, including unsealing the Affidavit of Counsel previously filed under seal (Docket # 6). Respectfully submitted: February 16, 2015 /s/ Marc A. Deldin Deldin Law, PLLC 48 S. Main, Suite 3 Mount Clemens, MI (586) marc@deldinlaw.com P71041 Attorney for Charles Pugh only 11

12 2:14-cv DML-MJH Doc # 34 Filed 02/16/15 Pg 12 of 12 Pg ID 1123 CERTIFICATE OF SERVICE I hereby certify that on February 16, 2015, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to all registered users that have appeared in this action. February 16, 2015 /s/ Marc A. Deldin Deldin Law, PLLC 48 S. Main, Suite 3 Mount Clemens, MI (586) marc@deldinlaw.com P71041 Attorney for Charles Pugh only 12

13 2:14-cv DML-MJH Doc # Filed 02/09/15 02/16/15 Pg 74 1 of 693 Pg Pg ID ID Exhibit 1

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19 2:14-cv DML-MJH Doc # 34-2 Filed 02/16/15 Pg 1 of 8 Pg ID 1130 Exhibit 2, p. 1

20 2:14-cv DML-MJH Doc # 34-2 Filed 02/16/15 Pg 2 of 8 Pg ID 1131 Exhibit 2, p. 2

21 2:14-cv DML-MJH Doc # 34-2 Filed 02/16/15 Pg 3 of 8 Pg ID 1132 Exhibit 2, p. 3

22 2:14-cv DML-MJH Doc # 34-2 Filed 02/16/15 Pg 4 of 8 Pg ID 1133 Exhibit 2, p. 4

23 2:14-cv DML-MJH Doc # 34-2 Filed 02/16/15 Pg 5 of 8 Pg ID 1134 Exhibit 2, p. 5

24 2:14-cv DML-MJH Doc # 34-2 Filed 02/16/15 Pg 6 of 8 Pg ID 1135 Exhibit 2, p. 6

25 2:14-cv DML-MJH Doc # 34-2 Filed 02/16/15 Pg 7 of 8 Pg ID 1136 Exhibit 2, p. 7

26 2:14-cv DML-MJH Doc # 34-2 Filed 02/16/15 Pg 8 of 8 Pg ID 1137 Exhibit 2, p. 8