Plaintiffs cannot sue Sean Combs anonymously

These plaintiffs sued Sean "Puffy" Combs, the famous hip-hop artist, claiming various acts of sexual abuse dating to 1991-1997. These claims were facilitated by a recent law in New York that reopened the statutes of limitation for otherwise stale sex abuse claims. But this appeal does not determine whether Combs is liable. Rather, it addresses whether plaintiffs may litigate their claims under pseudonyms, i.e., Jane Doe. They cannot.

The case is Doe v. Combs, a summary order issued on March 17. The district court said the plaintiffs have to litigate these cases under their real names, not Jane Doe aliases. The Court of Appeals (Park, Nardini and Kahn) affirms. The federal rules assume that plaintiffs must use their real names, but there are exceptions for John Doe pseudonyms if the plaintiffs can meet certain criterion, including whether the cases involve highly sensitive subject matter, whether identifying themselves poses a risk of retaliation to that party or to innocent non-parties, whether the defendant will suffer any prejudice from anonymity, etc. The Court of Appeals articulates a 10-part test, making this inquiry unpredictable.

While plaintiffs raise claims involving a highly sensitive and personal nature, they cannot prove any risk of harm in using their real names, such as possible retaliation, and they cannot show any mental harm if they cannot proceed as Jane Does. Instead, they assert threats of retaliation made to other litigants, but not themselves, and while one plaintiff said that Combs threatened her with violence when he assaulted her, that was more than three decades ago, the Court notes, and she does not identify any present threat of physical harm. Do you see how hard it is to proceed under a pseudonym?

Another reason the plaintiffs lose this appeal is that if they proceed anonymously, Combs would be highly prejudiced "because of likely asymmetries in fact-gathering." Courts have held that "concealing the name of a party could deprive a litigant and the court of the chance that a yet unknown witness would . . . upon learning of the case, know to step forward with valuable information about the events or the credibility of witnesses." The loss of such witnesses would be particularly prejudicial in this case because the events of this case took place more than 30 years ago, and the case would "be difficult to defend even with information about Plaintiffs' identities." In other words, while the defendants in this case do know who the plaintiffs are, the public does not, and the public might have evidence relevant to the case. 

Inmate wins sexual abuse appeal against correction officer

The plaintiff in this case alleges that, while he was a pre-trial detainee in the Connecticut system, a correction officer sexually assaulted him. Plaintiff sues under the Fourteenth Amendment. The trial court said that, assuming the plaintiff's allegations are true, the defendant officer cannot invoke qualified immunity, that is, avoid litigation because he did not violate clearly-established law. The officer appeals from that ruling and the Court of Appeals affirms, sending this case to trial to resolve disputed factual issues.

The case is Russell v. Scott, issued on March 19. While plaintiff says the officer grabbed his genitals under the false pretense of searching for contraband, the officer says this never happened. In order to decide this case, the Second Circuit (Bianco, Perez and Merriam) summarizes the rules guiding these cases. Since plaintiff was not yet convicted of anything and was still a pre-trial detainee, he enjoys more rights than the convicts. His case arises under the Fourteenth Amendment -- which protects pretrial detainees -- and not the Eight Amendment -- which regulates treatment of inmates who were sentenced for committing crimes.

Under the Fourteenth Amendment, the inmate cannot be punished in any manner. As this case is comparable to an excessive force claim, the Second Circuit considers when the inmate was punished without any legitimate penological reason, even if that punishment was not the cruel and unusual punishment prohibited under the Eighth Amendment. One of the leading cases in this area -- protecting the rights of pretrial detainees -- is Darnell v. Piniero, 849 F.3d 17 (2d Cir. 2017), a case I briefed 10 years ago.

The lengthy discussion in this case on how to analyze plaintiff's claim involving sexual abuse under the Fourteenth Amendment will make this the leading case on this issue. The result is that if the jury believes the plaintiff's version of events, he can win the case under the Fourteenth Amendment. The jury can find there was no reason for defendant to grab plaintiff by the genitals, invading his privacy and bodily integrity and causing pain that lasted for quite some time. 

That brings us to qualified immunity. Even if the court says that plaintiff's rights may have been violated in this case, that does not mean it was apparent that the officer was violating the Constitution. Was it clearly-established, through case law, that the officer was violating the Fourteenth Amendment? It is not enough to say that plaintiff has the right to be free from unjustified punishment. The qualified immunity inquiry requires the court to frame the issue more narrowly, taking into account the context of the case.

Not only was it clearly established at the time of this case that the Fourteenth Amendment forbids objectively unreasonable treatment of pretrial detainees, but cases have already held that sexual contact with inmates -- without any penological purpose but instead to gratify the officer's desire or to humiliate the inmate-- violates the Eighth Amendment. Cases also hold that plaintiffs suing under the Fourteenth Amendment can win the case even without showing the officer was acting to gratify himself or to humiliate the inmate. This means that, if the jury finds he grabbed plaintiff in this manner, the officer in this case was on notice that he was violating the Fourteenth Amendment. This case will thus proceed to trial to resolve the disputed issue of whether the defendant grabbed plaintiff this way.