From Friday’s decision in Watts v. Jones, by Seventh Circuit Judge Frank Easterbrook, joined by Chief Judge Michael Brennan and Judge Diane Sykes:
Two detectives investigating an inmate at the Wisconsin Secure Program Facility tried to speak with David Watts, another inmate, who had sent letters suggesting that he had valuable information about a murder and an attempted murder. One detective appeared at Watts’s cell. He feared that the inmate under investigation would get wind of anything he said, so he refused to talk. Watts relates that, even so, he was threatened and harassed. Though no physical harm came to him, Watts filed this suit under 42 U.S.C. § 1983 seeking damages from the detectives for exposing him to risk.
The court concluded that such a claim was unavailable, at least in the absence of physical harm, but also had this to say on the earlier attempts to litigate the case under seal and with pseudonyms:
The district court entered an order sealing the litigation in large measure, which effectively created anonymity for the litigants and any potential witnesses. A motion to continue the sealing during the appeal led to a one-judge order denying that request but requiring anonymity all around. The result is that the parties have filed public briefs but not identified the persons involved. After hearing oral argument, this court now concludes that anonymity is inappropriate given this court’s strong presumption that adult litigants must use their own names.
As far as we can see, anonymity for the defendants is utterly inappropriate. Police officers, prison guards, and many other public officials are regularly sued in their own names on account of acts said to be unlawful or even unconstitutional. At oral argument counsel for the defendants consented to the use of their names.
Counsel suggested that the district judge may have believed that identifying the defendants would have identified the plaintiff too, but any such belief is unsupported. The defendants are police officers who have dealt with hundreds if not thousands of prisoners over the years. Publication of defendants’ identities would not point to any one prisoner.
Plaintiff sought to remain anonymous out of a professed fear that he would be harmed by other inmates. Once again, however, claims based on potential harm are regularly litigated in the parties’ real names. Indeed, the table of contents in plaintiff’s brief, which runs to three pages, includes many decisions addressing the potential for retaliation against cooperating witnesses, and not even one of those decisions uses pseudonyms.
Although plaintiff contends that he is in fear, he does not contend that he has actually been harmed by any other inmate—and this even though the genesis of his suit is the assertion that, several years ago, defendants allowed other inmates to learn his status as a cooperator. When plaintiff commenced litigation based on this unrealized fear, he surrendered his entitlement to anonymity. (Contrast persons protected by the informants’ privilege, whose names are protected in criminal trials largely because they did not bring publicity on themselves by initiating litigation.) Plaintiff cannot achieve anonymity by himself making allegations that expose him to risk….
The Seventh Circuit is particular skeptical about pseudonymous litigation; I’m not sure how this case would have come out in front of other courts.
