Opinion
CIVIL NO. SA-04-CA-1186-FB.
September 6, 2005
ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, ORDER REGARDING PENDING MOTIONS AND ORDER OF DISMISSAL
Before the Court are the Report and Recommendation of the United States Magistrate Judge, along with plaintiff's written objections thereto, and pending motions. Where no party has objected to a Magistrate Judge's Memorandum and Recommendation, the Court need not conduct a de novo review of the Memorandum and Recommendation. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made."). In such cases, the Court need only review the Memorandum and Recommendation and determine whether it is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989).
On the other hand, any Memorandum and Recommendation to which objection is made requires de novo review by the Court. Such a review means that the Court will examine the entire record, and will make an independent assessment of the law. The Court need not, however, conduct a de novo review when the objections are frivolous, conclusive, or general in nature.Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
Procedural History
On or about December 28, 2004, plaintiff "Jane Doe" initiated this case by filing her original complaint seeking declaratory and injunctive relief in eight counts, each alleging a violation of 42 U.S.C. § 1983 with respect to challenged policies and procedures of the United States Air Force concerning a computer filtering software that allegedly prevented users from accessing religiously-based internet sites. Plaintiff sought to litigate the claims on behalf of herself as well as all other similarly situated United States Air Force members. Summons issued on January 6, 2005.
Docket no. 1.
On April 20, 2005, plaintiff filed a motion for leave to proceed under a fictitious name, arguing if she revealed her name, any future promotions and her military career may be jeopardized because the process for promotion in the Air Force is "anonymous and highly subjective in nature." On May 12, 2005, defendants filed a response to plaintiff's request to proceed anonymously, asserting that the "normal practice" in federal court was for parties to disclose their identities and emphasizing that plaintiff had not cited authority or provided an evidentiary basis to support the extraordinary relief she requested. On May 19, 2005, plaintiff filed an unopposed motion for additional time to consider proceeding under her actual name, in which she specifically requested sixty (60) days to consider whether to proceed under her actual name.
Docket no. 19 at 1. Plaintiff provides no specific information about the status of any current effort of plaintiff to be promoted. Nor has plaintiff explained satisfactorily how the promotion process, especially if "anonymous" as she alleges, would be affected adversely by her litigation of this case.
Docket no. 24.
Docket no. 25 at 3.
On May 31, 2005, this Court issued an Order which denied without prejudice plaintiff's motion to proceed under a fictitious name, but granted plaintiff's unopposed motion for additional time to consider proceeding under her actual name, and gave plaintiff until July 27, 2005 to file an advisory identifying herself. On July 8, 2005, named plaintiff filed a motion for reconsideration of the Court's May 31, 2005 Order requiring her to identify herself. On July 22, 2005, defendants filed their response. Although the motion for reconsideration represents, "[i]f this Court does not allow Plaintiff to proceed under a fictitious name, then Plaintiff will be forced to dismiss this constitutional complaint," on July 27, 2005, named plaintiff filed a motion for an extension of time to file a further amended complaint which included her actual name until after the Court rules on her motion for reconsideration.
Docket no. 30.
Id. at 2.
Docket no. 37.
Docket no. 39.
Docket no. 37 at 8.
Docket no. 40.
On August 17, 2005, Magistrate Judge Mathy issued a report and recommendation which, among other things, recommended that: (a) plaintiff's July 8, 2005 "motion to reconsider leave of court for plaintiff to proceed under fictitious name" and July 27, 2005 motion for an extension of time in which to file an amended complaint using plaintiff's actual name each be denied; and (b) the portion of defendants' motion to dismiss for lack of subject matter jurisdiction over the claims of an anonymous plaintiff be granted and the case be dismissed on the ground that plaintiff had not advanced sufficient justification to proceed anonymously but had not identified herself. The report noted that as of the date of the issuance of the report, the procedural posture of this case had not changed for approximately four months — plaintiff neither had identified herself by the July 27, 2005 deadline she herself had proposed in her original motion to proceed anonymously nor even unambiguously represented that she would identify herself to proceed, but rather, wished to be able to keep the case pending for an indefinite period while she continued to reflect on that choice. Plaintiff represented in her motion for reconsideration of the July 27 deadline that she would "be forced to dismiss" her complaint if required to identify herself by the government's "tactic of fear and intimidation, in requiring military personnel to disclose their true name" — an allegation similar to one raised in her original motion to proceed anonymously. But, plaintiff's "motion for an extension of time in which to file an amended complaint using plaintiff's actual name" requests still more time for plaintiff to consider whether she might "choose" to identify herself if the Court declines to reconsider. Plaintiff has already been afforded sufficient time to consider whether she will identify herself. Again, this case remains in the same procedural posture as on April 20, when plaintiff filed her first motion to proceed anonymously — plaintiff has not identified herself and has not unambiguously stated that she will do so if required to prosecute the case. It is time for plaintiff to make her decision.
Docket no. 37.
Docket no. 40.
Docket no. 42 at 12-13.
Docket no. 37 at 9.
Contrary to plaintiff's position, as discussed, the Court is implementing, not a military "tactic" regarding anonymous plaintiffs, but a Congressional and judicial presumption in favor of a presumption of open judicial proceedings, with identified parties.
Objections to Report and Pending Motions
The Court has thoroughly analyzed plaintiff's submission in light of the entire record. As required by Title 28 U.S.C. § 636(b)(1)(c), the Court has conducted an independent review of the entire record in this cause and has conducted a de novo review with respect to those matters raised by the objections. After due consideration, the Court concludes plaintiff's objections lack merit.
On August 29, 2005, plaintiff filed her objections to the report, motion for leave to file an amended complaint, and "plaintiff's reply brief in response to defendants' motion to dismiss for lack of subject matter jurisdiction." In sum, in her objection to the report, plaintiff objects to the dismissal of her case due to her failure to identify herself. In her motion for leave to amend her complaint, plaintiff asks that she be allowed to identify herself through the proposed amended complaint and proceed in the case. In her "reply" to defendants' motion to dismiss, she contends that her First and Fifth Amendment claims are not moot, even though the Air Force has corrected the application of its internet filtering policy which gave rise to her claims, because (a) nothing prevents the Air Force from changing its internet filtering policy or the application of that policy in the future; (b) there is no evidence that the Air Force has changed its policy with respect to all of its computers, world-wide, not just the computer facilities used by plaintiff; and (c) the memorandum in which the Air Force announced its changed policy also stated that the Air Force reserved the right to revoke or limit the right of anyone to use official government computers, systems, and network resources for "unofficial use," even though that use might otherwise be "appropriate," "if such action is warranted based upon mission needs," a reservation of authority, plaintiff assets, which illustrates problems with access to religious sites could arise again.
Docket no. 44 ("Objections to referral to the District Judge to Dismiss").
Docket no. 45.
Docket no. 46. On May 31, 2005, plaintiff filed a response to defendants' motion to dismiss. See docket no. 31. The rules do not afford plaintiff the right to file a second "reply brief in response." Nevertheless, the Court has fully considered plaintiff's August 29 "reply brief in response to defendants' motion to dismiss," which re-urges arguments, cases, and themes previously advanced by plaintiff.
Following a de novo review of the entire record, the Court overrules plaintiff's objections to the Magistrate Judge's report and recommendation and accepts the portions of the August 17, 2005 report and recommendation of the United States Magistrate Judge which recommended that plaintiff's request to proceed anonymously and for reconsideration be denied. After weighing the relevant factors and circumstances, plaintiff has not established that her case falls within the narrow category of exceptional cases where the need for confidentiality outweighs the strong constitutional interest of openness of judicial proceedings.
Docket no. 44.
Docket no. 37.
Accordingly, plaintiff must identify herself and may not proceed anonymously in this case. Therefore, plaintiff's motion to file an amended complaint to identify herself is granted to the extent that the amended complaint, plaintiff's third, identifies plaintiff. Otherwise, plaintiff has not provided sufficient grounds to amend any other aspect of her claims pursuant to Fed.R.Civ.P. 15. Plaintiff's previously filed motion for an extension of time to file an amended complaint to identify herself is denied as moot.
Docket no. 45.
Plaintiff's motion for leave to amend asserts that the amendment is sought to "correct this procedural defect" addressed by the August 19 report which recommended dismissal of the case due to plaintiff's failure to comply with Fed.R.Civ.P. 10(a). Docket no. 45. A comparison of the proposed third amended complaint to the filed second amended complaint discloses several other amendments, in addition to the identification of plaintiff. For example, in addition to correcting a clerical issue relating to the numbering of certain paragraphs, new allegations have been included in paragraphs 6 (jurisdiction and venue), 8 (regarding sovereign immunity and relief sought by plaintiff), 9 and 10 (regarding plaintiff and her claims), and 20 (causes of action) of the proposed third amended complaint. Other than paragraph 20, the proposed changes appear to be in the nature of arguments asserted in response to defendants' motion to dismiss; paragraph 20 appears to assert what plaintiff has previously represented, that she seeks injunctive and declaratory relief, not money damages.
Docket no. 40.
With respect to defendants' motion to dismiss, the August 17, 2005 report stated, in part:
Accordingly, defendants' motion to dismiss on the ground that the Court lacks subject matter jurisdiction over claims brought by an anonymous plaintiff should be granted and this case should be dismissed. If, within the time for filing objections to this report, plaintiff provides sufficient justification to the District Judge that she will identify herself immediately if the District Judge accepts this report and the District Judge otherwise finds that such additional time should be afforded plaintiff, then the remaining aspects of defendants' motion to dismiss, including defendants' argument that the case is moot because defendants have changed the relevant internet filtering software and policy, will need to be addressed.
Docket no. 42 at 13 (emphasis added).
Because plaintiff has identified herself — although arguably not in a timely fashion — the Court will not dismiss plaintiff's claims on the ground that the Court lacks subject matter jurisdiction over plaintiff's claims on the ground they have been brought anonymously. But, following a de novo review of the complete record and careful consideration of the parties' arguments regarding the issues raised in defendants' motion to dismiss in any document filed of record, the Court concludes defendants' motion to dismiss should be granted on the ground that plaintiff's claims are moot.
Docket no. 23.
The record indicates, and the parties do not contest, that the Air Force, as many government agencies, allows its employees to use government-owned computer hardware, software and facilities to access to the internet both for official government purposes in furtherance of their employment and limited personal use for the employee's own purposes so long as that private use does not interfere with the official business of the Air Force. However, Air Force policy forbids certain uses of the internet, such as visiting pornographic or racist internet sites. The Air Force uses filtering software which blocks the ability of any user of the government equipment and facilities from vising internet sites that are deemed to be inappropriate, such as pornographic sites. Air Force policy also forbids use of government equipment and facilities in a manner which could threaten the security of the government computer network or information stored on government computers or could overburden the communication system.
The filtering software and system used with the government computers at Brooks City Base in San Antonio apparently was configured for a time in a way which prevented plaintiff from using the government computers and government internet access to visit certain religious sites. According to allegations in plaintiff's complaints, plaintiff first brought this matter to the attention of a "specialist" in the IT section at the base where plaintiff was stationed, apparently Brooks City Base, on an unspecified date in December 2004. In January 2005, the Air Force command directed that the configuration of the filtering software be changed to unblock, if and as may be required, access to religious and political sites, and the unblocking of any such sites was completed by January 18, 2005. On February 28, 2005, Mr. John M. Gilligan, the Air Force's department-wide Chief Information Officer issued a clarifying memorandum to reiterate that religious or political sites are not deemed "inappropriate sites" under Air Force internet policies, except in certain circumstances specified in other written guidance to include excessive use, use that may result in more than incidental expense to the government, and use that may cause congestion or delay in service. The Air Force's correction of the software filtering configuration applying to the computer equipment and facilities plaintiff uses, and, indeed, the clarification of its filtering policy Air Force-wide, renders plaintiff's claims for declaratory and injunctive relief moot.
Defendants' motion to dismiss prevents evidence to show that of the Air Force bases in the San Antonio area, only Brooks City Base used internet filters at the time in question. See docket no. 23 at 4-5 and cited exhibits.
Docket no. 23, exhibits in support, Cosgrove Decl. and its exhibits 1 and 2.
Docket no. 23, exhibits in Support, Gilligan Decl. and its exhibit A; see also docket no. 4, exhibit A.
See e.g., McCorvey v. Hill, 385 F.3d 846, 849 n. 3 (5th Cir. 2004), cert. denied, 125 S.Ct. 1367 (2005).
Plaintiff argues dismissal is not appropriate because the Air Force continues to use filters, continues to have a policy that limits use of government computers and facilities for unofficial or personal purposes, and could limit plaintiff's ability to access religious sites in the future in a way which might infringe on plaintiff's constitutional rights. Plaintiff's concern is speculative and not sufficiently concrete or corroborated to support her argument that it is reasonable to conclude the Air Force will change its policies to so act. There is no evidence the Air Force is reconsidering Mr. Gilligan's February 28, 2005 clarifying memorandum or has any plans to allow incidental personal use of government computers but not in a way which will allow plaintiff to access religious sites. Plaintiff has not demonstrated that she has a federal constitutional right to unfettered use of government computers and internet access at her work place for her personal purposes. If and when the Air Force should so change its policies, plaintiff will have the opportunity to challenge that change and litigate her challenges. Stated differently, even if plaintiff's claims and injuries are "capable of repetition," there is no basis to conclude they would "evade review." The "voluntary cessation" doctrine does not apply, as there is no indication the Air Force will reinstate a filtering policy to block access to religious sites. The fact the Air Force reserves the right to prohibit any personal use of government computers or any use that might overload the government's communication systems or the security of the official uses of the government computers does not show otherwise. Nevertheless, there is no indication any further change in the Air Force's policy regarding the incidental, personal use of official government computers and internet access is likely or imminent. Accordingly, defendants' motion to dismiss shall be granted and this case shall be dismissed; each side to bear its own costs. Conclusion
Again, plaintiff has indicated that she wishes to litigate her claims on her own behalf as well as on behalf of all others similarly situated. Plaintiff has not sought and has not been granted leave to prosecute her claims as a class action.
Because the government does not create a public forum when it establishes an internet connection, see, e.g., Am. Library Ass'n v. Ashcroft, 539 U.S. 194, 206-07, 123 S.Ct. 2297, 2305 (2003) ("To create such a forum, the government must make an affirmative choice to open up its property for use as a public forum.") (citations omitted) (First Amendment case addressing internet access at public library), a First Amendment Establishment Clause case upon which plaintiff relies (docket no. 31 at 10, 12-13), Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141 (1993), is distinguishable on the facts and the law.
Docket no. 23.
Based on the foregoing, it is ORDERED that:
(a) plaintiff's objections to the August 17, 2005 Report and Recommendation of United States Magistrate Judge Mathy are overruled and the Report and Recommendation of the United States Magistrate Judge (docket no. 42) is ACCEPTED pursuant to 28 U.S.C. § 636(b)(1);
(b) plaintiff's motion to file an amended complaint is granted, in accordance with this Order, and the Clerk's Office shall file plaintiff's third amended complaint tendered with plaintiff's motion;
(c) defendants' motion to dismiss is granted and plaintiff's claims are dismissed without prejudice on the ground they are moot;
(d) any other requests for relief are denied; and
(e) plaintiff's case is dismissed, each side to bear its own costs.
It is so ORDERED.