1

The Honorable Jean C. Hamilton, United States District Judge for the Eastern

District of Missouri, presiding.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-3581

___________

Jane Doe, individually and as Next *

Friend of John Doe, a minor, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Martha Cassel; Angel Cooper; Skye *

Howard; Randall Majors; Jeff Frick; * [PUBLISHED]

Monica Smith, *

*

Defendants-Appellees. *

___________

Submitted: March 14, 2005

Filed: April 11, 2005

___________

Before WOLLMAN, LAY, and HANSEN, Circuit Judges.

___________

PER CURIAM.

Plaintiff appeals dismissal of her § 1983 suit with prejudice for failure to

satisfy the heightened pleading requirements imposed by the district court.1

 We

affirm on the basis that Doe failed to comply with the district court’s reasonable

orders.
2

Defendants the State of Missouri and certain of its agencies moved for and

were granted summary judgment based on sovereign immunity. Doe does not appeal

that order.

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I.

A. Facts.

As this case comes to us in part on review of a FED.R.CIV. P. 12(b)(6) motion,

we view the facts in the light most favorable to the non-moving Plaintiff. Wisdom v.

First Midwest Bank, of Poplar Bluff, 167 F.3d 402, 405 (8th Cir. 1999). At the time

of the underlying events of this § 1983 suit, John Doe (John) was a mentally

challenged eight year-old boy who was in the care and custody of the state-run

Cottonwood Residential Facility (Cottonwood) after falling victim to his father’s

sexual abuse. While at Cottonwood, John was repeatedly sodomized and sexually

molested by other residents of the facility. The named Defendants, individual

employees in various positions of authority at Cottonwood, were aware that certain

of the other residents were sexual predators, yet placed the young and vulnerable John

in an unsafe environment and then failed to adequately supervise the residents and to

protect John. Because of John’s youth, limited cognitive abilities, and his emotional

trauma from the attacks, he is unable to provide details of the events or identify how

the Defendants’ actions allowed the attacks to occur. John’s mother Jane Doe (Doe),

individually and in her capacity as next friend to her minor son John, filed this suit.

B. Procedural Background.

Over the period of approximately eighteen months, Doe filed four complaints,

culminating with her Third Amended Complaint. Doe’s Second Amended Complaint

listed the individual Defendants by name, but failed to delineate the Defendants by

their respective acts or omissions. In response to Doe’s Second Amended Complaint,

the Defendants2

 moved for a dismissal on the grounds that Doe’s Second Amended
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Complaint did not satisfy the heightened pleading standards required in § 1983

actions. The district court dismissed Doe’s Second Amended Complaint without

prejudice, but permitted Doe ten days to amend her complaint to correct the noted

pleading deficiencies. After being granted an extension of time, Doe filed her Third

Amended Complaint, which was substantially similar to her Second Amended

Complaint in that it continued to refer to Defendants collectively and failed to

delineate their individual acts or omissions. Defendants renewed their motion to

dismiss, arguing that the lack of particularity in Doe’s Third Amended Complaint

failed to state a claim upon which relief can be granted under Rule 12(b)(6), failed to

delineate Defendants and identify their respective acts or omissions in separate

paragraphs as required under Rule 10(b), and failed to follow the district court’s

earlier orders to correct these deficiencies. 

During the same general time frame, discovery began to move forward. Doe

repeatedly failed to meet the district court’s discovery schedule relating to her expert

witness. After finding that Doe had failed to correct her pleading deficiencies and

that she had been “guilty of undue delay,” the district court dismissed Doe’s Third

Amended Complaint with prejudice. Memorandum and Order Dated September 23,

2004 at 6. The district court denied Doe’s motion to amend a fourth time and file a

fifth complaint. This appeal followed.

II. Heightened Pleading Requirements For § 1983 Claims.

Common law heightened pleading requirements, while once enforced in § 1983

suits, have been eliminated. The Supreme Court invalidated heightened pleading

requirements in § 1983 suits against municipalities in Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). However,

the status of heightened pleading requirements for § 1983 claims against individual

defendants remained an open question. See Edginton v. Mo. Dep’t of Corr., 52 F.3d

777, 779 n.3 (8th Cir. 1995). Following Leatherman, this Circuit continued to require
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This result is consistent with the circuits that have addressed the issue since

Swierkiewicz. See e.g. Educadores Puertorriquenos en Accion v. Hernandez, 367

F.3d 61, 67 (1st Cir. 2004); Alston v. Parker, 363 F.3d 229, 233-235 (3rd Cir. 2004);

Phelps v. Kapnolas, 308 F.3d 180, 187 (2nd Cir. 2002); Galbraith v. County of Santa

Clara, 307 F. 3d 1119, 1125-26 (9th Cir. 2002); Goad v. Mitchell, 297 F.3d 497, 501-

05 (6th Cir. 2002); Higgs v. Carter, 286 F.3d 437, 439 (7th Cir. 2002); Currier v.

Doran, 242 F.3d 905, 911-17 (10th Cir. 2001); see also 2 James Wm. Moore et al.,

Moore’s Federal Practice § 9.10[2], at 9-62-67 (3rd ed. 2004). 

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heightened pleading in § 1983 suits against individual defendants, reasoning that

particularity in pleadings facilitated the individual government officials’ ability to

mount a qualified immunity defense early in the litigation. Id. We now recognize

Edginton’s heightened pleading requirement in § 1983 suits against individual

defendants has been abrogated. The only permissible heightened pleading

requirements in civil suits are those contained in the Federal Rules of Civil Procedure

or those in federal statutes enacted by Congress.3

 Swierkiewicz v. Sorema N.A., 534

U.S. 506, 513 (2002). 

Rule 8(a)’s simplified pleading standard applies to all civil actions, with

limited exceptions. Rule 9(b), for example, provides for greater

particularity in all averments of fraud or mistake. This Court, however,

has declined to extend such exceptions to other contexts. In Leatherman

we stated: ‘[T]he Federal Rules do address in Rule 9(b) the question of

the need for greater particularity in pleading certain actions, but do not

include among the enumerated action any reference to complaints

alleging municipal liability under § 1983. Expressio unius est exclusio

alterius.’ Just as Rule 9(b) makes no mention of municipal liability

under [§ 1983], neither does it refer to employment discrimination.

Thus, complaints in these cases, as in most others, must satisfy only the

simple requirements of Rule 8(a). 

Id. (quoting Leatherman, 507 U.S. at 168) (footnotes and citation omitted). 
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In rejecting a heightened pleading requirement, however, we do not leave

government officials and the district courts “at the mercy of overly aggressive

plaintiffs.” Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 67

(1st Cir. 2004). The district courts retain all tools available under the Federal Rules

of Civil Procedure to eliminate meritless claims early in the litigation process. For

example, the district court can order the plaintiff to reply to the defendant’s answer

under Rule 7(a), order the plaintiff to delineate independent causes of actions against

individual defendants under Rule 10(b), order the plaintiff to provide a more

definitive statement under Rule 12(e), or tailor discovery to protect the defendants

from unnecessary embarrassment or undue burden under Rule 26(c). See id. The

district court also retains the power to sanction plaintiffs who file frivolous claims

under Rule 11. In appropriate cases, plaintiffs that fail to comply with the district

court’s orders face dismissal under Rule 41(b). 

III. Dismissal of Complaint.

As discussed supra, there are no common law heightened pleading

requirements in § 1983 suits. Accordingly, the district court’s dismissal of Doe’s

Third Amended Complaint for failure to satisfy a heightened pleading requirement

was an error of law. 

However, we affirm the district court’s judgment based on its alternative ruling

that Doe failed to comply with the district court’s reasonable orders to delineate

Defendants and identify their respective acts or omissions. We note with particular

interest that the district court did not apply the harsh medicine of dismissal with

prejudice to Doe’s initial complaint, but to her fourth. The district court resorted to

dismissal with prejudice only after repeated orders to delineate Defendants and

identify their respective acts or omissions. Indeed, eighteen months into the

litigation, and despite direct and specific instructions to the contrary from the district

court, Doe continued to aver generally that the “Defendants” had violated John’s
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constitutional rights. The district court concluded that Doe had failed to comply with

its orders to delineate the defendants and exercised its discretion under Rule 41(b)

and dismissed her Third Amended Complaint with prejudice. 

We review dismissal of a complaint under Rule 41(b) for failure to comply with

the district court’s orders for abuse of discretion. Rodgers v. Curators of Univ. of

Mo., 135 F.3d 1216, 1219 (8th Cir. 1998). In determining whether the district court

abused its discretion, we use “a balancing test that focuses foremost upon ‘the degree

of egregious conduct which prompted the order of dismissal and to a lesser extent

upon the adverse impact of such conduct upon both the defendant and the

administration of justice in the district court.’” Id. (quoting Omaha Indian Tribe v.

Tract I-Blackbird Bend Area, 933 F.2d 1462, 1468 (8th Cir. 1991)). The “sanction

imposed by the district court must be proportionate to the litigant’s transgression” and

dismissal with prejudice should only be imposed in cases of “wilful disobedience of

a court order or persistent failure to prosecute a complaint.” Id. (internal quotations

and citations omitted). The district court need not find that the party acted in bad

faith, but only that she acted intentionally as opposed to accidentally or involuntarily.

Id. 

At the time Doe’s Third Amended Complaint was dismissed, litigation had

been pending for approximately eighteen months. The district court had recently

admonished Doe for failure to comply with the discovery schedule. Doe’s failure to

articulate specific factual allegations tied to specific Defendants, well into discovery,

was more than a technical pleading deficiency, it denied the Defendants the

protection of qualified immunity which is meant to provide both immunity from suit

as well as an affirmative defense in response to a suit. Saucier v. Katz, 533 U.S. 194,

200-01 (2001). Defendants were being subjected to depositions and discovery that

a proper qualified immunity response may have avoided. Considering that noncompliance with the district court’s instructions to delineate Defendants and their

actions deprived the Defendants of the opportunity to terminate the litigation prior to
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discovery based on qualified immunity, dismissal of the complaint was proportionate

to the transgression and simply granted Defendants the remedy that Doe’s delay

prevented. 

On these facts, we hold that it was not an abuse of discretion for the district

court to dismiss Doe’s complaint under Rule 41(b) for failure to comply with the

district court’s reasonable orders. 

IV. Denial of Leave to Amend Complaint.

Doe’s final argument that the district abused its discretion by denying leave to

amend a fourth time and file a fifth complaint fares no better. We review the district

court’s denial of leave to amend a complaint for abuse of discretion. Becker v. Univ.

of Neb. at Omaha, 191 F.3d 904, 908 (8th Cir. 1999). The district court’s

determination that a party is guilty of delay is a finding of fact subject to review for

clear error. Rodgers, 135 F.3d at 1219. 

Rule 15(a) provides that leave to amend a pleading “shall be freely given when

justice so requires.” However, there is no absolute right to amend and a finding of

“undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the non-moving party, or futility

of the amendment” may be grounds to deny a motion to amend. Becker, 191 F.3d at

908 (citation omitted). “Delay alone is not enough to deny a motion to amend;

prejudice to the nonmovant must also be shown.” Bediako v. Stein Mart, Inc., 354

F.3d 835, 841 (8th Cir. 2004) (citation omitted). 

Earlier, when the district court dismissed Doe’s Second Amended Complaint

without prejudice the district court specifically instructed Doe to delineate individual

Defendants by paragraphs and to identify the specific acts or omissions of each

Defendant. Doe failed to follow these instructions when she filed her Third Amended
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Complaint. In its Order and Memorandum, the district court listed multiple instances

when Doe had failed to comply with the discovery schedule. In denying Doe leave

to amend a fourth time, the district court determined that Doe had been “guilty of

undue delay.” See Memorandum and Order Dated September 23, 2004 at 6.

After reviewing the record, we cannot say the district court’s factual findings

regarding Doe’s delay are clearly erroneous. Furthermore, we agree that this delay

directly prejudiced the Defendants’ ability to mount an effective qualified immunity

defense and that granting leave to amend would have only prejudiced the Defendants

further. We hold that the district court did not abuse its discretion when it denied Doe

leave to amend her complaint a fourth time. 

The judgment of the district court is AFFIRMED.

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