                    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.


      1
       The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri, presiding.
                                          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


      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.

                                         -2-
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

                                          -3-
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).




      3
       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).

                                         -4-
       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

                                           -5-
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 non-
compliance with the district court’s instructions to delineate Defendants and their
actions deprived the Defendants of the opportunity to terminate the litigation prior to

                                          -6-
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

                                          -7-
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.
                     ______________________________




                                          -8-
