Heightened Pleading Rejected in Individual Capacity Suits

Fed. Rule Civ. Pro. 9 imposes a heightened pleading requirement for certain enumerated civil actions. Actions brought under 42 U.S.C. Sec. 1983 are not listed in Rule 9. Thus, in Leatherman v. Tarrant County Narcotics Intelligence & Coordinate Unit, 507 U.S. 163 (1993), the Court abrogated the heightened-pleading requirements lower courts had imposed on section 1983 litigants. Surprisingly, the Eighth Circuit, post-Leatherman, held that heightend-pleading requirements could be imposed in individual capacity suits. See Edginton v. Mo. Dep’t of Corr., 52 F.3d 777 (8th Cir. 1995). That a federal court would impose requirements contradicting the Federal Rules of Civil Procedure indicates the hostility that section 1983 plaintiffs face.

Indeed, the Eighth Circuit imposed this onerous requirement on section 1983 plaintiffs because "particularity in pleadings facilitated the individual government officials’ ability to mount a qualified immunity defense early in the litigation." Doe v. Cassel, No. 04-3581 (8th Cir. Apr. 11, 2005) (citing Edginton, 52 F.3d at 779, n.3). In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) the Court affirmed Leatherman's holding, writing that any case not enumerated in Rule 9 must only meet Rule 8's short and plain statement requirement.

Thus, in Cassel, the Eighth Circuit abrogated its heightened-pleading rule. Id. at *4 ("We now recognize Edginton’s heightened pleading requirement in § 1983 suits against individual defendants has been abrogated.") In a footnote, the panel noted:

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).
Id. at *4, n.3.