United States District Court, E.D. Missouri, Southeastern Division
VINCENT E. SARGENT, Plaintiff,
STEVE LONG, et al., Defendants.
MEMORANDUM AND ORDER 
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff Vincent Sargent's
second Motion to Amend Complaint. [Doc. 23.] Plaintiff has
previously attempted to amend his complaint. [Doc. 16.]
Because the Plaintiff did not attach a copy of the proposed
amended complaint to the first motion to amend, the Court
denied the motion without prejudice. [Doc. 17.] Plaintiff has
now filed a second Motion to Amend Complaint. [Doc. 23.] In
the present motion, Plaintiff states that “his motion
is to further expand on the defendants in the above entitled
cause.” [Doc. 23.] Plaintiff attached a proposed
Amended Complaint and an exhibit to the motion. [Docs. 23-1,
following reasons, the Court will deny Plaintiff's second
Motion to Amend Complaint and grant Plaintiff an additional
thirty days to file an amended complaint. The court should
freely give leave to amend when justice so requires.
Fed.R.Civ.P. 15(a)(2). Parties do not have an absolute right
to amend their pleadings even under this liberal standard.
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715
(8th Cir. 2008). “A district court appropriately denies
the movant leave to amend if there are compelling reasons
such as 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.” Id. “A pro se
plaintiff who brings a civil rights action should be freely
afforded an opportunity to amend his complaint.”
Witte v. Culton, No. 4:11-CV-2036 ERW, 2012 WL
5258789 at *3 (E.D. Mo. Oct. 24, 2012).
document filed pro se is to be liberally construed
… and a pro se complaint, however, inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citations
omitted). “Although pro se pleadings are to be
construed liberally, pro se litigants are not excused from
failing to comply with substantive and procedural law.”
Morgan v. Hawthorne Children's Psychiatric
Hosp., No. 4:11-CV-1746 CEJ, 2013 WL 136467 at *1 (E.D.
Mo. Jan. 10, 2013) (quoting Burgs v. Sissel, 745
F.2d 526, 528 (8th Cir. 1984)). The Court will not supply
additional facts or construct a legal theory for plaintiff
that assumes facts that have not been pleaded. See Stone
v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
is well-established that an amended complaint [supersedes] an
original complaint and renders the original complaint without
legal effect.” In re Wireless Tel. Fed. Recovery
Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005) (citing
In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067
(8th Cir. 2000)). In this case, Plaintiff's proposed
amended complaint attempts to re-assert claims against former
Defendants Robin Norris, Steve Long, and Dave Domire, which
were dismissed for being conclusory and failure to state a
claim. Plaintiff's proposed amended complaint, however,
does not re-allege the remaining claims in the original
complaint. Any claim included in the original complaint is
deemed waived or abandoned if it is not also included in the
amended complaint. Lacey v. Maricopa County, 693
F.3d 896, 928 (9th Cir. 2012). “This Court has
recognized, however, that a pro se party may not fully
understand the superseding effect of the second
pleading.” Macon v. Cedarcroft Health Serv.,
No. 4:12-CV-1481 CAS, 2013 WL 1283865 at *4 (E.D. Mo. Mar.
27, 2013). From the text of Plaintiff's motion, it
appears that Plaintiff's intention is not to abandon the
claims that he failed to re-allege. The Court previously
found that the claims that were not realleged survived
frivolity review, therefore, it is unlikely that Plaintiff
would elect to abandon those claims.
Court will give Plaintiff, an additional thirty days until
May 25, 2018 to file another motion for leave to file an
amended complaint with a proposed amended complaint attached.
The names of all of the defendants in the complaint should be
included in the caption of the complaint. Fed.R.Civ.P. 10(a).
Federal Rule of Civil Procedure 8(a)(2) requires that a claim
for relief must contain a short and plain statement that
demonstrates grounds for the court's jurisdiction,
showing that the pleader is entitled to relief, and a demand
for the relief sought. The pleading standard does not require
detailed factual allegations, “but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a
cause of action will not do.” Id.
Court warns Plaintiff that the filing of an amended complaint
completely replaces his original complaint and claims that
are not re-alleged are deemed abandoned. Further, any new
claims in the amended complaint must survive review under 28
U.S.C. § 1915 for frivolousness, maliciousness, and
failure to state a claim.
IT IS HEREBY ORDERED that Plaintiff's
second Motion to Amend Complaint is DENIED without
prejudice. [Doc. 23.]
IS FURTHER ORDERED that Plaintiff is
GRANTED an additional thirty (30) days, up
to and including May 25, 2018, to file a motion to amend
complaint. Plaintiff should include a proposed amended
complaint as an attachment to any motion to amend. The
proposed amended complaint should include all of the claims
that Plaintiff will assert in this action going forward.
 The parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. ...