Wagner v. Brown et al

Filing 13

MEMORANDUM AND ORDER denying 11 Motion to Add Parties. Signed by District Judge John A. Ross on 9/10/15. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BENJAMIN WILLIAM WAGNER,
Plaintiff,
v.
JAZEALL BROWN, et al.,
Defendants,

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No. 4:15CV1277 JAR

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to add parties. The Court construes
it as a motion for reconsideration and denies it.
In this action under 42 U.S.C. § 1983, plaintiff sues defendants Jazeall Brown and Janice
Fairless, who worked in the mailroom at the St. Louis City Justice Center, for stopping his
personal mail. He alleges that John/Jane Doe #1 was the mailroom supervisor and that John/Jane
Doe #2 was a mailroom clerk. The Court dismissed the John Doe defendants on in forma
pauperis review. Plaintiff moves the Court to reconsider the dismissal of these defendants.
Although the Court did not make it clear in its Memorandum and Order, it dismissed
these defendants because they are fictitious parties. In general, fictitious parties may not be
named as defendants in a civil action. Phelps v. United States, 15 F.3d 735, 739 (8th Cir. 1994).
An action may proceed against a party whose name is unknown, however, if the complaint
makes sufficiently specific allegations to permit the identity of the party to be ascertained after
reasonable discovery. Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985). In this case, it is not
clear whether plaintiff will be able to ascertain the identities of the fictitious parties during
discovery. Therefore, the motion is denied.

This finding does not prevent plaintiff from attempting to ascertain the identities of the
John/Jane Doe parties during discovery. If plaintiff does discover the identities of these parties
during discovery, and if he wishes to add them to this action, he must file an amended complaint
setting forth his claims against these parties. Plaintiff is warned that the filing of an amended
complaint replaces the original complaint, and claims that are not realleged are deemed
abandoned. E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d
922, 928 (8th Cir. 2005).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to add parties [ECF No. 11] is
DENIED.
Dated this 10th day of September, 2015.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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