United States District Court, N.D. Illinois, Eastern Division
December 1, 2004.
GREGORY L. ASHFORD, NIKITUS CROSS, DANIEL JIMERSON, and RUFUS WILLIAMS, Plaintiffs,
UNNAMED COOK COUNTY CORRECTIONAL OFFICERS, COOK COUNTY SHERIFF, and COUNTY OF COOK, Defendants.
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs sue for alleged injuries suffered as a result of
various civil rights violations. Cook County moves to dismiss,
contending that it is not liable for the actions of persons
employed by the Sheriff of Cook County and, besides, plaintiffs
have not alleged that they complied with the exhaustion
requirement of the Prison Litigation Reform Act.
The County is not itself liable for the conduct of the
Sheriff's employees, but it is an indispensable party because it
must pay any settlement or judgment. Carver v. Sheriff of
LaSalle County, 324 F.3d 947 (7th Cir. 2003). It is a
defendant only for Carver purposes. Failure to exhaust is an
affirmative defense (and here more properly raised by the Sheriff
since the County is merely a stakeholder). It probably is better
practice for plaintiffs to allege compliance, but here they have
made it clear that they believe they have complied. If they are
wrong, we expect some defendant will be so alleging. The motion
to dismiss is denied.
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