The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendants' motion to dismiss Plaintiff Carl Askew's ("Askew") third amended complaint. For the reasons stated below, we grant the motion to dismiss.
Askew alleges that in July 2004 he was a pre-trial detainee at the Cook County Department of Corrections. Askew claims that in July 2004 he filed a lawsuit against Defendant Officer Bernardo Lopez ("Lopez"), in which Askew accused Lopez, a prison guard, of using excessive force against Askew. According to Askew, on August 21, 2004, after he filed the lawsuit, Lopez threw him to the ground without provocation. Askew allegedly then requested on August 23, 2004, that he be transferred to another division within the jail because he feared he would be harmed by the guards. On August 26, 2004, "unidentified guards" and Lopez allegedly left Askew alone with other inmates who proceeded to stab Askew. (TA Compl. Par. 8). Askew claims that he called for help, but the guards refused to help him. Askew brought the instant action against the Sheriff of Cook County, Illinois, ("Sheriff") and Lopez. Askew includes in his third amended complaint a claim alleging excessive force in violation of 42 U.S.C. § 1983 ("Section 1983") (Count I), a Section 1983 deliberate indifference claim (Count II), and a Section 1983 Monell claim (Count III).
Pursuant to Federal Rule of Civil Procedure Rule 12(b)(7) ("Rule 12(b)(7)") a defendant can move to dismiss an action based upon the plaintiff's "failure to join a party under" Federal Rule of Civil Procedure 19 ("Rule 19"). Fed. R. Civ. P. 12(b)(7); see also Boulevard Bank Nat. Ass'n v. Philips Medical Systems Intern. B.V., 15 F.3d 1419, 1422 (7th Cir. 1994)(stating that "in deciding a Rule 12(b)(7) motion to dismiss," the court "must apply Rule 19(b) if [the court] first determine[s] that the party to be joined satisfies the threshold requirements of Rule 19(a)"). Rule 19 provides the following:
(a) Persons to be Joined if Feasible
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (I) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
(b) Determination by Court Whenever Joinder not Feasible
If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder.
(c) Pleading Reasons for Non-joinder
A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined.
(d) Exception of Class Actions
This rule is subject to the provisions of Rule 23. Fed. R. Civ. P. 19.A court should dismiss an action pursuant to Rule 12(b)(7) for failing to join an unavailable and indispensable party "[i]f there is no way to structure a judgment in the absence of the party that will protect both the party's own rights and the rights of the existing ...