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Askew v. Sheriff of Cook County

May 18, 2009


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 4530-Samuel Der-Yeghiayan, Judge.

The opinion of the court was delivered by: Wood, Circuit Judge.


Before FLAUM, ROVNER, and WOOD, Circuit Judges.

In August 2004, appellant Carl Askew was a pretrial detainee at the Cook County Jail. Askew alleges that, during his incarceration, officer Bernardo Lopez threw him to the ground without provocation and, after Askew asked to be transferred to an-other division in the jail for fear of harm from Lopez and other guards, deliberately left him alone with other inmates who later stabbed him.In August 2006, Askew filed this civil rights lawsuit, alleging excessive force and deliberate indifference claims against Lopez and a municipal liability claim against the Sheriff. The district court granted defendants' motion to dismiss the case for failure to join a party under FED. R. CIV. P. 19. Dismissal,

however, is not the remedy that Rule 19 prescribes for the problem here. We therefore reverse and remand for further proceedings.


Askew filed his claim on August 21, 2006, naming the Sheriff, Lopez, and "Unidentified Cook County Sheriff's Office Correctional Officers" as defendants. In his initial complaint, Askew alleged two theories of relief under 42 U.S.C. § 1983: first, that "the individual defendant" (presumably Lopez) violated his constitutional rights by subjecting him to excessive force, and second, that this person exhibited deliberate indifference to his safety. On August 22, 2006, Askew apparently realized that he had not indicated in what way either the unidentified officers or the Sheriff had infringed his rights, and he therefore filed a first amended complaint. The first amended complaint modified counts I and II so that they were now against "the individual defendants," and it added a third count based on Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), against the Sheriff. The Monell claim alleged that the actions of Lopez and the unidentified officers were taken pursuant to de facto policies or customs of the Sheriff's office. On November 2, 2006, with leave of the court, Askew filed a second amended complaint, in which he dropped the unidentified officers from his claim, leaving only Lopez and the Sheriff as defendants. Following defendants' motion for a more definite statement and once again with leave of the court, Askew filed a third amended complaint clarifying that his § 1983 claims were based on alleged violations of the Eighth and Fourteenth Amendments of the U.S. Constitution. On January 31, 2007, defendants filed a motion under FED. R. CIV. P. 12(b)(7), in which they asked the court to dismiss Askew's third amended complaint because he had not joined Cook County as a party to the action.

The district court agreed that Cook County's presence was required under Rule 19. This, it thought, meant that the action had to be dismissed outright. In so holding, the court relied on the decision in Carver v. Sheriff of LaSalle County, 324 F.3d 947 (7th Cir. 2003) ("Carver II"), which held that in a claim against a Sheriff in Illinois the relevant county is a required party. Therefore, the district court reasoned, because the Sheriff was named as a defendant in Askew's action, Cook County was an "indispensable" party. Askew's failure to name Cook County as a defendant, it concluded, was an omission requiring dismissal of the action.


This court has yet to decide whether to review decisions applying Rule 19 de novo or for an abuse of discretion. Davis Companies v. Emerald Casino, Inc., 268 F.3d 477 (7th Cir. 2001); Thomas v. United States, 189 F.3d 662, 666 (7th Cir. 1999); North Shore Gas Co. v. Salomon, Inc., 152 F.3d 642, 648 (7th Cir. 1998); United States ex rel. Hall v. Tribal Dev. Corp., 100 F.3d 476, 478 (7th Cir. 1996) (collecting cases). Because the district court made a legal error in its analysis, however, our approach in the present case would be the same under either standard of review. We therefore postpone once again the resolution of the question of the proper standard of review in Rule 19 cases for one where that issue matters to the outcome.

The purpose of Rule 19 is to "permit joinder of all materially interested parties to a single lawsuit so as to protect interested parties and avoid waste of judicial resources." Moore v. Ashland Oil, Inc., 901 F.2d 1445, 1447 (7th Cir. 1990). Dismissal, however, is not the preferred outcome under the Rules. Courts are "reluctant to dismiss for failure to join where doing so deprives the plaintiff of his choice of federal forum." Davis Companies, 268 F.3d at 481. Before turning to the specifics of Askew's case, a brief review of the structure of Rule 19 is useful.

Ever since the 1966 amendments to the Rule, it has drawn a fundamental distinction between two kinds of missing parties: those whose joinder is feasible and those whose joinder is not feasible, because it would defeat subject-matter jurisdiction, or the party is beyond the personal jurisdiction of the court, or the party has and makes a valid objection to venue. Rule 19(a) addresses "persons required to be joined if feasible," and Rule 19(b) describes what the court must do if joinder is not feasible. The first step, however, is to identify which parties (if any) fall within the scope of the rule. Rule 19(a)(1) defines who is a "required party":

(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter ...

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