In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2190

CARL ASKEW,

Plaintiff-Appellant,

v.

SHERIFF OF COOK COUNTY, ILLINOIS, and

BERNARDO LOPEZ,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 4530—Samuel Der-Yeghiayan, Judge.

ARGUED OCTOBER 31, 2008—DECIDED MAY 18, 2009

Before FLAUM, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. 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 another 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
2 No. 07-2190

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.

I

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
No. 07-2190 3

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.

II

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
4 No. 07-2190

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
No. 07-2190 5

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 jurisdiction must be

joined as a party if:

(A) in that person’s absence, the court cannot

accord complete relief among existing parties; or

(B) that person claims an interest relating to the

subject of the action and is so situated that disposing of the action in the person’s absence may:

(i) as a practical matter impair or impede the

person’s ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or

otherwise inconsistent obligations because

of the interest.

Once such a party has been identified, the Rule prescribes

what the court must do. Note that as part of the

Rule 19(a)(1) inquiry, the court has already considered

whether the absentee is a person who is subject to

service of process and whose joinder will not deprive

the court of subject-matter jurisdiction. For the set of

absentees who meet those criteria, it is Rule 19(a)(2)

that specifies the correct response by the court, not

Rule 19(b). Rule 19(a)(2) says that “[i]f a person has not

been joined as required, the court must order that the

person be made a party. A person who refuses to join as

a plaintiff may be made either a defendant or, in a
6 No. 07-2190

proper case, an involuntary plaintiff.” Finally, once

such a person has been brought into the case, if the new

party raises a valid objection to venue (an unlikely event,

now that 28 U.S.C. § 1391(a)(3) permits, as a default

venue in diversity cases, a district in which the

defendant is subject to personal jurisdiction), the court

must dismiss that party. Rule 19(a)(3).

Only if the court determines that a party meets the

criteria of Rule 19(a)(1)(A) and (B), but the party cannot

be joined (usually because joinder would destroy

complete diversity or the court lacks personal jurisdiction over it) must the court turn to Rule 19(b) and

decide what to do about the problem. Even then, dismissal is not automatic. Instead, the court must “determine whether, in equity and good conscience, the action

should proceed among the existing parties or should

be dismissed.” Rule 19(b) spells out factors for the court

to consider in making that judgment, with an emphasis

on practical measures that will allow either the entire

suit or part of it to go forward.

The district court in the present case found that Cook

County was a party that should be joined in the action

under Rule 19(a) because “the Sheriff . . . is included

as a Defendant in this action, [and the Sheriff] is an

elected official.” The court then jumped to the conclusion that “there is no way to reasonably structure the

instant action in a fashion that would ensure the rights

of the County are protected in its absence,” and it consequently dismissed the action in its entirety. In so

doing, the court misunderstood Rule 19 in several respects.
No. 07-2190 7

The district court’s first error was to skip over

Rule 19(a)(2) altogether. The third amended complaint

that Askew filed named two parties: Lopez and the

Sheriff of Cook County. The missing party whose

joinder was required, based on this court’s decision in

Carver II, was Cook County itself. Had the district court

asked the questions whether the presence of Cook

County in the suit would destroy its subject-matter jurisdiction in this § 1983 action and whether the County

was subject to service of process from the Northern

District of Illinois, both answers would have been clear:

no, and yes. With that much established, the court

would have moved to Rule 19(a)(2) and ordered the

joinder of the County as a third defendant. The County

would have had no conceivable defense to venue, which

is proper in a federal-question case where (among

other places) a substantial part of the events giving rise

to the claim occurred (here, the Cook County jail, which

sits in the Northern District of Illinois), and so there

would have been no occasion to dismiss under

Rule 19(a)(3). The case then could (and should) have

proceeded to the merits.

Even if, counterfactually, there might have been a

problem bringing in the County, the court erred by

treating Askew’s claim against Lopez and his claim

against the defendant Sheriff as one and the same. Just

because Carver II establishes that Cook County is a required party insofar as Askew is suing the Sheriff, it

does not necessarily follow that the County is also a

required party insofar as Askew is suing Lopez in his

individual capacity. For this purpose, the rationale
8 No. 07-2190

behind Carver II is important. There, following the

Illinois Supreme Court’s holding in Carver v. Sheriff of

LaSalle County, 203 Ill. 2d 497 (2003) (which answered a

question certified by this court in Carver v. Sheriff of

LaSalle County, 243 F.3d 379 (7th Cir. 2001) (“Carver I”)),

we held that 745 ILCS 10/9-102 required a county to pay

for a judgment entered against the county sheriff in his

official capacity. Carver II, 324 F.3d at 948. Illinois law

establishes that the Sheriff is an “independently elected

county officer and is not an employee of the county in

which the sheriff serves.” Carver, 787 N.E.2d at 136;

Ill.Const.1970, art. VII, § 4(c); Moy v. County of Cook, 159

Ill.2d 519 (1994). It is the responsibility of the Sheriff to

appoint and hire deputies (55 ILCS 5/3-6008 (West 2000)),

to act as custodian of the county courthouse and jail

(55 ILCS 5/3-6017 (West 2000)), and to act as the county’s

supervisor of safety (55 ILCS 5/3-6035 (West 2000)). The

Sheriff’s office is financed by public funds, appropriated

to that office by Cook County. See, e.g., 55 ILCS 5/4-6003

(West 2000) (the county board “shall fix the compensation of sheriffs, with the amount of their necessary clerk

hire, stationery, fuel, and other expenses”); 55 ILCS 5/5-

1106 (West 2000) (county board obligated to “provide

proper rooms and offices for the accommodation” of the

sheriff, as well as “reasonable and necessary expenses

for the use of the sheriff”). Thus, “a county in Illinois is

a necessary party in any suit seeking damages from an

independently elected county officer . . . [and] [b]ecause

state law requires the county to pay, federal law deems

it an indispensable party to the litigation.” Carver II, 324

F.3d at 948.
No. 07-2190 9

While this holding establishes that the County is a

required party for Askew’s suit against the Sheriff, it does

not answer the analytically distinct question whether

the County is similarly required for Askew’s suit

against Lopez, which was brought against him in his

individual capacity. Lopez argues that the County is still

“indispensable,” reasoning that if there is a tort judgment entered against Lopez, the Sheriff must indemnify

him, and that if the Sheriff must pay, the County’s

interests are automatically implicated. The Sheriff’s

obligations are governed by 745 ILCS 10/9-102, which

reads as follows:

A local public entity is empowered and directed to

pay any tort judgment or settlement for compensatory damages for which it or an employee while

acting within the scope of employment is liable in

the manner provided in this Article.

Defendants argue that because, under state law, the

County will necessarily be the entity funding any judgment entered against Lopez, this case is directly

analogous to the Carver cases and thus the County’s

joinder would be required even if the case were solely

against Lopez. This argument has some superficial

appeal: if this were a suit imposing liability on the

Sheriff for Lopez’s actions, then there would be no

escape from Carver II. But it is not. Askew’s suit against

the Sheriff cannot be one seeking to hold him liable

under a theory of respondeat superior for Lopez’s actions.

Monell and a host of later cases firmly establish that there

is no respondeat superior liability under § 1983. See Monell,
10 No. 07-2190

436 U.S. at 694-95. See also Moy, 159 Ill. 2d, 159 Ill. 2d at 930

(holding that a county is not vicariously liable for the

actions of a sheriff’s deputy). That means that Askew’s

suit is a simple one against Lopez in his individual capacity. Any judgment entered would be against Lopez

alone, without regard to any collateral sources to which

Lopez might turn to fund that judgment.

A closer look at the Sheriff’s argument reveals that it is

premature. If Askew wins against Lopez, and then if

Lopez later tries to collect from the Sheriff in supplemental proceedings, it would then be necessary to join

the County as a party to those later proceedings. But

that day may never come. For the present, the County

does not become an “indispensable” party just because

it may need to indemnify the Sheriff in the future, any

more than an insurance company must be included as a

defendant in a suit against its insured. We conclude,

therefore, that the County is not a party that must be

joined if feasible, within the meaning of Rule 19, in a

case brought against the Sheriff in his individual capacity.

In conclusion, Rule 19 requires that once a court determines that a party is a required party and it is feasible

for that party to be joined, the court “must order that the

person be made a party.” FED. R. CIV. P. 19(a)(2) (emphasis

added). Cook County fits that bill to a “T”. The district

court erred when it dismissed the action; it should

instead have ordered that Cook County be made a party.

If the case were still proceeding against both Lopez and

the Sheriff, that is all we would need to say. Unfortunately for Askew, however, matters are more compli-
No. 07-2190 11

cated. Askew’s brief on appeal includes an unambiguous

waiver of any claim that he might have had against the

Sheriff. It states that the district court was “correct in

dismissing plaintiff’s claim brought against the Sheriff in

his official capacity . . . .” As we have said, this is not

true. At this point, however, Askew cannot avoid this

waiver. On remand, for the reasons we have set forth, the

case may go forward against Lopez without including

the County as a party.

The judgment of the district court is therefore VACATED

and the case is REMANDED for further proceedings consistent with this opinion. Circuit Rule 36 shall apply

on remand.

5-18-09