Rashad Swanigan v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1261

RASHAD B. SWANIGAN,

Plaintiff-Appellant,

v.

CITY OF CHICAGO,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 4780 — Virginia M. Kendall, Judge.

ARGUED MAY 30, 2013 — DECIDED JANUARY 9, 2015

Before SYKES and HAMILTON, Circuit Judges, and

STADTMUELLER, District Judge.*

*

Of the United States District Court for the Eastern District of Wisconsin,

sitting by designation.

2 No. 12-1261

SYKES, Circuit Judge. Rashad Swanigan was arrested and

jailed for more than 50 hours by Chicago police officers who

mistakenly thought he was a serial bank robber known as the

Hard Hat Bandit. Following his release, Swanigan filed suit

against a number of individual officers and the City alleging

various constitutional violations under 42 U.S.C. § 1983 and

several state-law claims. After some procedural maneuvering,

Swanigan’s Monell policy-or-practice claim against the City

became a separate lawsuit, which was consolidated before the

same judge and stayed while the suit against the individual

officers proceeded. A jury found for Swanigan against seven

individual officers on one of the constitutional claims, award-

ing $60,000 in damages.

Swanigan then turned his attention back to the Monell suit.

He moved to lift the stay and advised the court that he

intended to amend his complaint in light of the jury’s verdict.

The judge interpreted the motion as a waiver of all but two of

Swanigan’s theories of Monell liability and held that the two

remaining aspects of the claim were not justiciable. This ruling

was based on the City’s promise to indemnify its officers in the

first suit and to pay nominal damages of $1 for any Monell

liability. The judge also held—sua sponte—that one of the two

Monell claims failed to state a claim on which relief could be

granted. For these reasons, the judge denied Swanigan’s

motion to lift the stay and dismissed the Monell suit in its

entirety. Swanigan appealed.

Several procedural missteps require a remand here. First,

the judge wrongly assumed that Swanigan was waiving all but

two theories of Monell liability and dismissed the entire suit

No. 12-1261 3

based on that mistaken premise. Moreover, under

Rule15(a)(1)(B) of the Federal Rules of Civil Procedure,

Swanigan was entitled to amend his complaint within 21 days

of a responsive pleading or motion to dismiss, which would

have been the next step after the stay was lifted, as it should

have been. And a sua sponte dismissal for failure to state a

claim—a merits adjudication—is improper.

Swanigan’s Monell suit may indeed face some jurisdictional

and merits hurdles, but the judge jumped the gun in dismiss-

ing it. The case was stayed in its infancy while the claims

against the individual officers proceeded, and Swanigan was

entitled to revive it and amend his complaint to try to plead a

justiciable claim once the court and the parties returned to it.

I. Background

On the afternoon of August 22, 2006, Chicago police officers

Robert Trotter and Thomas Muehlfelder were patrolling the

city’s north side and saw a man later identified as Swanigan

standing outside a bank on Elston Avenue and Pulaski Road.

The officers had been told to be on the lookout for a serial bank

robber known as the Hard Hat Bandit, who was wanted for

robbing several banks while wearing a yellow hard hat.

Swanigan wasn’t wearing a hard hat, but the officers believed

that he matched the general description of the Hard Hat

Bandit. They watched as he entered the passenger side of a car.

A computer check of the car’s license-plate number revealed

that the car’s registration was suspended based on an insur-

ance violation, so the officers approached Swanigan and asked

for his insurance card.

4 No. 12-1261

Swanigan told the officers that the car was insured but

could not produce proof of insurance. So the officers arrested

him and searched the vehicle. In the back seat they discovered

several hard hats (one was yellow) and also a knife. Thinking

that they’d just cracked the Hard Hat Bandit case, the officers

sought and received approval to book Swanigan for traffic

violations and for unlawful use of a weapon. As it turned out,

however, Swanigan was not the Hard Hat Bandit but an

innocent construction worker who was at the bank cashing

some checks.

The officers wanted to investigate whether Swanigan was

responsible for a recent robbery of a Popeye’s Chicken restau-

rant that was linked to the Hard Hat Bandit. Swanigan would

have been released fairly quickly on the offenses for which he

was arrested, so the officers put a “hold” on him to ensure that

they would have time to investigate him for the robberies they

suspected him of committing. The hold prevented his release

from custody and also delayed his appearance in court for a

probable-cause determination.

Over the course of the next day, Swanigan was placed in

lineups to determine if any witnesses could implicate him in

the Popeye’s Chicken robbery. A few witnesses initially

identified Swanigan as the robber. Swanigan claimed that he

was placed in other lineups and treated poorly throughout his

detention. He spent another night in jail.

On August 24, 2006, an Assistant State’s Attorney reviewed

Swanigan’s case. She interviewed the witnesses in the Popeye’s

Chicken robbery and learned that their identifications were

shaky; one retracted the identification altogether. The Assistant

No. 12-1261 5

State’s Attorney declined to charge Swanigan with the

Popeye’s Chicken robbery, and he was released from custody

that evening. All told, he had been in custody for about

51 hours with no judicial determination of probable cause.

After Swanigan’s release, the police department’s Case

Supplementary Report for the Popeye’s Chicken robbery was

marked “Cleared—closed other exceptional.” According to

Swanigan, that designation—along with the accompanying

narrative—identifies him as the robber, states that employees

of the restaurant picked him out of a lineup, and indicates that

the police closed the investigation because the prosecutor

refused to approve charges, due in part to unreliable witness

identifications. Swanigan contends that the report is available

to law-enforcement personnel and the general public and

causes him harm because it misidentifies him as the robber.

In October 2006 Chicago police apprehended the real Hard

Hat Bandit. The traffic and weapons charges against Swanigan

were dropped.

Swanigan filed suit in the Northern District of Illinois

alleging constitutional claims under § 1983 and several state-

law causes of action stemming from his arrest and extended

detention. After two amendments, the complaint alleged

nine counts against 20 named police officers, an unknown

number of unnamed police officers, and the City of Chicago.

Swanigan moved to amend his complaint a third time to add

a § 1983 policy-or-practice claim against the City under

Monell v. Department of Social Services of the City of New York,

436 U.S. 658 (1978). The district court disallowed the

6 No. 12-1261

amendment, reasoning that it represented a significant shift in

focus too late in discovery.

Swanigan then filed a second lawsuit against the City

containing the Monell claim that he’d tried unsuccessfully to

add to the first. He alleged in the second suit that the constitu-

tional violations stemming from his arrest and detention were

caused by one or more of nine city policies, customs, or

practices. The Monell suit also alleged that the officers had

failed to pursue “obvious investigative techniques” that would

have led to his earlier release from custody, and that the City

failed to adequately train, supervise, and discipline its officers.

The new lawsuit was initially assigned to another judge.

The City moved pursuant to Rule 42(a) of the Federal Rules of

Civil Procedure and Local Rule 40.4 to reassign and “consoli-

date” the second suit before the judge who was hearing the

first case. That motion was granted, although the cases

maintained separate case numbers and dockets. The judge

stayed proceedings in the Monell suit until the conclusion of the

case against the individual officers. In the same order, the

judge also directed the City to inform the court “whether it will

enter into [a] … stipulation” to indemnify the officers for any

award of compensatory damages and pay nominal damages of

$1 if the officers were found liable to the plaintiff.

More specifically, the “stipulation”—proposed and pre-

pared by the judge—was titled “Defendant City of Chicago’[s]

Certification of Indemnification” and provided that

1. The City of Chicago agrees to indemnify the

individual defendant Chicago police officers

No. 12-1261 7

for any judgment of compensatory damages

that may be entered against them in this case.

2. If [Swanigan] prevails in his section 1983

action against individual defendant Chicago

police officers, the City of Chicago agrees to

indemnify the individual defendants for

reasonable attorney fees and costs that

[Swanigan] may be entitled to recover pursu-

ant to 42 U.S.C. § 1988. This agreement is

exclusive of such fees and costs that may be

attributable to an award of punitive damages

against the individual defendants.

3. The City also undertakes to pay nominal

damages (not to exceed one dollar) if any

compensatory damage award is entered

against the individual defendants.

A week later the court entered a minute order stating that

“[t]he City informs the Court that it has accepted the stipula-

tion to indemnify the defendant officers.”

The first suit proceeded to motions for summary judgment.

The judge granted summary judgment in favor of the defen-

dants on all counts except for two of Swanigan’s claims under

§ 1983. On the surviving counts, the judge (1) denied the

officers’ motion for summary judgment on Swanigan’s claim

for false arrest; (2) found four officers liable on the claim

8 No. 12-1261

related to Swanigan’s extended detention;1 and (3) held that

the liability of four other officers on the extended-detention

claim would be determined at trial, as would the issue of

damages.

After a five-day trial, a jury rejected Swanigan’s claim for

false arrest and found three more officers liable for Swanigan’s

extended detention. The latter finding meant that Swanigan

prevailed against seven individual officers on his claim for an

unlawfully extended detention. The jury awarded Swanigan

$60,000 in compensatory damages and no punitive damages,

and the court later awarded Swanigan his costs and attorney’s

fees as the prevailing party.

As posttrial proceedings were underway in the first case,

Swanigan turned his attention back to the Monell suit. He

moved to lift the stay and explained that he intended to amend

his complaint “in order to narrow the issues, consistent with

the jury verdict in [the first suit].” He also said he wanted to

“amend the remedies portion of his complaint in order to

clarify that, in addition to damages, nominal or otherwise, he

is also seeking declaratory and/or injunctive relief.”

1

See Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (requiring judicial determina-

tions of probable cause to be “prompt”); County of Riverside v. McLaughlin,

500 U.S. 44, 56 (1991) (holding that as a general matter, “a jurisdiction that

provides judicial determinations of probable cause within 48 hours of

arrest” will comply with Gerstein’s promptness requirement); Lopez v. City

of Chicago, 464 F.3d 711, 714 (7th Cir. 2006) (providing that delays taking

longer than 48 hours must be justified by the existence of emergency or

other extraordinary circumstances).

No. 12-1261 9

The City opposed the motion to lift the stay. Attached as an

“exhibit” to its memorandum in opposition to the motion was

a proposed “Certification of Entry of Judgment” stating in

relevant part:

3. Without admitting [Swanigan’s] allegations

of section 1983 municipal liability, the City of

Chicago agrees to entry of judgment against the

City for compensatory damages. The City specif-

ically waives its right under Monell v. New York

City Dept. of Social Services not to be held liable in

damages under section 1983 without proof that

the City by its “policy, custom or practice,” and

with the requisite degree of culpability, caused

the alleged constitutional violation. …

4. Further, the City of Chicago agrees to

indemnify [the individual defendants] for the

judgment of compensatory damages that was

entered against them in this case. The City of

Chicago also agrees to indemnify these [d]efend-

ants for reasonable attorney’s fees and costs to

which [Swanigan] may be entitled pursuant to

42 U.S.C. § 1988. This indemnification agreement

is both unconditional and irrevocable.

5. Additionally, the City of Chicago agrees to

pay nominal damages (not to exceed one dollar),

as [Swanigan] has proven a violation of a sub-

stantive constitutional right and [an] actual

compensable injury.

10 No. 12-1261

The proposed Certification thus largely duplicated the

court-drafted “stipulation” to which the City had agreed in

principle in the first suit; the main difference was that the City

agreed to entry of judgment against it, whereas the stipulation

had involved only an agreement to indemnify the officers and

pay nominal damages. The City asked the court to deny the

motion to lift the stay, accept the proposed Certification, and

dismiss the case for lack of a justiciable case or controversy.

Swanigan filed a reply arguing that the stay should be lifted

to permit the case to proceed in the ordinary course and

reiterating that he intended to file an amended complaint. He

specifically flagged two of the 11 possible theories of liability

identified in his original complaint: (1) the officers acted

pursuant to a city policy allowing them to “delay release of a

detainee arrested without a warrant solely for the purpose of

investigating the detainee for uncharged and unrelated

crimes,” even if the delay extends past the next court call at

which the suspect could receive a probable-cause determina-

tion; and (2) the officers acted pursuant to a city policy allow-

ing them to mark a case report as “cleared closed,” a designa-

tion that listed the suspect as an identified criminal offender

even when the State’s Attorney refused to prosecute the case.

(We’ll refer to these as the “hold claim” and the “cleared-

closed claim.”) After briefly touching on the potential viability

of these theories, Swanigan again asked that “the stay of his

Monell claim be lifted in order that his case may proceed.”

No. 12-1261 11

The judge denied the motion to lift the stay and dismissed

the case in its entirety.2 The judge concluded that based on the

City’s Certification, Swanigan would receive in the first suit all

the monetary relief he could recover on the hold claim or the

cleared-closed claim, which meant that any claim for damages

in the Monell suit was moot. The judge also concluded that

Swanigan lacked standing to pursue injunctive relief on either

the hold claim or the cleared-closed claim. For these reasons—

mootness and lack of standing—the judge held that neither

claim presented a justiciable case or controversy. In addition,

the judge rejected Swanigan’s challenge to the cleared-closed

policy for failure to state a claim—an argument that the City

never made.

Although Swanigan gave no indication that he was waiving

any of his other asserted grounds for Monell liability, the judge

treated the resolution of these two claims as dispositive of the

2

The court’s order does not specify whether the dismissal was with or

without prejudice. As we explain in the text, to the extent that the judge

held that the hold claim and the cleared-closed claim were jurisdictionally

defective, the dismissal was without prejudice. See FED. R. CIV. P. 41(b)

(“Unless the dismissal order states otherwise, … any dismissal not under

this rule—except one for lack of jurisdiction, improper venue, or failure to

join a party under Rule 19—operates as an adjudication on the merits.”).

But the judge also held that the cleared-closed claim failed to state a claim

on which relief can be granted, so to that extent the dismissal was with

prejudice. Either way, the court’s order was “conclusive in practical effect,”

meaning that our jurisdiction under 28 U.S.C. § 1291 is secure. Schering-

Plough Healthcare Prods., Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 507 (7th

Cir. 2009) (internal quotation marks omitted).

12 No. 12-1261

entire suit and entered final judgment dismissing the case.

Swanigan appealed.

II. Discussion

Multiple procedural errors infect this judgment. First, the

dismissal of Swanigan’s cleared-closed claim for failure to state

a claim under Rule 12(b)(6) was procedurally defective. The

City’s response in opposition to Swanigan’s motion to lift the

stay made no mention of Rule 12(b)(6), did not address the

relevant pleading or substantive legal standards, and did not

discuss the plausibility of the allegations in Swanigan’s

complaint. As the City itself states, “[i]n responding to

Swanigan’s motion to lift the stay, the City clearly requested

dismissal of his Monell claims based upon lack of Article III

standing,” not based on Swanigan’s failure to state a claim.

A district court cannot sua sponte dismiss a complaint on

the merits without notifying the parties and allowing the

plaintiff an opportunity either to cure the defect in the com-

plaint or at least a chance to defend the merits of his claim. See,

e.g., Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 765–66 (7th Cir.

2006). Here, the judge gave no indication that she was going to

evaluate whether any aspect of Swanigan’s Monell claim held

up under Rule 12(b)(6) scrutiny. The court’s abrupt, sua sponte

merits dismissal is even more problematic given Swanigan’s

stated desire to amend his complaint. At the very least, the

judge should not have addressed and dismissed the cleared-

closed claim for failure to state a claim.

No. 12-1261 13

The jurisdictional dismissal was also procedurally irregular.

The Monell case was frozen in time while the parties litigated

the claims against the officers in the earlier-filed case. When

that case concluded, the court had before it a simple motion to

lift the stay in the Monell suit, not a Rule 12(b)(1) motion to

dismiss the suit for lack of subject-matter jurisdiction. It’s true

that in opposing Swanigan’s motion to lift the stay, the City

raised justiciability arguments based on mootness and lack of

standing, both of which affect a federal court’s jurisdiction.

And the judge credited these arguments, holding that the

City’s proposed Certification mooted any Monell claim for

damages and that Swanigan lacked standing to pursue

injunctive relief on his challenge to the City’s hold policy and

cleared-closed policy. Based on these rulings, the judge

dismissed the case in its entirety.

There are several problems with this approach. First, the

court’s mootness holding treats the Certification as though it

were a Rule 68 offer of judgment. See FED. R. CIV. P. 68(a)

(providing that a defendant may “offer to allow judgment on

specified terms, with the costs then accrued,” and that accep-

tance of such an offer can lead to termination of the lawsuit). It

was not.

In this circuit an unaccepted Rule 68 offer that meets or

exceeds all the relief the plaintiff has demanded eliminates any

remaining case or controversy. See, e.g., Damasco v. Clearwire

Corp., 662 F.3d 891, 895 (7th Cir. 2011) (“‘Once the defendant

offers to satisfy the plaintiff’s entire demand, there is no

dispute over which to litigate, and a plaintiff who refuses to

acknowledge that loses outright, under Fed. R. Civ. P. 12(b)(1),

14 No. 12-1261

because he has no remaining stake.’” (quoting Rand v.

Monsanto Co., 926 F.2d 596, 598 (7th Cir. 1991)); Thorogood v.

Sears, Roebuck & Co., 595 F.3d 750, 752 (7th Cir. 2010) (“The

offer exceeded the amount in controversy and so the case was

moot.”); Greisz v. Household Bank (Ill.), 176 F.3d 1012, 1015 (7th

Cir. 1999); Alliance to End Repression v. City of Chicago, 820 F.2d

873, 878 (7th Cir. 1987). The reasoning behind these cases is

straightforward: “You cannot persist in suing after you’ve

won.”3 Greisz, 176 F.3d at 1015.

By the same token, however, “the rejection of an offer of

less than the complete relief sought by a suit does not prove

that there is no dispute between the litigants.” Id. The clear

import of our caselaw in this area is that a Rule 68 offer of

judgment must completely satisfy the plaintiff’s demand in

3

The circuits are split on whether an unaccepted Rule 68 offer moots the

plaintiff’s case. See Scott v. Westlake Servs. LLC, 740 F.3d 1124, 1126 n.1 (7th

Cir. 2014) (explaining the split). In Genesis Healthcare Corp. v. Symczyk,

133 S. Ct. 1523 (2013), the Supreme Court seemed poised to resolve the split

but in the end decided the case on narrower grounds. See id. at 1532; see also

Scott, 740 F.3d at 1126 n.1. Four Justices dissented in Genesis Healthcare,

sharply criticizing our approach. See Genesis Healthcare, 133 S. Ct. at 1533–34

(Kagan, J., dissenting) (“An unaccepted settlement offer—like any

unaccepted contract offer—is a legal nullity, with no operative effect. … So

a friendly suggestion to the Third Circuit: Rethink your mootness-by-

unaccepted-offer theory. And a note to all other courts of appeals: Don’t try

this at home.”). Based on Justice Kagan’s dissent, we noted in Scott that

“there are reasons to question our approach to the problem.” 740 F.3d at

1126 n.1. Here, as in Scott, the parties do not question our Rule 68 prece-

dent, so we do not address it further. See also Smith v. Greystone Alliance,

LLC, 772 F.3d 448, 450 (7th Cir. 2014) (noting the views of the dissenting

Justices in Genesis Healthcare but deferring the issue).

No. 12-1261 15

order to eliminate a justiciable controversy. See, e.g., Smith v.

Greystone Alliance, LLC, 772 F.3d 448, 450 (7th Cir. 2014)

(explaining that a jurisdictional dismissal is proper only if the

defendant satisfies the plaintiff’s entire demand); Scott v.

Westlake Servs. LLC, 740 F.3d 1124, 1126 (7th Cir. 2014) (“[I]f the

defendant offers to pay only what it thinks might be due, the

offer does not render the plaintiff’s case moot. … The plaintiff’s

stake is negated only if no additional relief is possible.”).

An initial difficulty with treating the Certification as an

offer of judgment under Rule 68 is that it wasn’t styled as a

Rule 68 offer, and the City actually denies that it functioned as

one. On this point the City’s position has fluctuated. At oral

argument the City stated that the district court construed the

Certification as “a Rule 68 [offer of judgment] in substance.”

The City retracted that statement in a Rule 28(j) letter, explain-

ing that it routinely agrees to stipulations like this one and that

“[d]istrict court judges prefer various titles for this document.”

The City continued: “While these proposals have features in

common with Rule 68 offers of judgment, they provide an

independent basis for the court to resolve the case in circum-

stances where a Rule 68 offer might not be appropriate.”

Without further elaboration, the City asserted in its Rule 28(j)

letter that these “effort[s] to streamline the litigation” have

“ample support” in Rules 1 and 42 of the Federal Rules of Civil

Procedure.4

4

Rule 1 provides that the Rules of Civil Procedure “should be construed …

to secure the just, speedy, and inexpensive determination of every action.”

FED. R. CIV. P. 1. Rule 42(a) governs consolidation of cases. FED. R. CIV.

(continued...)

16 No. 12-1261

This new justification for dismissing Swanigan’s case comes

far too late and is so woefully undeveloped that it cannot be

taken seriously. We decline to consider it.

Even assuming that the district court indeed construed the

Certification as a Rule 68 offer “in substance,” the court erred

in holding that it mooted Swanigan’s case. Municipalities “can

be sued directly under § 1983 for monetary, declaratory, or

injunctive relief.”5 Monell, 436 U.S. at 690. Swanigan sought the

full range of remedies, but the Certification offered only

monetary relief in the form of a promise to indemnify the

officers for the judgment in the first suit and pay nominal

damages of $1 for any Monell liability.6

The City acknowledges the point but argues that the

Certification offered Swanigan all the relief that he was entitled

to on the hold claim and the cleared-closed claim. But we

repeat: “[T]he defendant must satisfy the plaintiffs’ demands;

only then does no dispute remain between the parties.” Gates v.

4

(...continued)

P. 42(a) (authorizing the district court to consolidate actions that “involve

a common question of law or fact” and “issue any other orders” in

consolidated cases “to avoid unnecessary cost or delay”).

5

Though not for punitive damages. See City of Newport v. Fact Concerts, Inc.,

453 U.S. 247, 271 (1981).

6

Swanigan’s original complaint requested damages and “such other and

further relief as this Court may deem just and proper,” but he explained in

his motion to lift the stay that he intended to clarify in an amended

complaint that he was “also seeking declaratory and/or injunctive relief.”

No. 12-1261 17

Towery, 430 F.3d 429, 432 (7th Cir. 2005). The City did not do

that here. As we explained in Scott:

[I]f the defendant offers to pay only what it

thinks might be due, the offer does not render

the plaintiff’s case moot. Gates v. Towery, 430 F.3d

429, 431–32 (7th Cir. 2005). In that situation, the

plaintiff still has a stake in the action because she

may obtain additional relief if she prevails. The

plaintiff’s stake is negated only if no additional

relief is possible. Id. To hold otherwise would

imply that any reasonable settlement offer moots

the plaintiff’s case or that long-shot claims are

moot rather than unlikely to succeed. Id. at 432.

“That’s not the way things work: A bad theory

(whether of liability or of damages) does not

undermine federal jurisdiction.” Id.

740 F.3d at 1126–27; see also Smith, 772 F.3d at 450 (“A defen-

dant cannot have the suit dismissed by making an offer limited

to what it concedes the plaintiff is entitled to receive, even if

the defendant happens to be right about its view of the

plaintiff’s entitlement … .”).

This highlights two more procedural irregularities in the

district court’s order. After concluding that the Certification

mooted the Monell claim for monetary relief, the judge held

that Swanigan lacked standing to seek an injunctive remedy

against either the hold policy or the cleared-closed policy and

on that basis held that the entire case was nonjusticiable.

18 No. 12-1261

This ruling wrongly assumed that Swanigan had waived all

other possible theories of Monell liability. He clearly did not.

All he said was that he wanted to narrow the Monell suit in

light of the verdict in the earlier suit, and he mentioned the

hold policy and the cleared-closed policy to illustrate poten-

tially viable claims that he might pursue. But he gave no

indication that he was waiving any other aspects of his Monell

claim. To the contrary, he reiterated his intention to amend his

complaint to focus and refine the claim.

The procedural challenges in this case stem in part from the

complex development of § 1983 doctrine from Monroe v. Pape,

365 U.S. 167, 187 (1961) (municipalities not liable under § 1983),

to Monell, 436 U.S. at 694–95 (municipalities may be liable

under § 1983 for injuries caused by municipal policy, custom,

or practice), to the establishment of the qualified-immunity

defense for individual defendants, see, e.g., Anderson v. Creigh-

ton, 483 U.S. 635, 641 (1987).

If a § 1983 plaintiff seeks only monetary relief, and if a

municipal defendant is willing (or required) to indemnify

individual defendants for compensatory damages as well as an

award of attorney’s fees and costs, a Monell claim against the

municipality will offer a prevailing plaintiff no additional

remedy (aside, perhaps, from nominal damages). In such cases

there is no need for the parties to spend time and money

litigating a Monell claim. If the plaintiff fails to prove a viola-

tion of his constitutional rights in his claim against the individ-

ual defendants, there will be no viable Monell claim based on

the same allegations. See, e.g., City of Los Angeles v. Heller,

475 U.S. 796, 799 (1986). Accordingly, the judge’s decision to

No. 12-1261 19

stay the Monell suit while the claims against the individual

officers were litigated to judgment was sensible, especially in

light of the volume of civil-rights litigation that district courts

must manage.

In some civil-rights cases, however, a verdict in favor of

individual defendants would not necessarily be inconsistent

with a plaintiff’s verdict on a factually distinct Monell claim.

See, e.g., Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 305

(7th Cir. 2009). In still other cases, the plaintiff may want an

injunction against future constitutional violations or some

other equitable remedy, and he may be willing to invest the

time and effort needed to prove his entitlement to that relief. In

such cases, and this is one, the plaintiff is entitled to try to

prove his Monell claim. Some cases have remedial import

beyond the individual plaintiff’s claim for monetary damages,

and § 1983 provides a vehicle for obtaining other judicial relief

against governmental policies that violate constitutional rights.

See generally David F. Hamilton, The Importance and Overuse of

Policy and Custom Claims: A View From One Trench, 48 DEPAUL

L. REV. 723, 734–35 (1999).

District courts, municipal defendants, and even plaintiffs

have incentives to minimize duplication of effort in § 1983

cases that combine claims against individual public officials

and a municipal defendant. The stipulation and stay of the

Monell suit in this case achieved the goal of avoiding unneces-

sary complexity and effort. But district courts cannot prevent

plaintiffs from pursuing potentially viable Monell claims that

seek additional equitable relief or are distinct from the claims

against individual defendants. The procedures used in this case

20 No. 12-1261

prevented a fair test of Swanigan’s Monell theories, and that

necessitates a remand.

Recall that the Monell suit was stayed from the start. No

responsive pleading or motion to dismiss had been filed.

Swanigan was simply asking to resuscitate the suit, and under

Rule 15(a)(1)(B), once the City filed a responsive pleading or

motion to dismiss, Swanigan was entitled to amend his

complaint to flesh out his original claims or attempt to cure any

jurisdictional or legal defects.

Indeed, whether to allow an amendment was out of the

court’s hands entirely. As amended in 2009, Rule 15 provides

as follows:

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A

party may amend its pleading once as a

matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a

responsive pleading is required,

21 days after service of a responsive

pleading or 21 days after service of a

motion under Rule 12(b), (e), or (f),

whichever is earlier.

FED. R. CIV. P. 15(a)(1) (2009). Because no responsive pleading

or motion to dismiss had been filed, the 21-day clock under

Rule 15(a)(1)(B) never started and Swanigan retained the right

No. 12-1261 21

to amend his complaint.7 The district court voided that right by

dismissing the Monell suit prematurely. After learning that

Swanigan wanted to amend his complaint, the district court

should have lifted the stay and waited for the amended

complaint before evaluating any jurisdictional impediments to

hearing the case.

We do not doubt that Swanigan’s Monell claim faces

jurisdictional and substantive legal barriers. Principles of

double recovery may prevent him from recovering damages to

the extent that his injuries are already covered by his successful

claim in the earlier suit. He may not be able to establish

standing to sue for injunctive relief. But the time to evaluate

any jurisdictional or legal impediments to the Monell suit is

after Swanigan has amended his complaint, as Rule 15(a)(1)(B)

entitles him to do.

7

The City argues that its memorandum in opposition to Swanigan’s motion

to lift the stay was a “responsive pleading” and that Swanigan therefore lost

his right to amend under Rule 15(a)(1)(B). This argument is frivolous.

Rule 7 lists the papers that qualify as “pleadings,” see FED. R. CIV. P. 7(a),

and the City’s filing is not on the list. Simply put, the 21-day automatic

amendment period under Rule 15(a)(1)(B) was never triggered here. The

district court stayed all proceedings in the Monell suit, and the City’s

memorandum in opposition to Swanigan’s motion to lift the stay was not

an answer, a motion to dismiss, or anything other than what it claimed to

be.

The City also suggests that Swanigan’s complaint in the Monell Suit was

functionally a fourth amended complaint in the earlier suit because the two

cases were “consolidated.” Whatever “consolidated” might mean in the

context of this case, we think it clear that the consolidation didn’t com-

pletely merge the cases. Both cases maintained separate docket numbers

and were disposed of by separate judgments at separate times.

22 No. 12-1261

For all the foregoing reasons, the district court erred in

dismissing the Monell suit. Accordingly, we VACATE the

judgment and REMAND with instructions to grant Swanigan’s

motion to lift the stay and accept an amended complaint

consistent with Rule 15(a)(1)(B).