                                  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).
