The opinion of the court was delivered by: Robson, Chief Judge.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
The defendants move to dismiss this civil rights action. For
the reasons stated below, this court is of the opinion the
motion should be denied.
On May 5, 1971, the day upon which this two-year old matter
was set for trial, the defendants orally moved to dismiss this
action on the grounds that it is barred by the applicable
Illinois statute of limitations. This untimely motion was made
notwithstanding the fact that on February 5, 1971, the
defendants approved "as to form and substance" a pretrial
order stipulating that the jurisdiction of the court under the
federal civil rights act was not disputed. Pre-trial Order, p.
In support of this motion, the defendants rely upon
Ill.Rev.Stat. 1969, Ch. 85, § 8-102, which provides that in
tort actions involving public employees, a detailed notice of
alleged personal injuries resulting from any accident caused by
such employees must be served upon the employer public entity
within six months after the alleged accident.
Failure to timely serve this notice bars subsequent litigation
by operation of § 8-103 of the same statute. The defendants
also rely on § 8-101, which imposes a one-year statute of
limitations upon civil suits against public entities. The
defendants assert that these provisions are applicable here
because they were acting within the scope of their employment
as public employees during the arrest and detention of the
plaintiff, which is the basis of this suit. The defendants'
argument improperly presumes an ultimate issue, i.e., whether
or not the defendants acted in good faith in causing the arrest
and detention of the plaintiff pursuant to a void writ. These
defendants are accused of abusing powers conferred upon them by
state law in order to violate the constitutional rights of the
plaintiff. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5
L.Ed.2d 492 (1961); Bell v. Hosse, 31 F.R.D. 181, 183-184
(M.D.Tenn. 1962). These allegations do not remotely resemble a
tort action against a municipality for the negligence of its
employees. As stated by this court in its order of December 16,
1970, denying the defendants' earlier motion for summary
judgment, the issue whether or not the defendants knowingly
caused the execution of a void writ upon the plaintiff must be
resolved by the trier of fact.
It is undisputed that the plaintiff filed this action
approximately fifteen months after the alleged cause of action
accrued. In actions brought pursuant to 42 U.S.C. § 1983 and
1985, federal courts apply the state statute of limitations for
analogous actions. Baker v. F & F Investment, 420 F.2d 1191,
1193-1197 (7th Cir. 1970); Jones v. Jones, 410 F.2d 365, 366
(7th Cir. 1969). The statute of limitations most analogous to
this action, which is predicated upon an alleged incident of
false arrest and false imprisonment, is the two-year limitation
of Ill.Rev.Stat. 1969, Ch. 83, § 15, applicable to damage
actions for personal injury, false imprisonment and malicious
prosecution. Jones v. Jones, supra, at 367; Skrapits v. Skala,
314 F. Supp. 510, 511 (N.D.Ill. 1970). Since this action was
filed within two years after the alleged cause of action
accrued, the motion to dismiss is without merit.
It is therefore ordered that the motion to dismiss be, and
it is hereby denied.
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