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United States District Court, Northern District of Illinois, E.D

May 28, 1974


The opinion of the court was delivered by: Bauer, District Judge.


This cause comes on the motion of the defendants to dismiss the complaint.

This is an action seeking to redress the alleged deprivation of the plaintiff's civil rights guaranteed by the United States Constitution and protected by the Civil Rights Act of 1871, 42 U.S.C. § 1983. The jurisdiction of this Court is apparently based on 28 U.S.C. § 1331 and 1343.

The plaintiff in his complaint alleges, inter alia, the following facts:

  1. On April 23, 1971, and at all times mentioned
     herein, the plaintiff, Edward Amen, was on active
     duty with the United States Navy until his
     discharge on or about October 19, 1973. The
     defendants, Police Officer R. Crimmins and Police
     Lieutenant Gruber, were employed as police
     officers by the Village of Norridge, a municipal
     corporation, located in Cook County, Illinois.

  2. That on or about April 23, 1971, Police Officer R.
     Crimmins, without any probable cause whatsoever,
     arrested the plaintiff and charged the plaintiff
     with a violation of Chapter 95 1/2, Section
     11-504, of the 1969 Illinois Statutes, an offense
     commonly referred to as drag racing. That the
     plaintiff had not committed said crime nor
     operated a motor vehicle at the time of the
     alleged offense was a fact well known to said
     defendant, R. Crimmins.

  3. That as a result of said arrest, the plaintiff was
     deprived of his rights secured by the Constitution
     of the United States of America in that said
     arrest was without probable cause and that
     plaintiff was incarcerated in a cell located at
     the Village of Norridge Police Station having a
     common address of 4020 North Olcott, Norridge,
     Illinois. That while plaintiff was arrested and at
     the above mentioned premises in the presence of
     and under the supervision of Lieutenant Gruber,
     the plaintiff was severely beaten and assaulted
     about the head and body by Police Officer R.
     Crimmins. That during the above-mentioned arrest
     and incarceration of the plaintiff, said
     defendants refused to allow the plaintiff to make
     any contact, including by telephone, with his
     lawyer or any other person. That as a direct and
     proximate result of the said beating and physical
     violence administered to the plaintiff by the
     defendants, and each of them, the plaintiff was
     caused to suffer great pain and mental anguish,
     the plaintiff was rendered sick, sore, lame and
     disabled and in the future, the plaintiff will
     continue to suffer pain, mental anguish and be
     permanently disabled in that the plaintiff has
     suffered complete loss of hearing in his right ear
     as the result of a severed auditory nerve on his
     right side; and the plaintiff in the future will
     suffer loss of earnings and will incur great
     future medical expenses as the result of his said

The defendants, in support of their motion to dismiss, contend that the instant action is barred by the applicable statute of limitations, Chapter 83 § 15 of the Illinois Revised Statutes.

The plaintiff, in opposition to the instant motion, contends that the instant action is not barred by the applicable statute of limitations because the statute of limitations is tolled until October 19, 1973 pursuant to 50 U.S.C.App. § 525.*fn2

It is the opinion of this Court that the instant action is not barred by the applicable statute of limitations.

The statute under which this action was brought, 42 U.S.C. § 1983, does not provide for any period of limitations. In this situation, it is clear that the Court must look to the statute of limitations which Illinois would enforce had this action been brought there. O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); Hornsby v. Fishmead Company, 431 F.2d 865 (5th Cir. 1970); Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1959). Illinois has no statute of limitations directly applicable to an action alleging deprivation of civil rights. It is clear to this Court that the applicable statute of limitations in Illinois for an action under 42 U.S.C. § 1983 is Chapter 83 § 16 of the Illinois Revised Statutes,*fn3 which creates a five-year statutory period for bringing civil actions not otherwise provided for. See Duncan v. Nelson, 466 F.2d 939 (7th Cir. 1972); Wakat v. Harlib, supra. The defendants' contention that the two year statute of limitations of Section 15 of Chapter 83 is incorrect.*fn4 Since this action was brought well within the five-year limitations period, the statute of limitations is no bar.

Since the applicable statute of limitations is five years, this Court need not reach the question of whether the statute of limitations was tolled by 50 U.S.C.App. § 525. In passing, this Court will only note that Courts have liberally construed 50 U.S.C.App. § 525, providing for tolling of statutes of limitations with respect to actions by or against persons in active military service, in order to promote tranquility in military service and to protect a person from losing a meritorious claim because he was in active military service of his country. Carr v. United States, 422 F.2d 1007 (4th Cir. 1970).

Accordingly, it is hereby ordered that the defendants' motion to dismiss is denied.

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