The opinion of the court was delivered by: Crowley, District Judge.
MEMORANDUM OPINION AND ORDER
This is an action for damages resulting from the alleged
violations of plaintiff's First, Fifth, Eighth, Ninth and
Fourteenth Amendment rights. 42 U.S.C. § 1983. Jurisdiction is
asserted under 28 U.S.C. § 1331 and 1343.
The facts are fully set forth in Judge Will's Memorandum
Opinion of May 5, 1978. Briefly, the complaint alleges that
when plaintiff became a ward of the State of Illinois in 1960,
he was erroneously designated to be three years older than his
actual age. This error, which was not rectified until 1974,
resulted in classifying plaintiff as mentally retarded.
According to the complaint, because of the incorrect age
assignment and because of certain policies and practices of
Cook County, the State of Illinois, their officials and
employees, plaintiff was not provided adequate treatment and
was subjected to cruel and unusual punishment while residing
in the Arthur J. Audy Home, the Elgin State Mental Hospital
and the Chester State Mental Hospital.
The unconstitutional practices and policies include
indiscriminately mixing neglected and dependent children with
delinquent minors at the Audy Home, denying boarding rates in
excess of a standard rate for children with specialized needs
except under vague circumstances and employing methods of
"treatment" which were akin to punishment and bore no
relationship to care and rehabilitation.
Currently before the Court are the motions for summary
judgment by defendants the County of Cook and Albert
Neely.*fn1 Defendants' major contention is that the action
against them is barred by the statute of limitations.
All parties agree that the applicable statute of limitations
is Ill.Rev.Stat. ch. 83, § 16 (1977). Beard v. Robinson,
563 F.2d 331, 338 (7th Cir. 1977), cert. denied sub nom. Mitchell
v. Beard, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978).
That statute provides that the action must be brought within
five years of the date it accrued.
Defendants County of Cook and Neely, the Director of the
Children's Division of Cook County Department of Public Aid
during the time plaintiff was confined in the Audy Home,
contend that the limitations period should be calculated from
March, 1969, when plaintiff left the County's control. Since
the action was not brought against the County until February
1, 1977 and against Neely until February 17, 1978, it is
A special provision operates to lengthen the limitations
period. That statute provides:
If the person entitled to bring an action. . . is
at the time the cause of action accrued, within the
age of 18 years, or incompetent . . . he or she may
bring the action within 2 years after the
disability is removed. Ill.Rev.Stat. ch. 83, §
The parties disagree about the proper interpretation of the
Defendants contend that the plaintiff does not fall within
the age exception because he did not bring the action within
two years of his eighteenth birthday, even assuming he was
assigned an incorrect age. Additionally, defendants argue that
the incompetency exception of Section 22 only applies to
persons who have been adjudicated incompetent by a court, and
that no court has adjudged plaintiff incompetent. Thus, they
conclude, the exception does not apply.
Plaintiff responds that under the Juvenile Court Act, he
remains a minor until his twenty-first birthday. Ill.Rev.Stat.
ch. 37, § 701-13 (1977). However, plaintiff's principal
contention is that he was incompetent during the entire course
of events giving rise to this action and is incompetent still.
Whether or not plaintiff is considered a minor until his
twenty-first birthday under the Juvenile Court Act is
irrelevant to the application of Section 22. That provision
explicitly extends the limitations period for two years after
the plaintiff's eighteenth birthday. Therefore, a plaintiff's
physical age is the determinative criterion.
Assuming plaintiff's age was designated erroneously, he
became eighteen on March 3, 1974. Since the action was filed
after March 3, 1976, it was not brought within two years of
plaintiff's eighteenth birthday.
The question of whether plaintiff falls within the
incompetency exception of Section 22 does not lend itself to
facile resolution. Neither the statute itself nor the Illinois
courts provide guidance about the meaning of ...