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GATES v. MONTALBANO

October 21, 1982

DOUGLAS GATES, ETC., PLAINTIFF,
v.
MICHAEL MONTALBANO, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

City of Dwight Police Officer Michael Montalbano ("Montalbano") has moved to dismiss the civil rights complaint of Douglas Gates ("Administrator Gates"), Administrator of the Estate of Waymon Gates ("Gates"). Administrator Gates sues under 42 U.S.C. § 1983 and 1985, claiming Montalbano's fatal shooting of Gates was without probable cause and a violation of Gates's constitutional rights.*fn1

Because the shooting occurred in March 1979 and this action was not filed until March 1982, Montalbano seeks dismissal under the two-year limitation period of the Illinois Wrongful Death Act, III.Rev.Stat. ch. 70, §§ 1-2. This Court established a briefing schedule on Montalbano's motion, to which only Montalbano has adhered, and this District Court's General Rule 13(b) authorizes the Court to proceed on the basis of Montalbano's unilateral submission.*fn2

As our Court of Appeals announced in Beard v. Robinson, 563 F.2d 331, 334-38 (7th Cir. 1977), federal civil rights actions like Gates's (there being no limitation specified within the Civil Rights Acts themselves):

1. survive the death of the injured party;

    2. look to Illinois law for the applicable statute
  of limitations; and
    3. come within the catchall five-year limitation
  period established by Ill.Rev. Stat. ch. 83, § 16,
  not the two-year limitation for tort actions
  specified in Ill.Rev. Stat. ch. 83, § 15.

Montalbano claims this case poses an added refinement not dealt with in Beard — the effect of the Wrongful Death Act.

Beard was startlingly similar to this litigation in both factual and legal terms:

    1. It too claimed a fatal shooting by a police
  officer (though there in alleged conspiracy with FBI
  agents) in violation of the decedent's constitutional
  rights.
    2. It too involved a suit filed some three years
  later — outside of two years but within five years of
  the date the cause of action accrued.

If Montalbano's legal analysis is right (because the Wrongful Death Act establishes a two-year time limit and would also have applied in Beard) Beard's administrator could not have sustained her lawsuit. But Montalbano has missed the entire distinction between the survival of the claim of a decedent for injuries resulting in death and the wrongful death claim of the decedent's next of kin (also to be asserted by the personal representative). Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974).*fn3

Administrator Gates's Complaint is not entirely clear, and the Court has not had the benefit of his statement of intention because of his delinquency in briefing. But under the liberal construction to be given complaints under Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957), Administrator Gates may be viewed as seeking to assert both claims (Complaint ¶ 17 alleges Gates survived the fatal shooting for some two hours, so that pre-death personal injury and pain and suffering would certainly be actionable).

As for Gates's own claim, Montalbano urges that this Court not follow Beard's ruling on the five-year limitation period or this Court's own decision in Larson v. Wind, 542 F. Supp. 25 (N.D.Ill. 1982) (following and applying Beard) as to survival. Those arguments misperceive the nature of the judicial structure, under which this Court is duty-bound to conform to ...


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