United States District Court, Northern District of Illinois, E.D
October 21, 1982
DOUGLAS GATES, ETC., PLAINTIFF,
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
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
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
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 controlling
Seventh Circuit law. Thus the Complaint survives Montalbano's
motion as to that survived claim.
More complications are presented by the Wrongful Death Act
claim (if indeed Administrator Gates is making one, as is not
entirely clear). Illinois law treats the two-year period under
that Act as a condition to the right to sue, not simply a
statute of limitations. In re Johns-Manville Asbestosis Cases,
511 F. Supp. 1235, 1236-37 (N.D. Ill. 1981). Thus the basic
question Montalbano poses is the extent to which such a
state-established condition on access to the courts may properly
limit a federally established cause of action.
After Beard the United States Supreme Court, in Robertson v.
Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978)
upheld a Louisiana statute that caused a Civil Rights Act claim
to abate on death, where there was no claim the illegal conduct
caused that death.*fn4 This Court has already rejected
Montalbano's invitation to hold Administrator Gates's claim
similarly non-survivable. But Robertson does teach something
about the approach to federal-state law problems in civil rights
Under 42 U.S.C. § 1988, when federal law is "deficient" as to
"suitable remedies" in civil rights actions, federal courts are
the common law, as modified and changed by the
constitution and statutes of the State wherein the
court having jurisdiction of [the] civil . . . cause
is held, so far as the same is not inconsistent with
the Constitution and laws of the United States.
And Robertson applied that doctrine in this fashion (436 U.S.
at 594, 98 S.Ct. at 1997):
Our holding today is a narrow one, limited to
situations in which no claim is made that state law
generally is inhospitable to survival of § 1983
actions and in which the particular application of
state survivorship law, while it may cause abatement
of the action, has no independent adverse effect on
the policies underlying § 1983.
Viewed in that way the Illinois Wrongful Death Act appears
enforceable here. Certainly Illinois law is not "generally . . .
inhospitable to survival of § 1983 actions." Nor does application
of the Wrongful Death Act have any "independent adverse effect on
the policies underlying § 1983." Legitimate distinctions can be
made in policy terms between claims of wrongful death and like
claims that do not cause death — distinctions rooted in such
considerations as the greater difficulty in defending against
wrongful death claims, difficulties that may reasonably be
considered to increase with time. Such distinctions, viewed by
General Assembly as important enough to justify legislative
sanction, are not (in Section 1988 terms) "inconsistent with the
Constitution and laws of the United States."
Montalbano says (Mem. 4) the "application of Illinois' Wrongful
Death Act was, for some reason, not addressed by the Court in
Beard." That is no great mystery. Beard did not deal with the
Wrongful Death Act question because (563 F.2d at 332) "the
instant claims survived only insofar as they sought damages for
the physical injuries Beard suffered." Thus only survival of
Beard's claim, and not any wrongful death claim by his survivors,
was involved in that case, and this Court's conclusions on both
subjects are wholly consistent with Beard.
Because of Administrator Gates's default in meeting his
obligations to this Court, it has not had the benefit of testing
difficult legal problems in the crucible of the adversary system.
Nonetheless it must be concluded (though not without some
misgivings) that Montalbano has the better of it on his motion as
to the possible Wrongful Death Act claim.
For the reasons expressed in this memorandum opinion and order,
the Complaint is not dismissed as to defendant Montalbano. It
will be limited however to the survived claim of Gates himself,
not a Wrongful Death Act claim.