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.
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 ...