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January 10, 1983


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


Douglas Gates ("Administrator Gates"), Administrator of the Estate of Waymon Gates ("Gates"), initially sued several defendants under 42 U.S.C. § 1983 and 1985, claiming the fatal shooting of Gates by City of Dwight Police Officer Michael Montalbano ("Montalbano") was without probable cause and a violation of Gates's constitutional rights. After the other defendants had been dismissed for other reasons, Montalbano moved to dismiss the complaint (filed some three years after the cause of action accrued) on limitations grounds. In Gates v. Montalbano, 550 F. Supp. 81 (N.D. 111. 1982) ("Opinion I") this Court dismissed the wrongful death claim of Gates's next of kin but denied dismissal as to Gates's own claim (which had survived his death and devolved upon Administrator Gates).

Administrator Gates has now moved for reconsideration of Opinion I's dismissal of the wrongful death claim.*fn1 For the reasons stated in this memorandum opinion and order, his motion is denied.

Opinion I

As for the wrongful death claim, however, Opinion I concluded failure to file the complaint within the two years specified in the Illinois Wrongful Death Act (the "Act," Ill.Rev.Stat. ch. 70, §§ 1-2) was fatal. Opinion I reasoned (1) Illinois law made the two-year period a condition to the right to sue, rather than a mere statute of limitations, and (2) that condition applied to a corresponding federal civil rights action because "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.'" 550 F. Supp. at 83 (quoting Robertson v. Wegmann, 436 U.S. 584, 594, 98 S.Ct. 1991, 1997, 56 L.Ed.2d 554 (1978)).


For the most part Administrator Gates's memorandum is a hodgepodge of unrelated — and irrelevant — Illinois case law dealing with aspects of the Act other than its two-year condition on filing suit. Only one arguably relevant contention seems to emerge from the confusing presentation. It appears to hinge on two propositions:

    1. One recent Illinois Supreme Court decision has
  departed (albeit for limited purposes) from the
  consistent line of authority treating the two-year
  period as a limitation on the very existence of the
  statutory right rather than a typical statute of
  limitations. See Wilbon v. D.F. Bast Co., Inc.,
  73 Ill.2d 58, 22 Ill.Dec. 394, 382 N.E.2d 784
     2. In accordance with Beard's rejection (563 F.2d
  at 337) of "the often strained process of
  characterizing civil rights claims as common law
  torts" for purposes of selecting a limitation period,
  civil rights claims of wrongful death are also subject
  to Section 16's general fiveyear limitation period and
  not the twoyear period imposed by the Act itself.
  Because the argument clearly fails on its second
  premise, the first need not be explored.

As Beard made clear (563 F.2d at 334), "the applicable limitations period is that which a court of the State where federal court sits would apply had the action been brought there, "But in Beard no state limitations period was specifically applicable to the civil rights claim at issue — a claim that, as Opinion I pointed out (550 F. Supp. at 82), was remarkably similar to the survived claim of Gates himself. Thus Beard had to choose between the two-year limitation period for personal torts (applicable only by analogy) and Section 16's catchall five-year period (applicable by virtue of its residual nature).*fn5 Not surprisingly policy considerations (such as the greater severity of constitutional deprivations vis-a-vis common law torts and the desirability of applying a uniform statute of limitations) occasioned Beards selection of Section 16.

By contrast, this Court need not resort to analogies or policy analysis to determine the appropriate statute of limitations in this case. If the two-year period prescribed by the Act is indeed a statute of limitations, it specifically applies here.*fn6 Administrator Gates is suing under Section 1983 for death caused by a "wrongful act, neglect or default" — the precise claim defined by the Act.*fn7 Thus whichever way the Act's twoyear restriction is characterized, the wrongful death claim asserted by Administrator Gates is time-barred. See Blake v. Katter, 693 F.2d 677, at 680 (7th Cir. 1982) (applying a specifically applicable statute of limitations to a civil rights claim — "we need not resort to analogies to determine which is the most appropriate statute of limitations").


Administrator Gates's motion for ...

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