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United States District Court, Northern District of Illinois, E.D

December 13, 1983


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


Howard Williams a/k/a Larry Williams ("Williams"), an inmate at the Menard, Illinois Correctional Center, seeks leave to file this pro se civil rights action under 42 U.S.C. § 1983 ("Section 1983") without prepayment of the filing fee. Williams' Complaint alleges claims against various Georgia governmental entities and public officials (collectively "State Defendants") for false arrest, malicious prosecution and unconstitutional conditions of confinement at the Fulton County Jail in Atlanta, Georgia. Williams also asserts a claim against Atlanta attorney Michael Edward Bergin ("Bergin") for refusing to return certain documents Williams had given him to prepare a civil rights complaint that was never filed.

State Defendants

Atlanta police arrested Williams May 17, 1980. Williams remained in the Fulton County Jail from the day of his arrest until the charges against him were dismissed June 11 or 12, 1980. On June 17, 1982 the Clerk docketed Williams' Complaint. Because the applicable statute of limitations period had run at the time Williams submitted his action for filing, he cannot maintain his claim against State Defendants.

Section 1983 itself has no self-contained limitations provision. In the absence of any controlling federal statute of limitations, 42 U.S.C. § 1988 ("Section 1988") directs the court to look to statutes of the forum state as the primary reference point in determining the applicable limitations period for a Section 1983 action.*fn1 See Board of Regents v. Tomanio, 446 U.S. 478, 483-86, 100 S.Ct. 1790, 1794-96, 64 L.Ed.2d 440 (1980); Beard v. Robinson, 563 F.2d 331, 334 (7th Cir. 1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978). In deciding whether a claim is time-barred, the court must consider not only the limitations period that would control an analogous action brought in a court of the forum state, but also any related state statutes (such as tolling statutes) that affect calculation of the limitation period. See Johnson v. Railway Express Agency, 421 U.S. 454, 463-64, 95 S.Ct. 1716, 1721-22, 44 L.Ed.2d 295 (1975).

In Illinois the statute of limitations generally applicable to Section 1983 claims is the residual five-year period under Ill. Rev.Stat. ch. 110, § 13-205. Beard, 563 F.2d at 338. But as Johnson reflects, "generally applicable" is not synonymous with "universally applicable." This Court must also consider the applicability of other limitations provisions, and such a provision is directly on point here in the form of Illinois' "borrowing statute," Ill.Rev.Stat. ch. 110, § 13-210:

  When a cause of action has arisen in a state or
  territory out of this State, or in a foreign
  country, and, by the laws thereof, an action
  thereon cannot be maintained by reason of the
  lapse of time, an action thereon shall not be
  maintained in this state.

Subject to a potential exception clearly not relevant here,*fn2 an applicable borrowing statute causes the forum's own limitations law to give way to the lex loci. See Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947); Burns v. Union Pacific R.R., 564 F.2d 20, 21-22 (8th Cir. 1977). Here the applicability of the Illinois borrowing statute is readily ascertainable. It has three conditions, two of which are apparent from the face of the statute:

    1. The cause of action must arise outside

    2. The cause of action must be barred by the
  law of the state where the cause of action

First, Williams' cause of action plainly arose in Georgia. Second, the limitation applicable to Section 1983 suits heard by federal district courts sitting in Georgia is the two-year period provided by Ga.Code Ann. § 3-1004. McMillian v. City of Rockmart, 653 F.2d 907, 910 (5th Cir. 1981). Although the fact of Williams' confinement tolled the running of the Georgia statute of limitations as to claims accruing against State Defendants while he was in jail, the tolling period ended when he was discharged from custody June 12, 1980. See Turner v. Evans, 251 Ga. 486, 306 S.E.2d 921 (1983), answering question certified from 704 F.2d 1212 (11th Cir. 1983). Because Williams docketed his complaint with this Court more than two years after his release from jail, his claims against State Defendants are time-barred under Georgia law. Thus the Complaint meets the first two prerequisites of the Illinois borrowing statute.

One requirement remains for consideration: As a matter of judicial construction, the Illinois Supreme Court applies the Illinois borrowing statute only to parties who were nonresidents of Illinois when the cause of action accrued. Miller v. Lockett, 98 Ill.2d 478, 75 Ill.Dec. 224, 457 N.E.2d 14 (1983), reconfirming the same holding in Coan v. Cessna Aircraft, 53 Ill.2d 526, 529, 293 N.E.2d 588, 590 (1973). From the Complaint it appears plain Williams did not reside in Illinois at that time,*fn4 and there is no question all defendants are nonresidents.

In sum, Illinois' borrowing statute does apply, and Georgia's law of limitations controls Williams' claims against State Defendants. Barred under Georgia's two-year statute of limitations, these claims are "frivolous" within the meaning of 28 U.S.C. § 1915(d).*fn5 See Major v. Arizona State Prison, 642 F.2d 311 (9th Cir. 1981).


Williams' claim against Bergin is not a federal matter, for state action is an essential element of a Section 1983 suit. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). Private counsel like Bergin do not act under color of state law. Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir. 1975).

Consequently this Court has no jurisdiction over Williams' charges against Bergin, essentially a claim for legal malpractice. Williams' remedy, if any, lies in the courts of Georgia.


Williams' Complaint is "frivolous" as a matter of law within the meaning established by Wartman v. Milwaukee County Court, 510 F.2d 130, 134 (7th Cir. 1975). His motion for leave to file in forma pauperis is denied.

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