United States District Court, Northern District of Illinois, E.D
December 13, 1983
HOWARD WILLIAMS, PLAINTIFF,
FULTON COUNTY JAIL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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.
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
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
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
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.