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

July 23, 1985


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


Paul H. Moore (Moore) brought this civil rights action pursuant to 42 U.S.C. § 1983. Moore alleges that the six defendants violated his constitutional rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments. The case is before the court on defendants' two motions to dismiss the complaint.

I. Factual Background

The complaint contains the following allegations. Moore was formerly employed as an investigator by the public defender's office of McHenry County, Illinois. In 1979, defendant Theodore Floro (Floro) served as the state's attorney of McHenry County. On December 21, 1979, Moore attended Floro's Christmas party. At the party, Floro angrily told Moore to leave "before I break your skull." Complaint at ¶ 7. After complying with this threat, Moore was beaten by defendants Charles Terrell (Terrell) and Keith Grabrowski (Grabrowski), deputy sheriffs of McHenry County. Id. at ¶ 8. Terrell and Grabrowski acted with the belief that they would be immune from prosecution because of Floro's disdain of Moore. Id. at ¶ 9. As a result of the beating, Moore suffered severe head injuries, including a fractured skull. Id. at ¶ 8.

Immediately after the beating, Moore was taken into custody by officers of the Woodstock police department under the direction of defendant Michael Fischer (Fischer), a police officer. Id. at ¶ 10. While at the police station, Moore requested medical treatment; neither Fischer nor Floro responded. Id. at ¶¶ 11-12. In addition, defendant Steven Bozer (Bozer), another police officer, took a photograph of Moore. Under Fischer's supervision, Bozer only photographed the side of Moore's face unscathed by the beating. Id. at ¶ 13.

As a result of this incident, Moore was charged with aggravated battery. In November, 1980, Moore was acquitted after a criminal trial at which he testified. Id. at ¶ 14. Subsequently, because Moore's successful trial defense embarrassed Floro, defendant Robert Willbrandt (Willbrandt), the public defender of McHenry County, discharged Moore from his employment. Id. at ¶¶ 14-16.

Moore brought this § 1983 action on December 19, 1984. Floro moves to dismiss the complaint for failure to state a cause of action. The remaining defendants separately move to dismiss the complaint on the basis of untimeliness.

II. Discussion

On April 17, 1985, the Supreme Court held for the first time that § 1983 claims are best characterized as personal injury actions for limitations purposes. Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985). Consequently, in furtherance of the federal policies of uniformity, certainty, and the minimization of unnecessary litigation, the Supreme Court upheld the application of a state personal injury statute of limitations to a § 1983 action. Id. at 1947-49. The threshold question presented by this case is whether Wilson v. Garcia should be applied retroactively to bar Moore's suit.*fn1

A. Retroactivity

Because prospective-only application is the exception rather than the rule, the party seeking to invoke the principle of nonretroactivity bears the burden of proving that such limited application is justified. See Valencia v. Anderson Bros. Ford, 617 F.2d 1278, 1288 (7th Cir. 1980), rev'd on other grounds, 452 U.S. 205, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981). The Supreme Court has delineated the following tripartite analysis to determine whether a civil, nonconstitutional judicial decision will be denied full retroactive effect:

  First, the decision to be applied nonretroactively
  must establish a new principle of law, either by
  overruling clear past precedent on which litigants
  may have relied . . . or by deciding an issue of
  first impression whose resolution was not clearly
  foreshadowed. . . . Second, it has been stressed that
  "we must . . . weigh the merits and demerits in each
  case by looking to the prior history of the rule in
  question, its purpose and effect, and whether
  retrospective operation will further or retard its
  operation". . . . Finally, we have weighed the
  inequity imposed by retroactive application, for
  "[w]here a decision of this Court could produce
  substantial inequitable results if applied
  retroactively, there is ample basis in our cases for
  avoiding the `injustice or hardship' by a holding of

Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) (citations omitted).*fn2 This approach has "`consistently been utilized where changes in statutes of limitations or other aspects of the timeliness of a claim are at issue.'" E.E.O.C. v. Gaddis, 733 F.2d 1373, 1377 (10th Cir. 1984) (quoting Occhino v. U.S., 686 F.2d 1302, 1308 n. 7 (8th Cir. 1982)). In the Seventh Circuit, all three factors listed in Chevron Oil must favor prospective-only application before a decision will be denied retroactive effect. See, e.g., Valencia, 617 F.2d at 1289; but cf. Jordan v. Weaver, 472 F.2d 985, 996 (7th Cir. 1973) (adopting in dicta a "threshold" test), rev'd on other grounds sub nom. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

Under Chevron Oil, retroactivity is appropriate here unless Wilson v. Garcia establishes a new principle of law.*fn3 As defendants concede, Beard v. Robinson, 563 F.2d 331 (7th Cir. 1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978), stated the law in Illinois prior to Wilson. Resolving a conflict within the circuit, the Seventh Circuit in Beard held that the five-year Illinois residual statute of limitations applied to statutory claims brought under the Civil Rights Acts, including 42 U.S.C. § 1983. 563 F.2d at 338 (reaffirming Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958)). In so holding, the Seventh Circuit squarely rejected the application of the two-year Illinois personal injury statute of limitations later mandated by the Supreme Court because of the "fundamental differences" between a civil rights action and a common law tort. Id. at 336-37. Far from being reversed, Beard was subsequently followed or cited with approval by the Seventh Circuit and numerous federal district courts in Illinois.*fn4 See, e.g., Kolar v. County of Sangamon, 756 F.2d 564, 567 (7th Cir. 1985); Sacks Brothers Loan Co. v. Cunningham, 578 F.2d 172, 176 (7th Cir. 1978); Lawson v. Metropolitan Sanitary District, 102 F.R.D. 783, 794 (N.D.Ill. 1983); Killingham v. Board of Governors, 549 F. Supp. 225, 226-27 (N.D.Ill. 1982); Hampton v. Hanrahan, 522 F. Supp. 140, 142 (N.D.Ill. 1981).

Beard, as well as the cases just cited, was good law in this district when Moore's cause of action accrued in 1979 and when he filed his suit in 1984. Thus, these cases constitute clear past precedent upon which Moore, his attorney, and others similarly situated in Illinois, may have relied.*fn5 The new rule announced in Wilson v. Garcia not only effectively overrules this line of precedent, but also makes a "clear break" with the past, see, e.g., U.S. v. Johnson, 457 U.S. 537, 550 n. 12, 551, 102 S.Ct. 2579, 2587 n. 12, 2588, 73 L.Ed.2d 202 (1982); Hanover Shoe, Inc. v. U.S. Shoe Machinery Corp., 392 U.S. 481, 498, 88 S.Ct. 2224, 2234, 20 L.Ed.2d 1231 (1968), and disapproves a practice arguably sanctioned by the Supreme Court in prior cases. Cf. Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 488, 100 S.Ct. 1790, 1794-95, 1797, 64 L.Ed.2d 440 (1980) (courts must identify and apply statute of limitations of the state claim most closely analogous to the particular § 1983 claim at issue, as opposed to § 1983 claims in general); Campbell v. Haverhill, 155 U.S. 610, 616, 15 S.Ct. 217, 219, 39 L.Ed. 280 (1895). Thus, the crucial first step in the Chevron Oil analysis is satisfied here.

Furthermore, Wilson v. Garcia involved an issue of first impression before the Supreme Court whose resolution was not clearly foreshadowed. The dissent in Wilson chastises the majority for "jettisoning" a rule of venerable, though haphazard, application. 105 S.Ct. at 1949, 1951 (O'Connor, J., dissenting). Moreover, the primary rationale for the majority's holding was to remedy the "conflict, confusion, and uncertainty" among courts and practitioners regarding the appropriate statute of limitations to apply to this ubiquitous civil rights statute. E.g., 105 S.Ct. at 1942, 1945 n. 25, 1946 n. 32. Prior to Wilson, opinion differed among and even within federal circuits over the appropriate statute of limitations. In this state of uncertainty, prediction as to which way the Supreme Court would turn was unclear.*fn6 Thus, Wilson definitively establishes a new and uniform principle of law.

Second, Wilson weighed the broad remedial purposes of § 1983 as well as the policies of uniformity, certainty, and the minimization of unnecessary litigation. On the one hand, to bar Moore's suit retroactively would be inimical to the beneficent purpose of Congress in enacting § 1983. On the other hand, it would be conducive, in an arbitrary manner, to the federal interests of uniformity and certainty. On balance, the court cannot say that retrospective application in this case would clearly hamper or promote the Supreme Court's goals. Cf. Jackson v. City of Bloomfield, 731 F.2d 652, 654-55 (10th Cir. 1984). Thus, the second factor of the Chevron Oil analysis is not alone determinative.*fn7

Finally, the court concludes that retroactivity would impose a substantial inquiry in this case. At the time this suit was filed, Beard was clear authority that the five-year Illinois residual statute of limitations governed § 1983 actions brought in this state. Responsible counsel could have justifiably relied on Beard to infer that this suit was filed timely. Retroactive application of the two-year personal injury statute of limitations would deprive Moore of any remedy whatsoever on the basis of a change in the law occurring after his action was filed. See Chevron Oil, 404 U.S. at 108, 92 S.Ct. at 356; Jackson, 731 F.2d at 655; Winston v. Sanders, supra note 3.

In sum, upon consideration of the Chevron Oil factors, the court holds that Wilson v. Garcia should not be applied retroactively in this case.*fn8 The touchstone of the doctrine of nonretroactivity is the protection of litigants and lawyers, who have justifiably relied on an old rule, from the unfair burden of an unexpected change in the law. E.g., U.S. v. Johnson, 457 U.S. at 550 n. 12, 102 S.Ct. at 2587 n. 12; Milton v. Wainwright, 407 U.S. 371, 381-82 n. 2, 92 S.Ct. 2174, 2179-80 n. 2, 33 L.Ed.2d 1 (1972) (Stewart, J., dissenting); see Note, supra note 2, at 136-37. Adhering to this rationale, the court holds only that Illinois litigants and lawyers could have justifiably relied on clear Seventh Circuit precedent that was controlling until the advent of Wilson v. Garcia. Even assuming that retroactivity might further some of the concerns addressed by the Supreme Court, this factor is greatly outweighed by the manifest injustice that would result in mechanically shortening the limitations period. See Jackson, 731 F.2d at 655; Abbitt v. Franklin, 731 F.2d 661, 664 (10th Cir. 1984) (en banc); see also N.L.R.B. v. Chicago Marine Containers, Inc., 745 F.2d 493, 499 (7th Cir. 1984). The court will not bar plaintiff's right to a day in court under these circumstances. Accord, Winston v. Sanders, supra note 3; cf. Gaddis, 733 F.2d at 1378; Abbitt, 731 F.2d at 664; Jackson, 731 F.2d at 655.

B. Motions To Dismiss

It is well-settled that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Although all of its allegations must be taken as true on a motion to dismiss, the complaint must "contain either direct allegations on every material point necessary to sustain a recovery on any legal theory . . . or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir. 1984).

1. Floro

Moore asserts that Floro violated his Fourth and Fourteenth Amendment rights by — 1) encouraging Terrell and Grabrowski to beat Moore by threatening him at the Christmas party and 2) denying Moore medical treatment. Complaint at ¶¶ 18-19. Since neither of these acts is "intimately associated with the judicial phase of the criminal process," Floro is clearly not entitled to the absolute prosecutorial immunity that he demands. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976).

Nevertheless, the court concludes that both counts fail to state a cause of action. First, plaintiff seeks to hold Floro liable for Moore's injuries solely because two other defendants overheard Floro's threat and therefore assumed they could attack Moore with impunity. This convoluted contention, involving a double set of subjective inferences, is too remote and speculative to sustain a § 1983 action in federal court. Regardless of Floro's feelings, to establish a constitutional violation under § 1983, plaintiff must allege some affirmative conduct on the part of Floro that evidences a causal connection between his statement at the party and the later beating. Because Moore does not allege that Floro directly incited, solicited, aided, or attempted to aid Terrell and Grabrowski, or was otherwise responsible for their actions, Floro cannot be held liable for their alleged misdeeds.

Second, plaintiff fails to allege or substantiate an affirmative duty on the part of Floro to order medical treatment for Moore. Plaintiff merely asserts that Floro had the power, as state's attorney, to order such treatment. Having the power and having a legal obligation to do something are two markedly different concepts. Even if Moore's pleading is sufficient, it does little good to allege a non-existent legal duty. The court is unaware of any case or rule of law, and plaintiff cites none, imposing such an affirmative duty on a prosecutor absent, as here, any direct or conspiratorial responsibility for the injuries.*fn9

Accordingly, the court grants Floro's motion to dismiss the complaint as to him.

2. Willbrandt

The complaint alleges that Willbrandt discharged Moore from his employment for the exercise of his First Amendment rights. Complaint at ¶ 21. Under a liberal construction of the complaint, the protected speech appears to be Moore's successful defense at his criminal trial. Id. at ¶ 14.

Willbrandt argues that Moore fails to state a claim for retaliatory discharge because his speech is not constitutionally protected. The court rejects this argument. "[T]he first amendment protects the right to testify truthfully at trial." Smith v. Hightower, 693 F.2d 359, 368 (5th Cir. 1982). Furthermore, the court holds that truthful testimony of a public employee at trial, particularly when the employee is a criminal defendant, involves, by definition, matters of public interest and is therefore protected speech under the recent Supreme Court analysis in Connick v. Myers, 461 U.S. 138, 146-47, 103 S.Ct. 1684, 1689-90, 75 L.Ed.2d 708 (1983).*fn10

Accepting his allegations as true, the court concludes that Moore sufficiently states a claim under § 1983 for retaliatory discharge on the basis of constitutionally protected speech.

3. The Remaining Defendants

Because the court has already rejected the statute of limitations defense, the only basis for the other defendants' motion to dismiss is laches. The equitable doctrine of laches, however, does not apply to this action at law. See, e.g., Nemkov v. O'Hare Chicago Corp., 592 F.2d 351, 354 (7th Cir. 1979). Since the remaining defendants raise no additional arguments, their motion to dismiss is denied.*fn11

III. Conclusion

For the foregoing reasons, the court grants defendant Floro's motion to dismiss the complaint but denies the remaining defendants' motion. Accordingly, the complaint is dismissed only as to Floro.

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