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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 ...

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