United States District Court, Northern District of Illinois, E.D
July 23, 1985
PAUL H. MOORE, PLAINTIFF,
THEODORE FLORO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Decker, Senior District Judge.
MEMORANDUM OPINION AND ORDER
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.
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
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
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
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).
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
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
Accordingly, the court grants Floro's motion to dismiss the
complaint as to him.
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
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.