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.
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 ...