The opinion of the court was delivered by: Foreman, Chief Judge:
Before the Court is defendants' Motion to Dismiss. On June 20,
1984, plaintiffs filed this action alleging that their civil
rights were violated when the Franklin County Sheriff
terminated their employment on November 25, 1980. According to
plaintiffs, they were discharged for having filed a grievance
with the Department of Labor. Count I is brought under
42 U.S.C. § 1983; Counts II and III invoke pendent jurisdiction
over claims involving the Illinois Constitution and the tort of
retaliatory discharge. Defendants, relying on Wilson v.
Garcia, ___ U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985),
contend that the § 1983 claim is barred by Illinois' two-year
limitations period for personal injuries. For the following
reasons, this Court holds that plaintiffs' § 1983 claim is
time-barred under the limitations period for personal injuries
found at Ill.Rev.Stat. ch. 110, ¶ 13-202.
As Congress has not established a specific statute of
limitations applicable to § 1983 actions, courts are directed
to borrow and apply the most appropriate state statute of
limitations. Burnett v. Grattan, ___ U.S. ___, 104 S.Ct.
2924, 82 L.Ed.2d 36 (1984); Board of Regents v. Tomanio,
446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Johnson v.
Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44
L.Ed.2d 295 (1975). The United States Supreme Court has held
that for the purpose of § 1983 claims, the state limitations
statute governing personal injury action constitutes the most
appropriate statute of limitations to be borrowed. Wilson v.
Garcia, ___ U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985).
In Illinois, a two-year limitations period has been adopted for
personal injury claims. Ill. Rev.Stat. ch. 110, ¶ 13-202.
Prior to the clarification in Wilson v. Garcia, ___ U.S. ___,
105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the Seventh Circuit
Court of Appeals, in an attempt to determine the most analogous
state limitations period, considered claims such as those of
plaintiffs in the instant case to be governed by Illinois'
five-year catch-all period found in Ill.Rev.Stat. ch. 110, ¶
13-205. See, e.g., Kolar v. County of Sangamon, 756 F.2d 564
(7th Cir. 1985); Sack Brothers Loan Co., Inc. v. Cunningham,
578 F.2d 172 (7th Cir. 1978); Teague v. Caterpillar Tractor
Co., 566 F.2d 7 (7th Cir. 1977); Beard v. Robinson,
563 F.2d 331 (7th Cir. 1977). The Seventh Circuit appears to recognize
that, even as to actions initiated prior to Wilson v. Garcia,
___ U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the "state
statute of limitations that the federal courts must borrow in a
section 1983 suit is the statute of limitations for
personal-injury suits." Bailey v. Faulkner, 765 F.2d 102, 103
(7th Cir. 1985). This position is consistent with recent
decisions rendered in other circuits which have applied
personal injury limitations periods to actions filed prior to
the Supreme Court's decision in Wilson. See, e.g., Jones v.
Preuit & Mauldin, 763 F.2d 1250 (11th Cir. 1985); Johnson v.
Swyka, 763 F.2d 602 (3d Cir. 1985); Burkhart v. Randles,
764 F.2d 1196 (6th Cir. 1985); Serrano v. Torres, 764 F.2d 47
(1st Cir. 1985); Smith v. City of Pittsburgh, 764 F.2d 188
(3d Cir. 1985); Acoff v. Abston, 762 F.2d 1543 (11th Cir.
1985); Knoll v. Springfield Township School District,
763 F.2d 584 (3d Cir. 1985).
In Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct.
349, 355-56, 30 L.Ed.2d 296 (1971), the Supreme Court advanced
a three-part analysis to determine whether rulings as to
applicable statutes of limitations should be applied
retrospectively. The factors to be considered include: the
extent of change from established prior law; the purpose and
effect of the rule in question and whether retrospective
application would advance or retard this purpose; and the
equities of retrospective application. Although the Seventh
Circuit has not yet specifically addressed these factors in
light of the Supreme Court's decision in Wilson, the Third
Circuit, in Smith v. City of Pittsburgh, 764 F.2d 188, at
194-197, considered these factors in depth and determined that
restricting the holding in Wilson
to prospective application was not warranted.
Regarding the first factor, the change from prior law, the
rationale set forth in Wilson clearly indicates that Congress
originally intended to characterize § 1983 as providing a
remedy for personal injuries sounding in tort. In rejecting the
theory that the choice of the statute of limitations depends on
the particular facts of each claim, the Wilson Court noted,
"there is no reason to believe that Congress would have
sanctioned this interpretation of its statute." ___ U.S. ___,
105 S.Ct. at 1946. In light of the Wilson rationale, as well
as the mass confusion and general lack of consistency regarding
the selection of state statutes of limitation under § 1988, it
cannot be said that the Wilson Court's decision overruled
clear past precedent or decided an issue of first impression
whose resolution was not clearly foreshadowed. The Supreme
Court's intention that its decision in Wilson should be
applied retrospectively is further evinced by its remanding of
two cases to the Third Circuit for further consideration in
light of Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938, 85
L.Ed.2d 254 (1985). Swyka v. Johnson, ___ U.S. ___, 105 S.Ct.
2108, 85 L.Ed.2d 474 (1985); Springfield Township School
District v. Knoll, ___ U.S. ___, 105 S.Ct. 2065, 85 L.Ed.2d
The Wilson Court was also clear that the purpose of its
decision is to provide for "uniformity within each state . . .
consistent with the borrowing principle contained in § 1988."
___ U.S. ___, 105 S.Ct. at 1947. To hold that claims for relief
which accrued before April 17, 1985, or actions filed before
April 17, 1985, are viable under various statutes of
limitations, but that identical claims are subject to only the
personal injury limitation by virtue of the time of filing,
would certainly not advance the purpose underlying the ruling
in Wilson and would, in fact, retard this purpose.
In reference to the third factor in the Chevron analysis, the
equities of retrospective application, it cannot be said in the
instant case that plaintiffs relied on a five-year limitations
period. According to plaintiffs, immediately upon their
discharge from employment they took their cases to an attorney
who was later disbarred before having filed an action on their
behalf. In 1984, upon finding that their suit had not been
filed, they approached another attorney, who filed the instant
action. It appears that plaintiffs' reliance was misplaced as
regards the conduct of their initial attorney, not as regards
the limitations period. In any event, the Supreme Court in
Wilson noted that "Plaintiffs may be denied their just remedy
if they delay in filing their claims, having wrongly postulated
that the courts would apply a longer statute." ___ U.S. ___,
105 S.Ct. at 1947 n. 34.
The above application of the Chevron factors is consistent
with a similar Seventh Circuit analysis regarding retroactive
application of a Supreme Court statute of limitations decision.
The court in Landahl v. PPG Industries, Inc., 746 F.2d 1312
(7th Cir. 1984), held that the six-month limitations period
prescribed in DelCostello. v. International Brotherhood of
Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476
(1983), should be applied retroactively. The Landahl court
examined the Chevron factors and determined that the
confusion and conflict among the circuits regarding the
appropriate statute of limitations to be applied in employment
discharge cases involving violations of § 301 of the Labor
Management Relations Act was merely clarified by DelCostello,
which did not therefore represent a "clean break" with past
precedent. Landahl, 746 F.2d at 1314-15. Further, the
DelCostello, rule had been adopted to provide uniformity;
giving retroactive effect to the DelCostello rule would
further this purpose. Id., at 1315. Finally, although
plaintiff in Landahl had filed his suit within fifteen
months, the court found "no equitable factor that would support
a nonretroactive application." Id., at 1316. The Landahl
court also found persuasive the fact that other courts of
appeals had decided in favor of retroactive application. An
parallel to the above would apply to the instant case.
The Court is convinced that the principles set forth in Wilson
v. Garcia, ___ U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254
(1985), are applicable to the instant action. As this claim was
filed approximately three-and-one-half years after it accrued,
it is time-barred under the two-year personal injury
limitations period set forth at Ill.Rev.Stat. ch. 110, ¶
Accordingly, defendants' Motion to Dismiss (Document No. 20) is
hereby GRANTED; this action is hereby DISMISSED.
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