The opinion of the court was delivered by: Foreman, Chief Judge:
Before the Court is defendants' Motion to Dismiss. On February
21, 1985, plaintiffs filed this action under 42 U.S.C. § 1983
alleging that his civil rights were violated on February 29,
1980, when he was beaten by a Carbondale police officer.
Defendants, relying on Wilson v. Garcia, ___ U.S. ___, 105
S.Ct. 1938, 85 L.Ed.2d 254 (1985), contend that the § 1983
action is time-barred under Illinois' two-year limitations
period for personal injuries.
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). Plaintiff's complaint clearly sets forth a
personal injury claim, which would be time-barred under the
two-year limitations period adopted for personal injury claims
in Illinois, Ill.Rev.Stat. ch. 110, ¶ 13-202, regardless of the
applicability of Wilson v. Garcia, ___ U.S. ___, 105 S.Ct.
1938, 85 L.Ed.2d 254 (1985), to this case. Even if the instant
complaint did not clearly set forth a personal injury claim,
Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d
254 (1985), would be applicable and would serve to bar this
claim as untimely.
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). 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 is 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 plaintiff was justified in relying on a
five-year limitations period. As previously noted, plaintiff's
claim clearly involves personal injury and would be time-barred
even in the absence of the decision in Wilson v. Garcia. 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 its 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
analysis parallel to the above would apply to the instant case.
Given the above analysis, 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), would be applicable to the
instant action even if it were not otherwise barred. As this
claim was filed approximately five years after it accrued, it
is time-barred under the two-year personal injury limitations
period set forth at Ill.Rev.Stat. ch. 110, ¶ 13-202.
Accordingly, defendants' Motion to Dismiss (Document No. 15) is
hereby GRANTED; this action is hereby DISMISSED.
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