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United States District Court, Northern District of Illinois, E.D

September 6, 1985


The opinion of the court was delivered by: Shadur, District Judge.


On July 2, 1985 Vickie Shorters ("Shorters") and Delores Clark ("Clark") sued the City of Chicago ("City") and Chicago police officer George Weir ("Weir") under 42 U.S.C. § 1983 ("Section 1983"), seeking damages for an alleged violation of plaintiffs' civil rights in August 1982. Defendants then moved under Fed.R.Civ.P. ("Rule") 12(b)(6) to dismiss plaintiffs' Complaint, in part on the grounds it is barred by the applicable statute of limitations.*fn1 For the reasons stated in this memorandum opinion and order, the Complaint survives that motion.


In the early morning hours of August 5, 1982 plaintiffs, who were riding in an automobile owned by Clark, stopped to purchase hamburgers at a White Castle restaurant at 111th and State Streets in Chicago. Shorters entered the restaurant while Clark remained in the car. While waiting for Shorters to return, Clark was approached by a restaurant security guard who told her she was parked in a restricted area and would have to move her car. After some discussion Clark agreed to do so.

As Clark was moving the car Weir arrived on the scene, ordered Clark to stop the car and asked to see her license. When Clark produced her license, Weir reached inside the car, took the license from her and also removed the keys from the ignition switch. Weir then opened the car door, removed Clark from the car and placed her in his squad car, in the meantime subjecting her to verbal abuse. Shortly thereafter Shorters emerged from the restaurant and approached Weir to ask about what had happened. Weir responded "Do you want to go to jail too?," twisted Shorters's arm behind her back and placed her under arrest. Clark was later charged with battery, while both Shorters and Clark were charged with disorderly conduct. After plaintiffs had appeared several times in the Circuit Court of Cook County all charges against them were dropped.

Statute of Limitations

Defendants' motion to dismiss invokes the Supreme Court's definitive ruling in Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Wilson, 105 S.Ct. at 1949 characterizes Section 1983 claims collectively as "[g]eneral personal injury actions, sounding in tort,"*fn3 and id. at 1947 mandates the selection, "in each State, [of] the one most appropriate statute of limitations for all § 1983 claims." That statute in Illinois, defendants argue, is Ill. Rev.Stat. ch. 110, ¶ 13-202 ("Section 13-202"*fn4):

  Actions for damages for an injury to the person, or
  for false imprisonment, or malicious prosecution, or
  for a statutory penalty, or for abduction, or for
  seduction, or for criminal conversation . . . shall
  be commenced within two years next after the cause of
  action accrued. . . .

Because the events giving rise to plaintiffs' claim occurred in August 1982, defendants claim the July 1985 Complaint was filed out of time.

Plaintiffs counter with two arguments:

    1. Under the reasoning of Wilson, the Illinois
  statute of limitations most

  appropriate for Section 1983 claims is not Section
  13-202 but rather Ill.Rev.Stat. ch. 110, ¶ 13-205
  ("Section 13-205"), which prescribes a five-year
  limitations period for "all civil actions not
  otherwise provided for."

    2. Even if Wilson were instead to cause Section 13
  202 to supply the applicable limitations period,
  plaintiffs should be afforded a reasonable time after
  Wilson to file actions (a) that would have been
  timely under what had been thought a five-year
  limitations period (adopted by our Court of Appeals
  in 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)) but (b) that would become untimely under
  a post-Wilson two-year period.

This opinion considers those arguments in turn.

1. Applicable Illinois Limitations Period

Wilson teaches a twofold inquiry:

    1. a single characterization of all Section 1983
  claims — for which purpose a federal standard
  applies; and

    2. selection of a single state limitations statute
  — for which purpose state law necessarily gives
  content to the state's own statutes.

Because of the double aspect of that inquiry, and because of the two quite different sources that must be drawn upon, special care must be taken to avoid the trap of assuming the same or similar words necessarily have the same meaning in the two contexts — they may, of course, but they need not.

This opinion turns then to the first question: the precise meaning of the Wilson characterization. Wilson, 105 S.Ct. at 1948 speaks of Section 1983 "as conferring a general remedy for injuries to personal rights." On the following page it refers to "all § 1983 actions as involving claims for personal injuries," to "[g]eneral personal injury actions, sounding in tort" and to "§ 1983 claims [as] best characterized as personal injury actions." Certainly Justice Stevens (speaking for the Court, over a single dissent) was not shifting the intended meaning of his language in such a brief compass. Slight variations in locution do not import any change in substance.

Because this Court is already aware of what the second-step (state-law) inquiry later in this opinion will bring, it notes Wilson gave several strong clues as to what the shorthand terms "injuries to personal rights" and "personal injuries" embrace. Wilson, id. at 1948 said:

  As we have noted, however, the § 1983 remedy
  encompasses a broad range of potential tort
  analogies, from injuries to property to infringements
  of individual liberty.

It went on (id.) (emphasis in original):

  The Constitution's command is that all "persons"
  shall be accorded the full privileges of citizenship;
  no person shall be deprived of life, liberty, or
  property without due process of law or be denied the
  equal protection of the laws. A violation of that
  command is an injury to the individual rights of the

And it quoted with favor (id.) from Almond v. Kent, 459 F.2d 200, 204 (4th Cir. 1972):

  In essence, § 1983 creates a cause of action where
  there has been injury, under color of state law, to
  the person or to the constitutional or federal
  statutory rights which emanate from or are guaranteed
  to the person. In the broad sense, every cause of
  action under § 1983 which is well-founded results
  from "personal injuries."

Finally it said (id. at 1948-49) (footnotes omitted):

  The rights enforceable under § 1983 include those
  guaranteed by the Federal Government in the
  Fourteenth Amendment: that every person within the
  United States is entitled to equal protection of the
  laws and to those "fundamental principles of liberty
  and justice" that are contained in the Bill of Rights
  and "lie at the base of all our civil and political
  institutions." These guarantees of liberty are among
  the rights possessed by

  every individual in a civilized society, and not
  privileges extended to the people by the legislature.

What all this means, of course, is that the scope of Section 1983 is not at all limited to the whippings, lynchings and worse (see id. at 1947) that were the "specific historical catalyst" for its 1871 enactment. Such direct physical injury does not mark the outer boundaries of Section 1983 claims. Wilson plainly teaches its references to "personal injury" and "injuries to personal rights" encompass not only such injuries (of which the sheriff's racially-motivated fatal beating of a prisoner in the seminal case of Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) is the archetype) but also the far wider range of harms that this and all other federal courts regularly treat with in Section 1983 litigation.

That leads then to the second level of inquiry: What Illinois limitations statute provides the best fit to the total set of federal harms encompassed in Section 1983? And once again, the search is not simply for the Illinois statute that sounds most like the shorthand phrases Wilson used to describe the broad range of federal torts, for the test must be a commonality of substantive content and not mere similarity of language.

There is reason to emphasize that difference in the nature of the quest. In purely superficial terms Section 13-202, with its reference to "injury to the person," has a deceptive similarity to Wilson's "personal injury" (or perhaps even Wilson's "injuries to personal rights"). But it is crystal clear Illinois courts (which are of course the masters of the meaning of state statutes) have never given the phrase "injury to the person" a comparably broad scope.*fn5

Almost exactly a century ago Bassett v. Bassett, 20 Ill. App. 543, 547-48 (4th Dist. 1886) dealt with a wife's damages claim against her husband's father for having enticed her husband to separate himself from her. Bassett defined the limited reach of the direct precursor to Section 13-202:

  It is next objected that the court erred in
  sustaining the demurrer to the Statute of Limitations
  of two years. The section of the statute upon which
  the plea is based provides that "Actions for damages
  for an injury to the person, or for false
  imprisonment, malicious prosecution, or for a
  statutory penalty, or for abduction, or for
  seduction, or for criminal conversation, shall be
  commenced within two years." Applying the familiar
  principle that the statute does not bar a cause of
  action unless it comes clearly within its provisions,
  we are of the opinion that the section relied upon is
  not broad enough to include the present case. The
  cause of action for an injury to the person which is
  barred in two years is limited to a direct physical
  injury to the person. If it were intended to include
  all injuries to personal and relative rights, the
  legislature would not have considered it necessary in
  the same act to provide specially for a period of
  time in which an action should be brought for many of
  the injuries to such rights. Thus actions to recover
  damages for slander and libel, false imprisonment,
  malicious prosecution, abduction, seduction and
  criminal conversation, are expressly provided for,
  showing the clear intent of the legislature to limit
  "injuries to the person" to those of a physical

Bassett concluded the plaintiff's action was a "civil action not otherwise provided for" and was therefore covered by the residual five-year limitations period under the predecessor to Section 13-205.

That reading has persisted to the present day. Just a decade ago Mitchell v. White Motor Co., 58 Ill.2d 159, 161, 317 N.E.2d 505, 506 (1974) (emphasis in original) upheld a line of Illinois Appellate Court cases (beginning with Bassett) that had applied the residual five-year limitations period in cases:

  where a plaintiff's cause of action arises from a
  personal injury to a third person but does not
  involve a direct physical injury to the person of the
  plaintiff. . . .

Mitchell (id. at 162, 317 N.E.2d at 506-07) acknowledged such consequential damage actions are, in many jurisdictions, encompassed for limitations purposes in the term "for injury to the person" or "for personal injury." But Mitchell went on to explain the Illinois rule was to the contrary (id. at 162-63, 317 N.E.2d at 507):

  [O]ur appellate courts have held that this language
  ["injury to the person"] in our limitation statute
  applies only to direct personal injury to the
  plaintiff. Our legislature has long acquiesced in
  this interpretation of this language. We find the
  inaction of our legislature in the face of the
  judicial construction which has been given to the
  meaning of the statute more persuasive than the
  decisions from the other jurisdictions. . . . We
  think that it is the nature of the plaintiff's injury
  rather than the nature of the facts from which the
  claim arises which should determine what limitations
  period should apply. Where, as here, plaintiff has
  suffered no direct physical or mental injury the two
  year statute is inapplicable.

Three years later in 1977 the specific holding of Mitchell (but not the principle just quoted) was overruled by the predecessor to Ill.Rev.Stat. ch. 110, ¶ 13-203 ("Section 13-203"):

  Actions for damages for loss of consortium or other
  actions deriving from injury to the person of
  another . . . shall be commenced within the same
  period of time as actions for damages for injury to
  such other person.

That limited legislative action betokens continued acquiescence in the Illinois courts' general construction of "injury to the person" as used in Section 13-202, just as it reflects a specific legislative choice to change that rule for the specific kind of action at issue in Mitchell. Section 13-203 leaves untouched (or more accurately, really fortifies) the judicial construction of Section 13-202 as announced in Bassett, reconfirmed over the next nine decades and given Illinois Supreme Court sanction in Mitchell.

That case-law and statutory history makes two things plain:

    1. Illinois courts would apply the Section 13-202
  two-year limitations period to any action for direct
  physical (or perhaps also "mental") injury
  encompassed by a Section 1983 claim.

    2. But those same courts would look elsewhere for a
  limitations period to apply to the many kinds of
  violations of personal rights asserted in the host of
  Section 1983 cases that involve no such direct
  physical (or mental) injuries.

Such a limited utility of the two-year statute is not enough to satisfy Wilson, which requires this Court to identify a single Illinois limitations period for all Section 1983 claims (105 S.Ct. at 1947) (footnote omitted):

  Although the need for national uniformity "has not
  been held to warrant the displacement of state
  statutes of limitations for civil rights actions,"
  Board of Regents v. Tomanio, 446 U.S. [478] at 489,
  100 S.Ct. [1790], at 1797 [64 L.Ed.2d 440 (1980)],
  uniformity within each State is entirely consistent
  with the borrowing principle contained in § 1988. We
  conclude that the statute is fairly construed as a
  directive to select, in each State, the one most
  appropriate statute of limitations for all § 1983
  claims. The federal interests in uniformity,
  certainty, and the minimization of unnecessary
  litigation all support the conclusion that Congress
  favored this simple approach.

In light of the confined scope of the Section 13-202 concept of "injury to the person," as contrasted with Wilson's much broader concept of "injury to personal rights" or "personal injury," this Court cannot conclude Section 13-202 supplies "the one most appropriate statute of limitations for all § 1983 claims." And no other specific Illinois limitations provision comes
any closer to fitting the bill.*fn6 With the possibility of dividing a claim into its component parts for statute of limitations purposes having been foreclosed by Wilson, this Court has determined the only satisfactory (and permissible) response to the Wilson directive is to select, as the single statute of limitations most appropriate for all Section 1983 claims, the Section 13-205 category of "all civil actions not otherwise provided for" — a five-year statute.*fn7

This careful examination of Illinois law in light of the holding and reasoning of Wilson*fn8 has thus led to the conclusion "the one most appropriate statute of limitations for all § 1983 claims" in Illinois is Section 13-205, prescribing the same five-year period federal courts in Illinois have previously applied to such claims.*fn9 From this it follows Shorters' and Clark's Complaint, filed less than three years after the occurrence of the events giving rise to their claims, was timely filed.

2. Reasonable Period To File Post-Wilson

What has already been said suffices to defeat defendants' statute of limitations defense. That makes dictum any discussion of plaintiffs' second argument. Nonetheless, against the possibility of a future appeal, it may be worth taking a brief look at that alternative ground for denial of defendants' motion.

Plaintiffs' second contention assumes arguendo Wilson requires application of the Paragraph 13-202 limitations period. That assumption then requires the examination of two questions:

    1. Whether the two-year limitations period is to be
  applied retroactively to cases that were timely filed
  before Wilson but remain undecided.

    2. Whether a Complaint filed (a) shortly after
  Wilson and (b) more than two years after the cause of
  action accrued is barred, even though it would have
  been timely filed under the pre-existing limitations

Obviously an affirmative answer to the first of those questions moots the second. Conversely, a negative answer to the first leaves open the second.

True enough, plaintiffs have not addressed the first question. Nonetheless defendants implicitly concede a "no" answer on the authority of Jackson v. City of Bloomfield, 731 F.2d 652, 655 (10th Cir. 1984) (decided en banc the same day the Court of Appeals decided Wilson, 731 F.2d 640) and its application of the factors bearing on nonretroactivity set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971).*fn10 But the Jackson analysis, focusing (as it had to) on New Mexico and Tenth Circuit law, lacks direct bearing on cases arising in the context of Illinois and Seventh Circuit law.*fn11

In the latter respect, both Judge Decker's July 23, 1985 decision in Moore v. Floro, at 330-334 and Judge Sharp's earlier decision in Winston v. Sanders, 610 F. Supp. at 178-79 apply the Chevron Oil factors in light of Beard and the clear five-year limitations rule it had prescribed in Illinois for nearly eight years before Wilson. Each of Moore and Winston concluded — soundly in this Court's view — a Wilson-mandated reduction of the limitations period for Illinois-based Section 1983 actions does not retroactively bar claims that had been timely when filed under Beard.

That then poses the second question: whether a complaint filed after Wilson was decided, yet outside the two-year limitations period, must be measured by the Wilson-derived rule. For that purpose the Chevron Oil analysis underlying the holdings of Winston and Moore might well be repeated. Here, as in those cases:

    1. Plaintiffs are likely to have relied on the
  clear rule set out by Beard.

    2. Nonretroactivity would not seriously jeopardize
  the policies of uniformity, certainty and
  minimization of unnecessary litigation, while it
  would serve the broad remedial purposes of Section

    3. Retroactive application would impose a burden of
  inequity on plaintiffs, particularly given the prior
  solidity of the Beard rule.

That Chevron Oil analysis necessarily assumes plaintiffs filed suit with reasonable promptness after Wilson, for neither the efficiency considerations underlying Wilson nor the equities are well served by allowing a plaintiff simply to ignore an otherwise valid change in the law.

In a sense, though, such a detailed Chevron Oil approach is really subsumed within the rule succinctly stated by the Supreme Court over 100 years ago in Terry v. Anderson, 5 Otto 628, 95 U.S. 628, 632-33, 24 L.Ed. 365 (1877) (citations omitted) and recently cited approvingly and quoted in part in Texaco, Inc. v. Short, 454 U.S. 516, 527 n. 21, 102 S.Ct. 781, 791 n. 21, 70 L.Ed.2d 738 (1982):

  This court has often decided that statutes of
  limitation affecting existing rights are not
  unconstitutional, if a reasonable time is given for
  the commencement of an action before the bar takes
  effect. . . . It is difficult to see why, if the
  legislature may prescribe a limitation where none
  existed before, it may not change one which has
  already been established.

  In all such cases, the question is one of
  reasonableness, and we have, therefore, only to
  consider whether the time allowed in this statute is,
  under all the circumstances, reasonable.

See also D'Andrea v. Montgomery Ward & Co., 571 F.2d 403, 404 (7th Cir. 1978). Nor should the principle be different because a court rather than a legislature has changed the limitations period. At least absent an express and reasoned repudiation, the judiciary as much as the legislature is bound to respect the due process concerns underlying the Terry rule.

Not surprisingly, Illinois too adheres to the same rule. Meegan v. Village of Tinley Park, 52 Ill.2d 354, 359, 288 N.E.2d 423, 426 (1972) (recently reaffirmed in Moore v. Jackson Park Hospital, 95 Ill.2d 223, 230, 69 Ill.Dec. 191, 193, 447 N.E.2d 408, 410 (1983)) held:

  So long as a reasonable time exists for the
  presentation of a claim after enactment of a statute
  shortening the time in which suit may be brought, the
  legislature may validly shorten the time as to pre
  existing causes of action.

Even without reference to Terry, that same Illinois rule — requiring a reasonable time after the shortening of a limitations period for those who relied on the former law to file their actions — is in the nature of a tolling provision. Such tolling rules are considered part and parcel of the state statute of limitations for Section 1983 purposes under Chardon v. Soto, 462 U.S. 650, 656-57, 662, 103 S.Ct. 2611, 2615-16, 2619, 77 L.Ed.2d 74 (1983), reaffirming Board of Regents v. Tomanio, 446 U.S. 478, 480, 100 S.Ct. 1790, 1793, 64 L.Ed.2d 440 (1980).

Whether the issue is viewed in due process terms under Terry or in tolling terms under Illinois law, the only remaining question is what constitutes a "reasonable" grace period for filing suit. In either case it seems appropriate in the first instance to look to state law for the measure of reasonableness. Where as here state law supplies the limitations period, federal courts would appear better advised also to look to state law as to changes in limitation periods — assuming that law is at least minimally satisfactory in Terry terms — rather than to establish a distinct and unnecessary federal rule. And Nergenah v. Norfolk & Western Railway Co., 81 Ill. App.3d 866, 868, 37 Ill.Dec. 61, 63, 401 N.E.2d 1154, 1156 (1st Dist. 1980) provides a convenient summary in that regard:

  In Anderson v. Wagner (1978), 61 Ill. App.3d 822, 19
  Ill.Dec. 190, 378 N.E.2d 805, an eight-month period
  for filing suit after an amendment's effective date
  was held to be reasonable. Anderson was based on
  Carlin v. Peerless Gas Light Co. (1918), 283 Ill. 142,
  119 N.E. 66, wherein a nine-month period was
  found to be reasonable. Here, the action for loss of
  consortium was filed approximately 7 1/2 months after
  the effective date of the amendment of the statute of
  limitations. On the basis of Anderson and Carlin,
  supra, we find that Addie Nergenah's action was filed
  within a reasonable time.

Shorters and Clark initiated this lawsuit 75 days after Wilson was decided. They plainly acted within a reasonable time in Nergenah terms. Even if Wilson were to require this Court to assess the timeliness of the Complaint under Section 13-202 rather than Section 13-205, plaintiffs' having filed within a reasonable time after Wilson would also defeat defendants' limitations defense.


Defendants' motion to dismiss the Complaint as untimely is denied. Plaintiffs are ordered to file a memorandum addressing the remaining elements of defendants' Rule 12(b)(6) motion (see n. 1) on or before September 20, 1985. Defendants' reply memorandum will be due September 30, 1985. This case is set for a status hearing November 12, 1985 at 9:15 a.m.

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