The opinion of the court was delivered by: Bua, District Judge.
Before the Court is defendants' motion to dismiss the amended
complaint for compensatory damages and declaratory relief.
Plaintiff alleges violations of the Civil Rights Acts of 1866 and
1871, 42 U.S.C. § 1981, 1982, 1983, and pendent state law
theories. Jurisdiction in this Court is based on Title 28, United
States Code, Section 1331.
Defendants argue, among other things, that plaintiff's claims
are time barred by the two-year Illinois statute of limitations
imposed by the Supreme Court's decision in Wilson v. Garcia, ___
U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). For the reasons
stated herein, the Court denies defendants' motion to dismiss all
counts of plaintiff's amended complaint.
The following facts are alleged in plaintiff's amended
complaint. For purposes of this order they are considered to be
Since 1973 plaintiff has attempted to build a group of
apartment buildings. Plaintiff engaged subcontractors to perform
the construction work in 1977. Three of these subcontractors were
black. After the defendants discovered the subcontractors' race,
the defendants harassed plaintiff by initiating needless zoning
and building restrictions in an attempt to prevent completion of
From 1980 to 1982, defendants withheld police protection from
the construction area and withheld zoning decisions with the
intent to reduce the value of plaintiff's property. Plaintiff
initiated this litigation in March 1985 based on his belief that
his civil rights had been violated.
I. § 1983 Statute of Limitations
Because the Reconstruction Civil Rights Acts do not contain a
specific statute of limitation governing 42 U.S.C. § 1983
actions, the Court is obligated to adopt the forum state's
statute of limitation as federal law. Smith v. City of
Pittsburgh, 764 F.2d 188 (3d Cir. 1985). In 1977, the Seventh
Circuit held that all claims founded on the Civil Rights Acts are
governed by the five-year Illinois statute of limitations
applicable to all statutory causes of action that do not contain
their own limitations periods. Beard v. Robinson, 563 F.2d 331,
338 (7th Cir. 1977).
In 1985, however, the Supreme Court characterized all § 1983
actions uniformly as personal injury actions and applied to §
1983 actions the state statute of limitations governing personal
injury actions. Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938,
85 L.Ed.2d 254 (1985). As a result of Wilson, the appropriate
limitation period for § 1983 actions brought in Illinois is the
two-year personal injury claim limitation provided by § 13-202 of
the Illinois Code of Civil Procedure.
The issue before the Court is whether Wilson should be applied
retrospectively to bar plaintiff's claim, or whether the
five-year limitation chosen in Beard should be applied to allow
maintenance of plaintiff's claim. The parties agree that
plaintiff's action was timely filed under the then-applicable
Seventh Circuit decision in Beard. The parties also agree that
plaintiff's action would be untimely under a retrospective
application of the Wilson decision because it was filed more than
two years after the events surrounding plaintiff's unsuccessful
attempt to develop his property.
The Supreme Court addressed the issue of retrospective
application of changes in the law of statutes of limitations in
Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355,
30 L.Ed.2d 296 (1971), applying a three-part analysis:
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 ...