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DE FURGALSKI v. SIEGEL

September 18, 1985

STANLEY K. DE FURGALSKI, PLAINTIFF,
v.
EUGENE L. SIEGEL, JEROME BENNETT, GEORGE A. RYWNIAK, THOMAS A. COOPER, DONALD A. RYAN, CHARLES E. TOKAR, LAWRENCE GROVE, MARY MACAROL, EDWARD F. BUETTNER, FRANK R. ANGELOTTI, CARMEN DICARLO, FRED J. SPECK AND JAMES MCQUAID, DEFENDANTS.



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

  MEMORANDUM ORDER

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.

FACTS

The following facts are alleged in plaintiff's amended complaint. For purposes of this order they are considered to be true.

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 the apartments.

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.

DISCUSSION

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 ...

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