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December 31, 1985


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


Plaintiff alleges a deprivation of her constitutional rights under the Fourth and Fourteenth Amendments, specifically an unreasonable seizure, an invasion of the security of her person, and a denial of equal protection of the laws. She was arrested for theft while standing in front of a store in the Chicago Loop. She claims the defendants, in making the arrest, used excessive force, allegedly by throwing her through a plate glass window of the store, causing internal and external injuries including permanent scarring. She brings her action under 42 U.S.C. § 1983. Defendants have moved to dismiss the action as time-barred. Plaintiff was arrested on July 15, 1981. She filed this action on April 2, 1985, nearly four years later. When she filed, the law of this circuit allowed a five-year limitation period for section 1983 actions in Illinois. Beard v. Robinson, 563 F.2d 331 (7th Cir. 1977). Two weeks after she initiated this suit the Supreme Court decided Wilson v. Garcia, 471 U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Defendants argue that Garcia in effect overruled Beard and placed section 1983 actions in Illinois under the limitation for personal injury, Ill.Rev.Stat. ch. 110, ¶ 13-202, a two-year period.

This court disagrees on two grounds. As the following discussion will show, Garcia's holding, applied to Illinois, requires the use of Ill.Rev.Stat. ch. 110, ¶ 13-205, the five-year statute of limitations. And even if that were not true, any change in the appropriate statute would not be applied retroactively to bar this claim.


Congress did not give the Civil Rights Acts of the reconstruction era their own statutes of limitations. Rather, 42 U.S.C. § 1988, passed with them, directs federal courts generally to refer to the applicable state law whenever no federal rule of decision exists. State law will fill the gap unless it is inconsistent with the federal interest. Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984). The Supreme Court has repeatedly held that state statutes of limitations are ordinarily part of that applicable state law. 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). A federal court hearing a section 1983 action therefore borrows "the most analogous state statute of limitations" from the law of the state in which it sits. Tomanio, 446 U.S. at 488, 100 S.Ct. at 1797.

The question of which statute to borrow has not been a problem in Illinois for several years. Anticipating at least part of the Supreme Court's holding in Garcia, the Seventh Circuit in effect adopted "a simple, broad characterization of all § 1983 claims" for limitation purposes, 471 U.S. at ___, 105 S.Ct. at 1945. In Beard, 563 F.2d 331, the Court of Appeals held that the five-year statute of limitations for "civil actions not otherwise provided for," Ill.Rev.Stat. ch. 110, ¶ 13-205, governed all Illinois claims under the Civil Rights Acts. Other states, however, have not been so fortunate. Several circuits chose a statute of limitations by analyzing the particular facts of each section 1983 claim, determining which common law action it most resembled and then selecting a statute for that claim from the state's array. The process would then begin anew for the next claim. See, e.g., Gashgai v. Leibowitz, 703 F.2d 10 (1st Cir. 1983); Aitchison v. Raffiani, 708 F.2d 96 (3d Cir. 1983).

The Supreme Court, in Garcia, facing evidence that such an approach "inevitably breeds uncertainty and time-consuming litigation," 471 U.S. at ___, 105 S.Ct. at 1945, concluded, much as the Seventh Circuit had earlier, that section 1988 "is fairly construed as a directive to select, in each state, the one most appropriate statute of limitations for all § 1983 claims." Id. at 1947. Cf. Beard, 563 F.2d at 337. Toward that end the Court decided that "all § 1983 claims should be characterized in the same way for limitation purposes," and further that the characterization should be as a tort action "conferring a general remedy for injuries to personal rights." Garcia, 471 U.S. at ___, ___, 105 S.Ct. at 1945, 1948. It anticipated that its decision would be a "simple approach" to limitation problems. Id. at 1947.

In those states which have one statute which governs all, or at least most, tort actions for injuries to personal rights, applying the approach has been simple. The precise holding of Garcia was to affirm the Tenth Circuit's choice of New Mexico's three-year limitation on actions "for an injury to the person or reputation of any person" for section 1983 actions in New Mexico. 471 U.S. at ___, 105 S.Ct. at 1949. Similarly, applying Garcia to Pennsylvania, the Third Circuit was able to select a two-year limitation covering "assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process . . . [or] an action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another." Knoll v. Springfield Township School District, 763 F.2d 584 (3d Cir. 1985).*fn1

Many states, however, provide more than one limitation period for different types of personal injury claims. In these states the court must closely examine the state's characterization of its own statutes of limitations to determine which of these is the one most appropriate for, or analogous to, the section 1983 general remedy for injuries to personal rights. Like any other application of state law under section 1988, a statute of limitations must still be reasonably consistent with the federal interest. "An appropriate limitations period must be responsive to [the] characteristics of litigation under the federal statute. A state law is not `appropriate' if it fails to take into account . . . policies that are analogous to the goals of the Civil Rights Acts." Burnett, 468 U.S. at ___, 104 S.Ct. at 2930. So, for example, the Eleventh Circuit, applying Garcia to Alabama, found that a superficial resemblance between the phrase, "personal injury," and the one-year limitation governing "any injury to the person or rights of another not arising from contract and not specifically enumerated in this section," Ala.Code § 6-2-39(a)(5) (1975), was not controlling. Alabama courts had defined the choices among its statutes of limitations in accordance with the old forms of action, and that statute covered only actions brought as trespass on the case. Given the legislative history of section 1983, the court found that the six-year statute, "for any trespass to person or liberty, such as false imprisonment or assault and battery," for actions in trespass, was far more appropriate to section 1983 claims. Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir. 1985); Ala.Code § 6-2-34(1) (1975).

The Tenth Circuit, facing a similar problem with Colorado statutes of limitations, bypassed both a one-year statute for trespass actions, including assault, battery and false imprisonment, and a six-year statute for actions on the case. Unlike Alabama, Colorado also provided a three-year period for "all other actions of every kind for which no other period of limitation is provided by law." Colo.Rev.Stat. § 13-80-108(1)(b) (1973). Given the limits Colorado courts had placed on the other statutes, this residuary limitation was the most appropriate for an action for injury to the rights of another. McKay v. Hammock, 730 F.2d 1367, 1370 (10th Cir. 1984).*fn2 See also Gates v. Spinks, 771 F.2d 916 (5th Cir. 1985) (Mississippi, one-year limitation for intentional tort preferable to six-year residuary limitation); Mismash v. Murray City, 730 F.2d 1366 (10th Cir. 1984), cert. denied 471 U.S. ___, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985) (Utah, four-year residuary limitation preferable to one-year statute for libel, slander, assault, battery, false imprisonment and seduction).

The case at bar therefore presents the question of whether Illinois is a state where the application of Garcia will be simple, as in New Mexico and Pennsylvania, or will require analysis of state law for a choice between statutes, as in Alabama and Colorado. Until recently, most courts facing the question assumed that Illinois was in the former category. Garcia had apparently overruled Beard and required the use of Ill.Rev.Stat. ch. 110, ¶ 13-202, a two-year statute which governs, among other things, "actions for damages for an injury to the person." See, e.g., Smith v. City of Chicago, 769 F.2d 408, 411 (7th Cir. 1985) (dictum); Winston v. Sanders, 610 F. Supp. 176 (C.D.Ill. 1985); Moore v. Floro, 614 F. Supp. 328 (N.D.Ill. 1985). However, a recent opinion from Judge Shadur of this district argues persuasively that while the reasoning of Beard cannot survive Garcia, its exact holding can and should. Like Alabama, Illinois has defined the phrase, "injury to the person," in a way which makes it irreconcilable with a general remedy for injuries to personal rights. Like Colorado, in the face of this definition, the statute for "civil actions not otherwise provided for" is still the one most appropriate statute of limitations for all section 1983 claims. Shorters v. City of Chicago, 617 F. Supp. 661 (N.D.Ill. 1985).

The conclusion follows from an analysis of both statutory language and case law. Illinois is, first of all, a state which provides different periods of limitations for different types of injuries to personal interests. Shorters, 617 F. Supp. at 664; cf. Gates, 771 F.2d at 919. While paragraph 13-202 sets a two-year limit for "an injury to the person," a separate statute, paragraph 13-201, provides for "actions for slander, libel, or for publication of matter violating the right of privacy." Illinois' limitations scheme is thus readily distinguishable from that of New Mexico, with which Garcia directly dealt. Also, paragraph 13-205, in addition to functioning as the residuary statute, covers actions on unwritten contracts, awards of arbitration and injuries to property. Actions brought on section 1983 could arise and have arisen from facts which, characterized as torts, fit any of these three categories. See, e.g., Alliance to End Repression v. Rochford, 407 F. Supp. 115 (N.D.Ill. 1975) (invasion of privacy); North American Cold Storage Co. v. Cook County, 468 F. Supp. 424 (N.D.Ill. 1979) (discriminatory tax assessment). Given this choice, a court must look to Illinois' construction of its own statutes to determine which one best fits a section 1983 action.

Secondly, Illinois characterizes claims for limitation purposes precisely on the nature of the interest affected, rather than the theory of recovery or the form of the action. See Hundt v. Burhans, 13 Ill.App.3d 415, 300 N.E.2d 318 (3d Dist. 1973); Handtoffski v. Chicago Consolidated Traction Co., 274 Ill. 282, 113 N.E. 620 (1916). For example, an airline flight attendant had spilled a pot of hot coffee on a passenger. He attempted to characterize his action as a suit for breach of his contract for safe transportation, in an effort to evade the two-year statute of limitations. But since his claim arose from an invasion of his interest in freedom from physical harm, the court held that his claim was governed by the personal injury limitation. Schreiber v. Eastern Airlines, Inc., 38 Ill.App.3d 556, 348 N.E.2d 218 (1st Dist. 1976). On the other hand, when a husband sued the driver who caused a collision from which his wife had sustained injury, to recover her medical expenses, the suit came under the five-year residuary statute. He had not been injured; rather, he was suing for "damages occasioned to him by reason of his marital relationship to the injured party." Roth v. Lundin, 237 Ill. App. 456, 458 (1st Dist. 1925). This approach to characterization applies even when the cause of action is statutory in origin. In Neikirk v. Central Illinois Light Co., 128 Ill.App.3d 1069, 471 N.E.2d 1027, 84 Ill.Dec. 261 (3d Dist. 1984), a snowmobile rider injured in a collision with an unlighted utility pole sued under the Public Utility Act. His personal injury claims were barred by the two-year limitation, but his property damage claim survived under the five-year statute.

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