The opinion of the court was delivered by: Mihm, District Judge.
This case is before the Court on the Defendants' motion to
dismiss the suit against the Defendants Lohmann, Ward, St.
Arnold, and Kelly as barred by the statute of limitations. The
motion to dismiss raises two issues with regard to the statute
of limitations question. The first issue is what is the
appropriate statute of limitation for a civil rights action
brought in Illinois pursuant to 42 U.S.C. § 1983 in light of
the Supreme Court's decision in Wilson v. Garcia, ___ U.S.
___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The second issue is
whether the Court should give the statute of limitation
retroactive or prospective relief if the Court decides that the
appropriate limitation period under Wilson represents a
change from past law.
The Plaintiff, Mary J. Wegrzyn, filed her original complaint on
April 30, 1985. The complaint contained two counts. Count I was
a Title VII count claiming sex discrimination by the Department
of Children and Family Services (DCFS) against the Plaintiff.
Count II was a claim against Defendant Gordon Johnson, Director
of DCFS, alleging that Johnson had defamed the Plaintiff by
publicly announcing that the Plaintiff and a co-worker had been
fired by DCFS and that DCFS had taken other disciplinary action
against the Plaintiff and the co-worker because of the death of
On August 28, 1985, the Plaintiff filed her first amended
complaint which included five counts. Like the original
complaint, the amended complaint asserts claims against the
DCFS and the Defendant Gordon Johnson. The first amended
complaint also asserts claims against the individual Defendants
Thomas Ward, Martin Lohmann, Joan Kelly, and William St.
Arnold, who were not named in the original complaint.
Count I of the first amended complaint is a 42 U.S.C. § 1983
claim based upon the First and Fourteenth Amendments to the
United States Constitution in which the Plaintiff alleges that
the Defendants willfully and maliciously conspired to
discriminate and retaliate against the Plaintiff as a result of
her exercise of her free speech rights. Count II of the amended
complaint is also brought under § 1983 and is a claim of sex
discrimination brought pursuant to the Fourteenth Amendment to
the United States Constitution. In count III of the complaint,
the Plaintiff brought another § 1983 action in which she
alleges that the Defendants did not give her pre-disciplinary
hearings which meet the fundamental prerequisites of due
process as guaranteed by the Fifth and Fourteenth Amendments of
the United States Constitution. These first three counts of the
were brought against the five individually named Defendants and
Count IV is a § 1983 action based upon the Fifth and Fourteenth
Amendments to the United States Constitution in which the
Plaintiff reasserts her allegations that Defendant Johnson had
made defamatory statements about the Plaintiff to the news
media. Count V is a Title VII action brought pursuant to
42 U.S.C. § 2000e et seq., against the DCFS, alleging that the
Defendant had harassed the Plaintiff because the Plaintiff
opposed the unlawful employment practices to which her coworker
was subjected. The Defendants' motion to dismiss based upon the
statute of limitations does not address these last two counts,
nor the portions of the previous three counts brought against
Defendant Johnson or the DCFS.
In their motion to dismiss Defendants Ward, Lohmann, Kelly, and
St. Arnold, the Defendants take the position that the case of
Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d
254 (1985), establishes a two year statute of limitation for a
civil rights action in the State of Illinois pursuant to
Ill.Rev.Stat. ch. 110, ¶ 13-202 (1983). The Defendants point
out that the Plaintiff admitted in her complaint that her
employment with the DCFS ended on August 5, 1983. However, the
Plaintiff did not file her amended action which, for the first
time, named the Defendants Ward, Lohmann, Kelly, and St.
Arnold, until August 28, 1985. The Defendants argue that the
complaint alleges unconstitutional actions which occurred prior
to August 5, 1983, when the Plaintiff left the DCFS. Therefore,
the claims must be barred because they were not filed within
the two year limitation period.
The Plaintiff responds to this argument in a number of
different ways. First, the Plaintiff claims that her complaint
states a continuing course of conduct in violation of 42 U.S.C. § 1983
which began in 1980 and continued through March, 1984.
As a result of this continuing course of conduct, Plaintiff
alleges that she has suffered damage to her reputation and
career opportunities which occurred after she was forced to
leave the DCFS. Because of this continuing course of conduct,
the Plaintiff argues that the date of August 5, 1983, is not
the date the Court should look at in determining when the
statute of limitation began to run.
Second, the Plaintiff argues that the United States Supreme
Court decision in Wilson v. Garcia, ___ U.S. ___, 105 S.Ct.
1938, 85 L.Ed.2d 254 (1985), did not expressly mandate that
Illinois use a two year statute of limitation for civil rights
actions filed within the state. Rather, argues the Plaintiff,
Wilson only requires that each state apply the most
appropriate statute of limitation for civil rights actions.
Civil rights actions encompass far more types of claims than
just personal injury actions. Therefore, in Illinois, the most
appropriate statute would be the five-year limitation period
for "civil actions not otherwise provided for." Ill.Rev.Stat.
ch. 110, ¶ 13-205 (1983).
Finally, the Plaintiff argues that even if the Court decides
that the two year statute of limitation period is appropriate
for civil rights actions in Illinois, the Court should refrain
from applying it on the facts of this case because the statute
would result in substantial inequities to the Plaintiff.
The Court will address first the question of whether the
statute of limitations for civil rights actions in Illinois is
a two year or five year period. The Court has carefully
considered the Supreme Court's decision in Wilson v. Garcia,
___ U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), and
concludes that Wilson requires Illinois courts to apply the
two year statute of limitation, according to Ill.Rev.Stat. ch.
110, ¶ 13-202 (1983). In the Wilson case, the Supreme Court
held that to serve the remedial purposes of the civil rights
statutes, each state should select the single most appropriate
statute of limitation for all § 1983 claims brought within that
state. The Court affirmed the Tenth Circuit's decision to
characterize civil rights actions as tort actions to recover
damages for personal injuries for the purpose of applying New
Mexico's three year statute of limitations governing actions
"for an injury to the person or reputation of any person." N.M.
Stat.Ann. § 37-1-8 (1978). In reaching this conclusion, the
"[G]eneral personal injury actions, sounding in tort,
constitute a major part of the total volume of civil litigation
in the state courts today, and probably did so in 1871 when §
1983 was enacted. It is most unlikely that the period of
limitations applicable to such claims ever was, or ever would
be, fixed in a way that would discriminate against federal
claims, or be inconsistent with federal law in any respect."
105 S.Ct. at 1949 (footnote omitted).
The Seventh Circuit has not yet ruled upon which Illinois
statute of limitations would be most appropriate for
application in § 1983 suits. However, the Seventh Circuit, in
the case of Bailey v. Faulkner, 765 F.2d 102 (7th Cir. 1985),
gave some indication of how it would decide this matter. In
Bailey, the Seventh Circuit said, "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, Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938, 85
L.Ed.2d 254 (1985), which is two years in Indiana, Ind.Code, §
34-1-2-2." 765 F.2d at 103.
Prior to the Wilson decision, the Seventh Circuit had held
that actions brought pursuant to 42 U.S.C. § 1983 in Illinois
were governed by the five year statute of limitation for "civil
actions not otherwise provided for." Beard v. Robinson,
563 F.2d 331 (7th Cir. 1977). Eight years later, though, after the
Supreme Court's decision in Wilson, the Seventh Circuit in
Bailey concluded rather matter-of-factly that the court
should apply the Indiana statute of limitations for personal
injury suits in a § 1983 suit in that state. The treatment of
this issue in the Bailey case convinces this Court that when
faced with the issue, the Seventh Circuit would hold that the
Wilson case overruled the Seventh Circuit's prior ...