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 decision in
Beard and requires that federal courts in Illinois apply the
Illinois two year statute of limitation for "injury to the
person." Ill.Rev.Stat., ch. 110, ¶ 13-202 (1983).
Furthermore, specific language in the Wilson v. Garcia case
indicates that the federal courts in Illinois should use the
two year personal injury statute of limitations in § 1983
actions. Throughout the Wilson v. Garcia decision, the
Supreme Court alternated among referring to § 1983 actions as
"a remedy for the violation of constitutional rights," actions
"involving claims for personal injuries," "a general remedy for
injuries to personal rights," and a remedy which encompasses "a
broad range of potential tort analogies, from injuries to
property to infringements of individual liberty." Despite these
different characterizations, the Supreme Court concluded that
under federal law, all § 1983 actions should be characterized
as personal injury actions and that state law should be looked
to for the statute of limitations appropriate for personal
injury actions. In Wilson, the Court concluded that the
applicable statute of limitation in New Mexico was the three
year statute "for an injury to the person or reputation of any
person" and rejected the argument that a § 1983 claim should be
governed by the four year limitation period for "all other
actions not herein otherwise provided for."
The Wilson Court considered and then expressly rejected the
argument in favor of applying New Mexico's "catch all" period
of limitations. The Court stated:
"The relative scarcity of statutory claims when § 1983 was
enacted makes it unlikely that Congress would have intended to
apply the catch all periods of limitations for statutory claims
that were later enacted by many States. Section 1983, of
course, is a statute, but it only provides a remedy and does
not itself create any substantive rights." 105 S.Ct. at 1948.
When the Seventh Circuit announced its decision that the five
year statute of limitations would apply to § 1983 actions in
Beard v. Robinson,