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DOE v. CALUMET CITY

February 6, 1989

JANE DOE, et al., Plaintiffs,
v.
CALUMET CITY, ILLINOIS, et al., Defendants


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 This 42 U.S.C. ยง 1983 ("Section 1983") class action asserts the unconstitutional strip searching of women arrested on misdemeanor or ordinance violations charges in Calumet City, Illinois. For the reasons stated in this memorandum opinion and order, this Court confirms that the plaintiff class comprises all women so arrested after April 16, 1982 (that is, at any time less than five years before this action was brought).

 Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985) stilled the sharply divergent voices that had previously spoken to the issue of limitations under Section 1983, by issuing the kind of definitive pronouncement only the United States Supreme Court can make:

 
1. State rather than federal statutes of limitations would apply to all Section 1983 actions, but in each state there would be a unitary standard.
 
2. That single standard for each state would be the one drawn from its limitations period covering claims that were described in the Wilson opinion by using a number of variants of the same concept -- "a general remedy for injuries to personal rights," "claims for personal injuries," "general personal injury actions, sounding in tort" and "personal injury actions." *fn1"

 This Court, confronted like others with the task of applying Wilson to Illinois-based Section 1983 claims, had initially made what seemed a natural assumption that the Wilson-mandated approach would bring the Illinois "damages for an injury to the person" statute (Ill. Rev. Stat. ch. 110, Para. 13-202 ["Section 13-202"]) into play. *fn2" But within a few months after Wilson, this Court was met with a submission by a perceptive lawyer who had been willing to challenge that assumption as perhaps natural in surface terms but nonetheless wrong, and who backed the challenge up with unchallengeable authority. *fn3"

 That presentation led to this Court's opinion in Shorters v. City of Chicago, 617 F. Supp. 661 (N.D. Ill. 1985). There this Court reached the conclusion, for what it then believed -- and still believes -- unassailable reasons, that the Wilson approach commands application of the Illinois five-year general residual statute of limitations (Ill. Rev. Stat. ch. 110, Para. 13-205 ["Section 13-205"]) and not Section 13-202's two-year limitations period. This opinion will not repeat the already-published Shorters analysis, except to restate the surprising but incontrovertible discovery that -- under an unbroken line of Illinois case law -- Section 13-202 is not at all a general statute covering a spectrum of tort claims comparable to the wide swath embraced by Section 1983 actions, but is rather far more limited in its scope.

 Not long after Shorters the Wilson question came, as it was bound to, before our Court of Appeals in Anton v. Lehpamer, 787 F.2d 1141 (7th Cir. 1986). But in Anton the Court of Appeals concentrated exclusively on (1) the question of Wilson's retroactivity and (2) the related question of a window to cover the situation of litigants who had in the past been entitled to rely on the Court of Appeals' decision in Beard v. Robinson, 563 F.2d 331 (7th Cir. 1977) (Beard had applied the same five-year statute this Court later found applicable in Shorters, though on a different analytical theory).

 Anton made the same facile (and natural) assumption this Court had made pre-Shorters: It proceeded on the unexamined premise that the two-year "injury to the person" statute applied, and it took the analysis from there. Indeed, all Anton voiced as to the applicable statute was a conclusory statement of that premise, 787 F.2d at 1142 (footnote quoting Section 13-202 omitted):

 
More than four years after Mr. Anton filed suit, the Supreme Court held that, in all states, the most analogous statute of limitations for all section 1983 actions is the state's personal injury statute of limitations. Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985). In Illinois, the statute of limitations for personal injury actions is two years. See Ill.Rev.Stat. ch. 110, Para. 13-202 (1983).

 Since Anton the substantive question has remained unexamined by our Court of Appeals -- so far as this Court can tell from its weekly reading of that court's slip opinions, the argument as to the nongenerality of Section 13-202 that this Court found both impeccable and persuasive in Shorters has never come before the Court of Appeals.

 Faced with that situation and compelled in this case to decide the Section 1983 statute of limitations question in the context of certifying the plaintiff class, this Court resolved the matter by a conditional certification. Practical problems posed by the discovery process meant that the class period could be contracted -- if necessary -- but could not conveniently be expanded in the future. This Court therefore settled on the five-year statute that it continues to believe called for by the Wilson-Shorters analysis, while at the same time cautioning the class members that a shorter period might prove applicable. As stated in the December 15, 1987 notice to class members that this Court approved (emphasis in original):

 
This letter is being sent to you because court records show that you were arrested on a misdemeanor or ordinance violation charge in Calumet ...

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