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March 1, 1991


The opinion of the court was delivered by: Richard Mills, District Judge:


In the aftermath of the Supreme Court's decision in Rutan v. Republican Party of Illinois, ___ U.S. ___, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), several prominent issues regarding retroactivity and qualified immunity necessarily have arisen.

This case, in part, involves such questions.

I. Facts

The Plaintiff, James Walsh, was hired by the City of Springfield as a firefighter in 1972 and rose through the civil service system to the rank of Battalion Chief in 1988. Pat Ward is the elected director of the Springfield Department of Public Safety which encompasses the fire department. Thomas Oseland is the Fire Chief of the City of Springfield and serves at the will of the Director of Public Safety.

Prior to his elevation to the position of Battalion Chief, Plaintiff was employed as a Captain and assigned duties with an engine company. Plaintiff's work schedule required a 24-hour shift followed by 48-hours off-duty. Because of this schedule he enjoyed the opportunity to engage in employment and business opportunities independent of his duties as a firefighter during his off-duty hours.

During October 1988, after placing first on the civil service examination, Plaintiff was promoted to the rank of Battalion Chief and assigned a position with the training division of the Springfield Fire Department. Because of his new assignment, Plaintiff was required to work a "normal" 40 hour work week thus losing the opportunity to engage in outside employment. Plaintiff allegedly is less qualified for the training position than other individuals who placed lower on the civil service eligibility list for Battalion Chief and who were appointed to that rank. Traditionally, the most senior individual on the eligibility roster (Plaintiff) would have his selection of shift assignments.

Plaintiff alleges that "for many years" he has openly expressed critical opinions regarding the manner in which Pat Ward performed his role as Director of the Department of Public Safety and, from time to time, supported candidates for elective office who ran against Pat Ward. Plaintiff's assignment to the training position by Defendants is allegedly in retaliation for his "expressions of political views."

Plaintiff alleges that Defendants' retaliation violates the first and fourteenth amendments and seeks compensatory and punitive damages, attorney's fees and costs pursuant to 42 U.S.C. § 1983, 1988.

Defendants have moved to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b) on three grounds. First, Defendants argue that Plaintiff's cause of action is barred by the two-year statute of limitations governing § 1983 actions. Second, Defendants contend that Rutan should not be applied retroactively. Third, to the extent that they are sued in their individual capacities, Defendants argue that they enjoy qualified immunity.

II. Motion to Dismiss

In ruling on a motion to dismiss, the Court "must accept the well pleaded allegations of the complaint as true. In addition, the Court must view these allegations in the light most favorable to the Plaintiff." Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). The applicable rules do not necessitate a detailed outline of the claim's basis. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). Still, a "complaint must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985).

III. Analysis

A. Statute of Limitations

Plaintiff filed this action on October 5, 1990. In Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) the Supreme Court held that the applicable statute of limitations for § 1983 claims is the state period for personal injury torts. Recently in Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) the Supreme Court reaffirmed its holding in Wilson and held that all § 1983 actions are to be governed by a single state limitation period for torts in general rather than a statute of limitations limited to specific intentional torts.

Under Illinois law, a general two-year statute of limitations applies to tort actions. Ill.Rev.Stat. ch. 110, ΒΆ 13-202. See Kalimara v. Illinois Dep't of ...

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