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