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February 10, 1993

WILLIAM ROLAND, MARK ROSS-CORBETT, E.M. BRIDGES, RONALD GREEN, DAVID PARKER, DALE CLARK, in their individual capacities, THE CITY OF ZION, a municipal corporation, Defendants.

The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.


 Before the court is defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For reasons that follow the court grants the motion but grants the plaintiffs leave to file an amended complaint in accordance with this opinion.


 On March 27, 1988, at about 5:30 a.m., defendants William Roland and Mark Ross-Corbett, two officers of the City of Zion's police force, entered the home of plaintiffs Lazlo Ill and Valerie Ill and there arrested Lazlo, Valerie, and Miklas Ill (collectively referred to as "plaintiffs"). In this action under 42 U.S.C. § 1983 and pendent state tort claims, the complaint charges various counts of excessive force, assault and battery, and false arrest against these two defendants as well as against defendants E. M. Bridges, Ronald Green, David Parker, and Dale Clark, police officers who arrived shortly after the first two officers to assist in the arrest. The defendants allegedly executed an arrest without a warrant or probable cause. Furthermore, the defendant officers allegedly physically beat the plaintiffs with their hands and with billy clubs. In addition to these allegations, the complaint alleges that the officers, "without cause or justification," administered shocks to the plaintiffs by the use of stun guns.

 As a consequence of these alleged incidents, plaintiffs brought suit in state court against the police officers and the City of Zion on March 27, 1989, within the two-year statute of limitations. ILL. REV. STAT. ch. 110, P 13-202; *fn1" see Farrell v. McDonough, 966 F.2d 279, 281 (7th Cir. 1992) (Illinois statute of limitations for personal injury suits applied to all § 1983 claims arising in Illinois), cert. denied, 122 L. Ed. 2d 364, 1993 U.S. LEXIS 964, 61 U.S.L.W. 3499, 113 S. Ct. 1059 (1992). The City of Zion was a named defendant in the state law claims only, not in the § 1983 claims. Plaintiffs subsequently voluntarily dismissed the suit under ILL. REV. STAT. ch. 110, P 2-1009 on January 28, 1992, and filed a complaint in the federal court on October 6, 1992, adding the City of Zion as a defendant to the § 1983 claims. The limitations period expired in March 1990. Illinois law allows a plaintiff who voluntarily dismisses its case to refile the case within one year of the dismissal if the limitation period expires during the pendency of the original action. ILL. REV. STAT. ch. 110, P 13-217. All parties agree this last filing was within one year of the voluntary dismissal.

 Nonetheless, defendants filed the present motion to dismiss in December 1992 raising three arguments. First, defendants argue against application of P 13-217 in this case, asserting that Illinois's savings statute does not apply to § 1983 actions refiled in federal court. Consequently, defendants maintain the entire complaint must be dismissed as untimely. Secondly, defendants argue that, if P 13-217 does apply in this instance, it does not allow the plaintiffs to assert claims against the City of Zion that were not part of the original case in the state court. Last, defendants contend that the complaint does not sufficiently plead municipal liability. Therefore, defendants argue that the court should dismiss the City of Zion from the § 1983 claims. The court will address each issue in turn.


 The parties agree that the statute of limitations for the § 1983 claims is borrowed from Illinois's limitation provision for personal injury actions. See Owens v. Okure, 488 U.S. 235, 250 (1989); Wilson v. Garcia, 471 U.S. 261, 276-79, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). Therefore, the appropriate limitations period in the present case is two years. ILL. REV. STAT. ch. 110, P 13-202; Farrell, 966 F.2d at 281. The parties, however, dispute the application of the savings statute, ILL. REV. STAT. ch. 110, P 13-217, to the present case.

 The Illinois savings provision provides that, in actions where the time for commencing a suit is limited,

 if . . . the action is voluntarily dismissed by plaintiff . . . then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff . . . may commence a new action within one year or within the remaining period of limitation, whichever is greater . . . after the action is voluntarily dismissed by the plaintiff. . . .

 ILL. REV. STAT. ch. 110, P 13-217. This section thus provides for a one-year grace period within which a plaintiff can refile its case, without regard to the expiration of the limitations period. There is no federal counterpart to this provision.

 Defendants recognize that the borrowing of the state statute of limitations for § 1983 actions also brings along the state's tolling provisions as well. Wilson, 471 U.S. at 269; Board of Regents v. Tomanio, 446 U.S. 478, 485-86, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980). Yet defendants argue that the manner in which plaintiffs are presently attempting to utilize P 13-217 goes beyond the mere borrowing of a tolling provision. Illinois's statute, defendants assert, is not expressly characterized as a tolling provision. Defendants contend that, because the provision can be used in two ways -- only one of which actually tolls the limitations period (the other merely creating an entirely new time period within which to file) -- the court must analyze the context in which the statute is being used in order to adopt it for purposes of 42 U.S.C. § 1983. For instance, defendants argue, if a plaintiff voluntarily dismisses an action prior to the running of the limitations period but toward the end of the period, the savings provision allows for an extension of the limitations period beyond the original time limit for the commencement of the new action. This constitutes a "tolling." If, on the other hand, the voluntary dismissal is obtained after the original limitations period has run, as in the present case, there is nothing to toll because the original limitations date has "come and gone." Thus, the statute creates a new limitation period within which to bring suit. Although the plaintiff may commence a new action within one year, defendants insist that this is not the true equivalent of a "tolling" in the traditional sense and as such this application of the statute is not to be borrowed.

 On the other side of the coin, plaintiffs argue that the entire scope and nature of limitations issues in § 1983 cases should be interpreted by state law. This would include Illinois's provision regardless of how it is characterized. Plaintiffs note that at least two cases have applied P 13-217 to the refiling of a claim in federal court. See Locke v. Bonello, 965 F.2d 534, 538 (7th Cir. 1992); Abdallah v. Slagg, 803 F. Supp. 220, 221-22 (N.D. Ill. 1992). *fn2" Plaintiffs additionally note that the Fourth Circuit applied a similar savings provision of the Virginia code to a refiling of a § 1983 claim. *fn3" See Scoggins v. Douglas, 760 F.2d 535, 538 (4th Cir. 1985). But in Locke and Abdallah, jurisdiction was based on the diversity of citizenship of the parties. Furthermore, these decisions are grounded in the position that the savings provision is substantive in the nature under Erie R. Co. v. Tompkins, 304 U.Snonsuit. 64 (1938). See Abdallah, 803 F. Supp. at 222. Perhaps that is a good place to start, but the present controversy arrives in the federal forum by way of 28 U.S.C. § 1343 as an action to redress the deprivation of civil rights pursuant to 42 U.S.C. § 1983 and thus necessitates a separate examination. ...

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