466 F.2d 939 (7th Cir. 1972), 71-1208, Duncan v. Nelson

Docket Nº:71-1208.
Citation:466 F.2d 939
Party Name:James Richard DUNCAN, Plaintiff-Appellant, v. John NELSON et al., Defendant-Appellees.
Case Date:March 29, 1972
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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466 F.2d 939 (7th Cir. 1972)

James Richard DUNCAN, Plaintiff-Appellant,


John NELSON et al., Defendant-Appellees.

No. 71-1208.

United States Court of Appeals, Seventh Circuit.

March 29, 1972

Rehearing Denied April 25, 1972.

Certiorari Denied Oct. 10, 1972. See 93 S.Ct. 116, 175.

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Paul D. Frenz, McBride, Baker, Wienke & Schlosser, Chicago, Ill., for plaintiff-appellant.

Richard L. Curry, Corp. Counsel, William R. Quinlan, Edmund Hatfield, John Elson, Asst. Corp. Counsels, James G. O'Donohue, O. R. Hamlink, Norman J. Barry, M. I. Mishkin, Joseph P. Della Maria, Jr., Chicago, Ill., for defendants- appellees.

Before DUFFY, Senior Circuit Judge, SPRECHER, Circuit Judge, and ESCHBACH, District Judge. [*]

ESCHBACH, District Judge.

This is a review of an order dismissing a civil action arising out of appellant's civil rights complaint under 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. §§ 1983 and 1988, in which appellant seeks compensatory relief for an alleged deprivation of his rights secured by the Fourteenth Amendment, which deprivation is founded upon an alleged involuntary confession extracted by these defendants. In dismissing plaintiff's complaint, the district court held that the applicable statute of limitations had expired and that the defendant police officers could not be held liable for the improper act of an Illinois state court in admitting into evidence an involuntary confession, which allegedly led to plaintiff's conviction and incarceration. We reverse and remand.

Plaintiff's complaint alleges in substance the following facts: Five of the six defendants were police officers for the City of Chicago; the remaining defendant was a police officer for the Chicago Transit Authority. At all times related herein, the defendants were acting under color of the statutes, ordinances, and regulations of the State of Illinois, the City of Chicago, and the Chicago Transit Authority. On November 12, 1959, the plaintiff was taken into custody by two of the defendants as he was leaving Boys Court. He was thereafter individually and jointly interrogated by the defendants from 9:30 a. m. until 7:42 p. m. concerning the murder of one Samuel Schwartz. The result of this interrogation was an oral followed by a written confession of guilt for that murder. On January 20, 1960, over defendant's objection, the confession was admitted into evidence, and plaintiff was subsequently convicted of the murder of Samuel Schwartz. Plaintiff was sentenced to 30 years imprisonment and was confined from January 27, 1960 to December 20, 1968. In 1968, the Supreme Court of Illinois held that the confession obtained by these defendants was involuntary and that it was error to admit it as evidence. The case was remanded for new trial and at that trial, where the involuntary confession was excluded, plaintiff was acquitted.

Plaintiff alleges that the acts of these defendants deprived him of life, liberty, and property without due process in violation of the Fourteenth Amendment of the United States Constitution. Plaintiff submits that as a direct and proximate

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result of the aforementioned acts of these defendants, he suffered bodily pain and injury, mental anguish, and that he has lost and will lose large sums of money by reason of having been imprisoned illegally for over nine years.

The foregoing is the extent of plaintiff's well-pleaded material allegations, and for the purposes of defendant's motion to dismiss they are deemed admitted. Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1957); Dacey v. New York County Lawyers' Ass'n, 423 F.2d 188 (2d Cir. 1970), cert. denied, 398 U.S. 929, 90 S.Ct. 1819, 26 L.Ed.2d 92 (1970). The district court, however, in dismissing this cause also took notice of the opinion of the Illinois Supreme Court in People v. Duncan, 40 Ill.2d 105, 238 N.E.2d 595 (1968), which set aside plaintiff's earlier conviction. The district court presumably accepted as true the facts found in that opinion and related those facts in dismissing this cause in the district court. In People v. Duncan, supra, the court found as uncontroverted fact that the plaintiff, prior to his interrogation, had been in custody on another unrelated charge. They further found that for the immediate 18 days prior to this interrogation, plaintiff had been placed in the "hole," a form of solitary confinement, where he slept on the floor, received one meal a day, and saw neither family nor friends. On his release from custody at about 9:30 a. m. on the morning of November 12, 1959, the defendants, knowing plaintiff had been in the "hole," apprehended him, removed him to an upstairs room, handcuffed him to a chair, and proceeded to interrogate him until he orally confessed at 1:30 p. m. and signed a written confession at 7:42 p. m. that evening. In that action, plaintiff had also alleged physical violence and threats, but the court there did not find it necessary to reach those allegations.

In finding that the applicable statute of limitations had expired, the district court did not provide us with the statutory basis for that holding. The statute under which this action was brought, 42 U.S.C. § 1983, does not provide for any period of limitations. In this situation, it is clear that we must look to the statute of limitations which Illinois would enforce had this action been brought there. O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); Hornsby v. Fishmeal Company, 431 F.2d 865 (5th Cir. 1970); Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1959). Illinois has no statute of limitations directly applicable for an action alleging deprivation of civil rights.

This court in Wakat v. Harlib, supra, held that the most appropriate statute in Illinois for an action under 42 U.S.C. § 1983 would be ch. 83,§ 16, Ill.Rev.Stat. 1969, which creates a five-year statutory period for bringing civil actions not otherwise provided for. The only alternative statutory period presented in this appeal was ch. 83, § 15, Ill.Rev.Stat. 1969, which provides for a two-year period in actions for damages with injury to the person. Although we see no reason to depart from our holding in Wakat, supra, whichever statute was chosen here would not affect the result of this issue because both statutes would be tolled during plaintiff's minority and his term in prison.

It is generally held that whether an applicable state statute has been tolled in a federal action is a matter governed by state law. Jones v. Bombeck, 375 F.2d 737 (3d Cir. 1967); Hughes v. Smith, 264 F.Supp. 767 (D. N.J.1967), aff'd, 389 F.2d 42 (3d Cir. 1967); Gordon v. Garrison, 77 F.Supp. 477 (E.D.Ill.1948). Illinois law provides that either of the above-mentioned statutory periods will be tolled under certain disabilities, and such statute provides in pertinent part:

If the person entitled to bring an action . . . is, at the time of [sic] the cause of action accrued, within the age of twenty-one years, . . . or imprisoned on a criminal charge, he . . . may bring the action within

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two years after the disability is removed. Ch. 83, § 22, Ill.Rev.Stat. (1969).

On November 12, 1959, the date of plaintiff's alleged unlawful interrogation, and the earliest date on which his cause could have accrued, plaintiff was 18 years of age. Until he attained the age of 21 in 1962, the statute was obviously tolled. Upon reaching the age of majority in 1962, plaintiff was imprisoned on a criminal charge, and that disability remained until his release from custody on December 20, 1968. The present action was filed on May 26, 1970, approximately one and one-half years after the disability had been removed. Consequently, irrespective of which statutory limitation period is applied, the two or five-year period, the present cause was brought within the two-year post-disability period provided for in ch. 83, § 22, Ill.Rev.Stat. (1969).

As an additional ground for dismissing this action, the district court concluded that "the improper act of the trial court [in admitting this evidence] is not the act of the police officers." Earlier in the court's order of dismissal, it explained this holding by stating that "the error was not in the manner of the taking of the confession which was to blame for the plaintiff's incarceration, but rather the admission of inadmissible confessions into evidence." Obviously, the district court construed the complaint as one seeking damages only for the harm which befell plaintiff as a result of his conviction and confinement. To the extent the court held that plaintiff may not recover damages for his conviction and incarceration, we agree.

Presumably, the district...

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