563 F.2d 331 (7th Cir. 1977), 76-1708, Beard v. Robinson

Docket Nº:76-1708.
Citation:563 F.2d 331
Party Name:Eloise BEARD, as Administratrix for the Estate of Jeff Beard, the Deceased, Plaintiff-Appellant, v. Stanley B. ROBINSON, Roy Martin Mitchell, and Certain Officers of the Federal Bureau of Investigation, whose true identities are unknown to the plaintiff, Defendants-Appellees.
Case Date:September 28, 1977
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 331

563 F.2d 331 (7th Cir. 1977)

Eloise BEARD, as Administratrix for the Estate of Jeff

Beard, the Deceased, Plaintiff-Appellant,

v.

Stanley B. ROBINSON, Roy Martin Mitchell, and Certain

Officers of the Federal Bureau of Investigation,

whose true identities are unknown to the

plaintiff, Defendants-Appellees.

No. 76-1708.

United States Court of Appeals, Seventh Circuit

September 28, 1977

Argued Feb. 8, 1977.

Page 332

Harold C. Hirshman, Chicago, Ill., for plaintiff-appellant.

Thomas P. Sullivan, U. S. Atty., Alexandra M. Kwoka, Asst. U. S. Atty., Ronald S. Barliant, Chicago, Ill., for defendants-appellees.

Before BAUER and WOOD, Circuit Judges, and SHARP, District Judge. [*]

BAUER, Circuit Judge.

In this appeal we must determine whether damage claims brought against a state officer under the Civil Rights Acts, 42 U.S.C. § 1981, et seq., and against federal officers under the Fourth Amendment survive the death of the injured party, and whether the claims are time-barred. The district court held that some of the claims did not survive the death of the injured party and that the other claims were time-barred. We reverse.

Plaintiff Eloise Beard brought this action in the district court as administratrix of the Estate of Jeff Beard, who allegedly was murdered by the defendants. Plaintiff sued Stanley Robinson, a Chicago policeman at the time of the events underlying the suit, under the Civil Rights Acts, 42 U.S.C. § 1981, et seq., and the other defendants, Federal Bureau of Investigation personnel, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The complaint alleges that the defendants conspired to deprive, and actually deprived, Jeff Beard of his constitutional rights in the course of an FBI investigation into corruption among members of the Chicago Police Department. As part of the investigation, the FBI purportedly employed defendant William O'Neal to covertly gather information about the Department by engaging in criminal acts with Robinson and others. Defendant Roy Mitchell served as O'Neal's FBI contact. With the assistance of Mitchell and other unknown FBI agents, Robinson and O'Neal allegedly planned and committed Jeff Beard's murder on or about May 17, 1972, when they seized Beard in Chicago under the pretext that they had a warrant for his arrest, searched and handcuffed him, and drove him to Indiana, where Robinson clubbed and shot him to death. No warrant for Beard's arrest ever existed. The complaint, filed on September 25, 1972, seeks both compensatory and punitive damages from the defendants for violating Beard's rights under the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution.

Upon motion of the defendants, the district court dismissed the complaint. The court reasoned that our decision in Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974), mandates that federal civil rights actions survive for the benefit of an injured party's estate only to the extent that the applicable state law permits such claims to survive. Looking to the Illinois Survival Act, Ill.Rev.Stat. ch. 3, § 339, 1 the court concluded that the instant claims survived only insofar as they sought damages for the physical injuries Beard suffered. Relying on Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), the court then dismissed the action altogether because the physical injury claims were barred by Illinois's two-year statute of limitations. Ill.Rev.Stat. ch. 83, § 15.

II.

Survival

We turn first to the question of whether the claims alleged survive Beard's-

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death. Plaintiff presents several theories for the survival of her action. She argues that the action as a whole survives (1) under the Illinois Survival Act, both as an action to recover damages for "injur(ies) to the person" and as an action "against officers for misfeasance, malfeasance, or nonfeasance"; (2) under Illinois common law; and (3) under federal common law. We hold, as a matter of federal law, that under Illinois law the action survives "against officers for misfeasance, malfeasance or nonfeasance" and thus need not consider plaintiff's other arguments.

Neither the Civil Rights Acts nor the Supreme Court's decision in Bivens speaks to the abatement or survival of actions brought thereunder. Faced with the absence of a governing federal rule of decision, most courts that have considered the question of the survival of federal civil rights claims have looked to state law, either on the authority of 42 U.S.C. § 1988 2 or simply because reference to state law obviated the need to fashion an independent federal common law rule. E.g., Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961). At least one court has found it necessary to fashion an independent federal common law rule when state law, which would have defeated the survival of the federal claim, was deemed inconsistent with the strong federal policy of insuring the survival of federal remedies for violations of federal civil rights. Shaw v. Garrison, 545 F.2d 980 (5th Cir. 1977).

Because we believe the borrowing of state law in the circumstances of this case is completely consistent with the federal policies underlying Bivens and the Civil Rights Acts, we have no occasion to fashion an independent federal common law rule here. With respect to plaintiff's civil rights claims, 42 U.S.C. § 1988 authorizes our reference to state law insofar as it is "not inconsistent with the Constitution and laws of the United States." With respect to plaintiff's Bivens claim, the adoption of state law likewise seems warranted since it is consistent with the federal policies underlying Bivens. 3

The applicable Illinois law that we adopt as the governing federal rule is found in the Illinois Survival Act, Ill.Rev.Stat. ch. 3, § 339, which provides:

"In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section

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14 of Article VI of 'An Act relating to alcoholic liquors', approved January 31, 1934, as amended."

In view of the Illinois Supreme Court's declaration that this act is "remedial in its nature and is to be liberally construed," McDaniel v. Bullard, 34 Ill.2d 487, 491, 216 N.E.2d 140, 143 (1966), we believe the district court erred in relying on Kent v. Muscarello, 9 Ill.App.3d 738, 293 N.E.2d 6 (2d Dist. 1973), for the proposition that this action does not survive as an action "against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies." To be sure, Kent held that a malicious prosecution action against two Barrington, Illinois policemen did not survive the death of the injured party. Kent's holding that the policemen were not "officers" for the purposes of the Illinois Survival Act, however, was based on the fact that the policemen were not deemed "officers" at common law, by statute or by municipal ordinance. For the latter proposition, Kent relied on Krawiec v. Industrial Commission, 372 Ill. 560, 564, 25 N.E.2d 27 (1939), which held that policemen of the City of Chicago Heights, Illinois were not made officers of the City by municipal ordinance and thus were entitled to recover under the Illinois Workmen's Compensation Act. However, Krawiec itself distinguished City of Chicago v. Industrial Commission, 291 Ill. 23, 125 N.E. 705 (1920), which held that City of Chicago policemen were made officers by city ordinances and thus were not entitled to workmen's compensation benefits. Since City of Chicago has not been overruled by the Illinois Supreme Court and thus still stands for the proposition that Chicago policemen are officers of the City, we feel compelled to follow City of Chicago and hold that Chicago policemen are also "officers" for purposes of the Illinois Survival Act. Accordingly, we hold that the instant action brought against defendant Robinson, sued in his capacity as a Chicago policeman, survives Beard's death. See Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 129 (N.D.Ill.1972).

Moreover, inasmuch as FBI agents are deemed federal officers under federal law, see Lowenstein v. Rooney, 401 F.Supp. 952, 960-62 (E.D.N.Y.1975), we believe that plaintiff's Bivens action also can be characterized as an action "against officers" within the meaning of the Illinois Survival Act. Accordingly, adopting as federal law the Illinois Survival Act, we hold that plaintiff's Bivens action against the federal defendants survives as well.

III.

Statute of Limitations

Neither the Civil Rights Acts nor Bivens fixes a time limit within which suits brought thereunder must be commenced. As to plaintiff's civil rights claims, however, precedents establish that the applicable limitations period is that which a court of the State where the federal court sits would apply had the action been brought there. O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); Duncan v. Nelson, 466 F.2d 939, 941 (7th Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 152 (1972); see 42 U.S.C. § 1988. Hence, we look to Illinois law to determine the statute of limitations applicable to defendant Robinson.

As to plaintiff's Bivens claims, the parties to this action agree that the applicable...

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