Wilson v. Giesen

• Decision Date: 18 December 1991
• Docket Number: No. 91-1013,91-1013
• Citation: 956 F.2d 738
• Parties: James R. WILSON, Plaintiff-Appellant, v. Linda A. GIESEN, County of Lee, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 738

956 F.2d 738

James R. WILSON, Plaintiff-Appellant, v. Linda A. GIESEN, County of Lee, et al., Defendants-Appellees.

No. 91-1013.

United States Court of Appeals Seventh Circuit.

Submitted Dec. 18, 1991. ^*

Decided Feb. 14, 1992.

James Wilson, pro se.

John A. Zimmermann, Eve Moran, Asst. Attys. Gen., Chicago, Ill., Thomas D. Murray, Daniel A. Fish, Office of State's Atty. of Lee County, Dixon, Ill., for defendants-appellees.

Before POSNER, COFFEY and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

James Wilson, an inmate at the Stateville Correctional Center, appeals the district court's dismissal of his civil rights complaint. The district court found that Wilson had not filed his complaint within the applicable statute of limitations. For the reasons discussed below, we affirm.

BACKGROUND

Wilson is an inmate in the Illinois prison system. Construed liberally, his pro se complaint alleged violations of 42 U.S.C. § 1983 by state correctional officials, as well as a conspiracy between these officials and Lee County to violate his first amendment, ¹ due process, and equal protection rights by wrongfully charging him with unlawful use of a weapon by a felon in January of 1986. ² 42 U.S.C. § 1985(3).

                Prison officials gave Wilson a disciplinary ticket for this offense when a search of his cell revealed a toothbrush with a razor blade melted into the handle.   The Institutional Inquiry Board approved the issuance of this ticket on March 6, 1986.   The Lee County prosecutor brought a criminal charge for this same offense on April 3, 1986, responding to a complaint filed by a prison official.   Wilson was convicted on September 23, 1987 and sentenced to ten years on November 5, 1987.   The Illinois Supreme Court denied review of the case on December 5, 1989
                

Applying Illinois' two-year statute of limitations, the district court found Wilson's complaint untimely. It noted that the claims here accrued, at the latest, on November 5, 1987 (the date of the sentencing). Therefore the limitations period expired on November 5, 1989. According to district court records, however, plaintiff did not file his complaint until November 14, 1989, nine days too late. The court did not consider whether the limitations period had been tolled or whether the complaint might actually have been received before November 5, 1989.

ANALYSIS

A. The Applicable Statute of Limitations

In Wilson v. Garcia, 471 U.S. 261, 279, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254 (1985), the Supreme Court held that actions under § 1983 should be characterized as personal injury claims, and, as such, were governed by the personal injury statute of limitations in the state where the alleged injury occurred. In applying these state limitations statutes, federal courts also follow the tolling laws of the state where the injury occurred. Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 2003, 104 L.Ed.2d 582 (1989); Board of Regents, University of New York v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1988). Federal law, however, determines the accrual of a claim. Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir.1989); Saldivar v. Cadena, 622 F.Supp. 949, 956 n. 2 (W.D.Wis.1985). Generally, a claim accrues when the plaintiff knows or has reason to know of the injury giving rise to the cause of action. Torres v. Superintendent of Police of Puerto Rico, 893 F.2d 404, 407 (1st Cir.1990). Civil rights claims, therefore, accrue when the plaintiff knows or should know that his or her constitutional rights have been violated. See Barrett v. United States, 689 F.2d 324 (2d Cir.), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983); Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir.1971) (section 1983 claim regarding the fourth amendment accrued at the time of the arrest and search, not when conviction was subsequently reversed); cf. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (section 1981 claim accrued when tenure decision was made and communicated, not when plaintiff was eventually fired).

The plaintiff has alleged that many employees of the Illinois Department of Corrections (IDOC) and Lee County conspired to retaliate against him for exercising his first amendment rights by "setting him up" for a prison rules violation and then disciplining and prosecuting him without due process of law. The injuries Wilson suffered because of these alleged wrongs were the punishment for his disciplinary ticket and the ten-year sentence imposed by the Lee County Court. A civil conspiracy claim accrues " 'when the plaintiff becomes aware that he is suffering from a wrong for which damages may be recovered in a civil action.' " Scherer v. Balkema, 840 F.2d 437, 440 (7th Cir.1988) (quoting Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir.1980)). Under these rules, Wilson's claim against Department of Corrections officials accrued at the latest on March 6, 1986, when his prison disciplinary ticket became final. ³ His claims against the County accrued on April 3, 1986, when he was prosecuted in state court. Given these accrual dates, the next step is to apply the proper state statute of limitations.

Kalimara v. Illinois Department of Corrections, 879 F.2d 276, 277 (7th Cir.1989) held that § 1983 cases arising in Illinois are governed by the two-year statute of limitations on personal injury claims. ⁴ Ill.Rev.Stat. ch. 110, p 13-202. Wilson argues, however, that this holding ought to be overturned in light of Gray v. Lacke, 885 F.2d 399 (7th Cir.1989), and Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). In Owens the Supreme Court stated that "where state law provides multiple statutes of ]imitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions." 488 U.S. at 250, 109 S.Ct. at 582. In Gray we followed Owens, applying Wisconsin's six year personal rights statute to a § 1983 claim, rather than a three-year statute covering "injuries to the person." Illinois, too, has multiple limitations statutes, one of which gives five years for "all civil actions not otherwise provided for." Ill.Rev.Stat. ch. 110, p 13-205. Wilson argues that, under Owens, we must apply this residual statute to § 1983 claims arising in Illinois. This argument is waived, however, as the plaintiff failed to raise it until his reply brief, leaving the defendants no chance to respond. Egert v. Connecticut General Life Insurance Co., 900 F.2d 1032, 1035 (7th Cir.1990). Thus, we apply the two-year statute of limitations.

B. Effect of Amending the Tolling Statute

Another statute, however, is also relevant to this case. Paragraph 13-211 of the Illinois Code of Civil Procedure tolls the statute of limitations for certain plaintiffs, and has been amended twice in recent years. Ill.Rev.Stat. ch. 110 p 13-211. Until November 23, 1987, paragraph 13-211 tolled the statute of limitations for a prisoner's claims until he was released. The amendment ("1987 amendment") that went into effect on that date, however, made the tolling provision inapplicable to claims against past or present employees of the Illinois Department of Corrections. A second amendment, effective January 1, 1991 ("1991 amendment"), deprived prisoners of any tolling benefits.

Since the plaintiff's claim involves IDOC officials and employees, we must decide what effect the 1987 amendment had on the timeliness of Wilson's complaint. The initial question here is whether the amendment shortened the statute of limitations or eliminated a legal disability. See Pearson v. Gatto, 933 F.2d 521 (7th Cir.1991) (recognizing that the amendment might be characterized as doing either, with differing results, but not deciding the question). Literally, of course, the amendment clearly shortened the limitations period, as under the new rule plaintiff would have to file by March 6, 1988 (two years from the accrual of his claim), whereas under the old rule he would have had until two years after his release. Alternatively, if the amendment eliminated a legal disability, he could file his complaint at any time within two years of the amendment. Kitching v. Ridings, 45 Ill.App.3d 555, 4 Ill.Dec. 203, 359 N.E.2d 1155 (2d Dist.1977); Goodwin v. Goldstein, 46 Ill.App.3d 704, 5 Ill.Dec. 128, 361 N.E.2d 128 (3d Dist.1977). Under this rule the statute of limitations would not have expired until November 23, 1989, and the plaintiff's complaint would be timely.

1. Shortening the Limitations Period

The general rule in Illinois is that when an amendment shortens a statute of limitations, it applies retroactively if the plaintiff has a reasonable time between the effective date of the amendment and the date when his claim would be barred under the amendment in which to file his claim. Phillips Products Co. v. Industrial Commission, 94 Ill.2d 200, 203-04, 68 Ill.Dec. 500, 446 N.E.2d 234, 236 (1983). Whether a period is reasonable is decided on a case-by-case basis. Pearson, 933 F.2d at 526. If the period is not reasonable, then the plaintiff is allowed a reasonable time to file. Mega v. Holy Cross Hosp., 111 Ill.2d 416, 95 Ill.Dec. 812, 490 N.E.2d 665 (1986). Under the 1987 amendment, Wilson's claim against prison officials would be time barred as of March 6, 1988, less than four months after the change took effect. This would not appear to be a reasonable window of time, especially if, as Wilson alleges, he was placed in segregation and shuttled from prison to prison during this period. Thus the question is whether his complaint was filed within a reasonable time after the amendment, in light of the specific facts of this case.

The complaint here was filed sometime between October 27 and November 2 of 1989, ⁵ meaning that the plaintiff waited roughly twenty-three months after the 1987 amendment to bring his claim. Was this a reasonable delay? Illinois courts have found delays of more than...