Skrapits v. Skala
| Decision Date | 26 June 1970 |
| Docket Number | No. 69 C 2217.,69 C 2217. |
| Parties | Anton SKRAPITS, Plaintiff, v. Anthony SKALA and James Divis, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
William J. Nellis, of Blacher, Buckun & Nellis, Chicago, Ill., for plaintiff.
John F. Laughlin, of Price, Schlager, Burgeson & Thomas, Chicago, Ill., for defendants.
Motion To Dismiss
This is a civil rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations of rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution. The incident giving rise to this action allegedly involved false imprisonment and malicious prosecution accompanied by physical injury. Defendants have moved to dismiss this action for failure to comply with a six month notice provision of Illinois law, Ill.Rev.Stat. Ch. 85, § 8-102 (1967).
Where, as in Federal civil rights actions, a Federal statute does not provide a limitations period, appropriately analogous state limitations provisions are to be invoked. Baker v. F & F Investment, 420 F.2d 1191, 1193-1197 (7th Cir. 1970); Jones v. Jones, 410 F.2d 365, 366 (7th Cir. 1969). Because an action based on 42 U.S.C. § 1983 is a statutory right of action, the Seventh Circuit has held that it is "a `civil action not otherwise provided for' within the meaning of Ill.Rev.Stat. Ch. 83, § 16 (1967) and is governed by the five-year statute." Wakat v. Harlib, 253 F. 2d 59, 63 (7th Cir. 1958). However, in another factual situation, the details of which are not reported, a section 1983 action was the subject of a two year limitations provision Ill.Rev.Stat. Ch. 83, § 15 (1967) applicable to damage actions for personal injury, false imprisonment and malicious prosecution. Jones v. Jones, 410 F.2d 365, 367 (7th Cir. 1969).
The Complaint alleges that the beatings and improper arrest and imprisonment occurred on November 22, 1968. The Complaint was filed on October 28, 1969. Having been filed within one year of the alleged incident, the Complaint is not violative of any limitations period.
Defendants' contention that the notice provision of Ill.Rev.Stat. Ch. 85, § 8-102 (1967) applies is not well founded. That provision states that in tort actions involving public employees detailed notice of a personal injury must be served on the employer public entity within six months after the alleged accident. Under Ill.Rev.Stat. Ch. 85, § 8-103 (1967) failure to serve this notice timely bars subsequent action. See Fannon v. City of Aurora, 106 Ill.App.2d 408, 410, 245 N.E.2d 286 (1969); Schear v. City of Highland Park, 104 Ill.App.2d 285, 289, 244 N.E.2d 72 (1968).
The defect in defendants' argument is that the cited sections, especially in comparison to other limitations provisions, are not closely analogous to the instant action. Historically...
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