Opinion
No. 02 C 3038
March 17, 2003
OPINION
On April 29, 2002, plaintiff filed a civil rights claim under 42 U.S.C. § 1983 and state tort law claims of battery, perjury, obstruction of justice, defamation, and malicious prosecution, following a conviction of unlawful possession of a controlled substance with intent to deliver on December 7, 1983. Defendant Village of Wilmette and Defendants George Carpenter and Michael Gerlitz move to dismiss plaintiff's Second Amended Complaint for failure to state a claim. Additionally, Defendant Richard A. Devine has filed a separate motion to dismiss for failure to state a claim and for lack of jurisdiction over the subject matter.
Defendants Village of Wilmette, Carpenter, and Gerlitz jointly move to dismiss plaintiff's § 1983 claims because the claim is time-barred by the statute of limitations. In Illinois, the statute of limitations for § 1983 claims is two years. Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998). Although the statute of limitations is determined by state law, federal law governs accrual. Wilson v. Garcia, 471 U.S. 261, 268-71 (1985). According to federal law, the statute of limitations accrues upon the moment the plaintiff learns of an illegal act. Chardon v. Fernandez, 454 U.S. 6, 8 (1981). The Supreme Court in Heck v. Humphrey clarified the holding for § 1983 claims by stating that such claims are not viable unless the putative plaintiff's underlying conviction is "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." 512 U.S. 477, 487 (1994) (denying § 1983 damages to plaintiff, convicted of manslaughter, because the conviction had not been reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus). In the case at hand, plaintiff correctly filed within two years after the Circuit Court of Cook County, on November 29, 2001, vacated the 1983 conviction and ordered a new trial. Defendants argue that Heck applies to plaintiff's § 1983 claim in that the statute of limitations accrued, at the very latest, when Governor James R. Thompson issued a pardon expunging plaintiff's record of his 1983 conviction. However, the simple issuance of a pardon does not vest the recipient with an entitlement to expungement and return of the record. People v. Glisson, 372 N.E.2d 669, 670 (Ill. 1978). Although 20 ILCS 2630/5(c) has been amended to recognize the governor's power to specifically authorize expungement upon a pardon, in the instant case, plaintiff's letter of pardon, on its face, did not explicitly grant expungement of the record. This case can be distinguished from Wilson v. Lawrence County, Missouri, 154 F.3d 757, 761 (8th Cir. 1998), in which the pardon explicitly "obliterate[d] said conviction," and, on its face, ordered an expungement. Plaintiff filed within the appropriate statute of limitations because his record was not expunged until 2001, when his conviction was vacated by court order. Defendants Village of Wilmette, Carpenter, and Gerlitz also move to dismiss plaintiff's state law tort claims of battery, perjury, obstruction of justice, defamation, and malicious prosecution, because the claims are time-barred due to the statute of limitations.
Although defendants do not raise this point, one could argue that there is a kind of equitable estoppel that ought to be applied against plaintiff, who got his pardon in 1990 and never sought expungement, thus holding his case in abeyance until the passage of time made his case difficult to defend. This argument would fail because, among other things, plaintiff would, quite clearly, have sought expungement if he had been aware of it. The legal effect of a pardon which is not explicitly based on innocence is not well understood by lawyers, let alone an average citizen. Plaintiff's delay in expungement imposed heavy costs on him in terms of employment in law enforcement, so deliberate delay is not what occurred here. When he found a vehicle for expungement, he exercised it promptly and, given the record here, it would be unfair to tax plaintiff for failing to press the post-conviction petition. Finally, the passage of time may have made it far more difficult to prosecute this claim than to defend it, since none of the defendants were parties to the post-conviction proceeding, and neither the transcript of the hearing nor the finding of the state court would likely be admissible here. So plaintiff will have to re-gather his evidence and subject it to further discovery.
Illinois' Local Government and Governmental Employee's Tort Immunity Act provides that "no civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued." 745 ILCS 10/8-101. Plaintiff argues that equitable tolling of the statute of limitations and fraudulent concealment provisions apply. Indeed, the court in Shropshear v. City of Chicago, 275 F.3d 593, 595 (7th Cir. 2001) held that equitable tolling permits a plaintiff to avoid the bar of the statute of limitations if despite the exercise of all due diligence, he is unable to obtain vital information bearing on the existence of his claim. Additionally, the state statute for fraudulent concealment provides that "if a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards." 735 ILCS 5/13-215. In this case, plaintiff should have been aware when his causes of action accrued.
Plaintiff's claim of battery accrued at the time of arrest. Plaintiff's claims of perjury, obstruction of justice, defamation, and malicious prosecution accrued at the time of his trial and conviction in 1983. Plaintiff counters that he was unable to bring forth these allegations because the paid informant, a key witness to these claims, has been out of state for a considerable time. However, plaintiff had the opportunity to use the informant's testimony, since plaintiff was aware of the informant's whereabouts a month before trial. Even taking into account the statute of limitations provided by Illinois' statute on fraudulent concealment, at the very latest, plaintiff should have brought forth these claims in 1988, five years after his conviction in 1983.
Defendant Devine has filed a separate motion to dismiss for failure to state a claim and for lack of jurisdiction over the subject matter. Devine asserts that plaintiff has failed to allege the requisite elements of a § 1983 action against him in either his individual or official capacities. There are no allegations that Devine caused or participated in any of plaintiff's alleged constitutional violations, and plaintiff does not respond to these arguments in his response to Devine's motion to dismiss, so they are taken as conceded. For the reasons stated above, plaintiff's state law tort claims of battery, perjury, obstruction of justice, defamation, and malicious prosecution are dismissed. The motion to dismiss plaintiff's § 1983 claim is denied.