United States District Court, N.D. Indiana, Fort Wayne Division
TERRANCE S. McKINNEY, Plaintiff,
THE OFFICE OF THE SHERIFF OF WHITLEY COUNTY, and SHERIFF MARK HODGES, in his individual capacity, Defendants.
OPINION AND ORDER
William C. Lee, United States District Court.
matter is before the court on a motion to reconsider, filed
by the defendants, Office of the Sheriff of Whitley County
(“Whitley County”) and Sheriff Mark Hodges in his
individual capacity (“Hodges”), on June 11, 2018.
The Plaintiff, Terrance S. McKinney (“McKinney”)
responded to the motion on June 25, 2018. Defendants have
declined to file a reply.
following reasons, the motion will be denied.
21, 2018, this court entered an Order granting in part and
denying in part McKinney's second motion for leave to
file second amended complaint. This Order permitted McKinney
to add Mark Hodges as a defendant and to pursue a Section
1981 claim against both Hodges and Whitley County.
now request that the court reconsider the motion. As they
argued in their objection to the motion to amend, the
Defendants again argue that the statute of limitations for
McKinney's Section 1981 claim is two years, and that the
two years have expired. Defendants again rely on Campbell
v. Forest Pres. Dist of Cook Cty, Ill., 752 F.3d 665,
671 (7th Cir. 2014 and Jett v. Dallas Indep.
Sch. Dist, 491 U.S. 701, 733 (1989). Inexplicably,
Defendants also continue to argue that Section 1981 only
applies to express written employment contracts.
has correctly noted that the motion to reconsider does not
meet any category of cases where such a motion would be
appropriate. There is no manifest error of law or fact to
correct, nor is there newly discovered evidence to consider.
However, in an attempt to insure that everyone fully
understands the basis of granting the motion to amend, the
Court will entertain the motion to reconsider.
has sued his employer, Whitley County, for alleged race
discrimination. In his second motion for leave to file second
amended complaint, McKinney sought to add former Sheriff Mark
Hodges as a defendant, and to assert discrimination,
retaliation and disparate treatment claims pursuant to
Section 1981, against both defendants. The May 21, 2018 Order
granted both of these requests.
main issue raised by the motion to amend (and, now, the
motion to reconsider) was which statute of limitations
applied to the Section 1981 claims. Generally, Section 1981
has a two-year statute of limitations. Pursuant to 28 U.S.C.
Section 1658, a four-year limitations period applies to
causes of action “arising under an Act of Congress
enacted” after December 1, 1990. A cause of action
“arises under” such an enactment “if the
plaintiff's claim against the defendant was made possible
by a post-1990 enactment. Jones v. R.R. Donnelley &
Sons Co., 541 U.S. 369, 382 (2004). For Section 1981,
claims based on post-formation conduct, such as wrongful
termination, were made possible by the Civil Rights Act of
1991, and are subject to the four-year limitations period.
Dandy v. United Parcel Service, 388 F.3d 263, 269
(7th Cir. 2004). However, government employees
sued in their individual capacities are state actors for
purposes of Section 1981, and such claims must be brought
under Section 1983. The crucial question, on which there
appears not to be a Seventh Circuit case precisely on point,
is whether a claim brought against a state actor under
Section 1983, for a right secured by Section 1981, is
governed by the four-year limitations period.
motion to reconsider, Defendants claim that Campbell
(and by extension, Jett) are “precisely on
point”. Defendants are wrong. The plaintiff in
Campbell attempted to plead a Section 1981 action
against a state actor without also bringing a claim under
Section 1983. Thus, there was no need for the
Campbell Court to consider whether the four-year
limitations period of 28 U.S.C. Section 1658 applied, as the
Section 1981 claim could not be brought against a state actor
without an accompanying Section 1983 claim. However, in
dicta, the Seventh Circuit noted that the “one
might argue” that Section 1658's four-year statute
of limitations “should apply regardless”.
Campbell at 668. However, as the plaintiff in
Campbell had disavowed any reliance on Section 1983,
the Seventh Circuit declined to express an opinion on the
issue of which statute of limitations applied to a Section
1981 claim brought through a Section 1983 claim. As McKinney
notes, the conclusion of the Campbell opinion
Because 42 U.S.C. § 1981 does not create a private right
of action against state actors, Campbell's § 1981
claim against the FPD fails to state a claim upon which
relief can be granted. Moreover, Campbell does not challenge
the district court's decision to deny him leave to
replead under 42 U.S.C. § 1983. Therefore the district
court's order granting the FPD's motion to dismiss is
it is clear that the Seventh Circuit in Campbell was
not considering whether Section 1981 and Section 1983,
together, require a four-year statute of limitations.
Further, the dicta strongly suggests that if the
plaintiff in Campbell had plead a Section 1983
action to go with his Section 1981 action, that the Seventh
Circuit would have applied the four-year statute of
Court noted in its May 21, 2018 Order, the Eleventh Circuit
has held that the four-year period applies. Baker v.
Birmingham Bd. of Educ., 531 F.3d 1336 (11th
Cir. 2008). Additionally, The Seventh Circuit has held,
without any real discussion, that the four-year statute of
limitations applies in Section 1981 actions brought against
state actors. In Hall v. Village of Flossmoor, Ill.,
520 Fed.Appx. 468, 473 (7th Cir. 2013), the Court
held that the District Court correctly ruled that
Plaintiff's Title VII and Section 1983 claims were
untimely, “but was wrong about the Section 1981 claim.
The Section 1981 claim has a four year statute of
limitations, so it was timely.” In Moore v. City of
Chicago, 126 Fed.Appx. 745, 747 (7th Cir.
2005), an action by a Chicago police officer against the City
of Chicago, the Seventh Circuit stated: “Moore also
argues that the district court improperly applied a two-year
rather than a four-year statute of limitations period. The
City concedes that a four-year statute of limitations period
is proper for claims under Section 1981". Other district
courts in this Circuit have also held that the four-year
limitations period of Section 1658 applies to Section 1981
claims against state actors, brought through Section 1983,
holding that the limitations period for Section 1981 is an
exception to the general two-year period for Section 1983.
See e.g., Price v. Northern Illinois Univ.,
2017 U.S. Dist. LEXIS 205544, *6 (N.D. Ill.Dec. 14, 2017);
Sams v. City of Chicago, 2014 WL 6685809, *6 (N. D.
Ill. Nov. 25, 2014).
as McKinney notes in his response to the motion to
reconsider, Nitch v. Ester, No. 16-CV-06033, 2017
U.S. Dist. LEXIS 171338, 2017 WL 465088, ad *4 n. 5 ...