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McKinney v. Office of Sheriff of Whitley County

United States District Court, N.D. Indiana, Fort Wayne Division

July 17, 2018

THE OFFICE OF THE SHERIFF OF WHITLEY COUNTY, and SHERIFF MARK HODGES, in his individual capacity, Defendants.


          William C. Lee, United States District Court.

         This 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.

         For the following reasons, the motion will be denied.


         On May 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.

         Defendants 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.

         McKinney 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.

         McKinney 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.

         The 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.

         In the 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 states:

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 affirmed.

         Thus, 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 limitations.

         As this 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).

         Additionally, 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 ...

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