Nahmod Law

In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.

Below is the fifth–and one of the most widely viewed–of these posts. I hope you find it to be informative.

Introduction

This is the fifth of my section 1983 primers. This post addresses the important, and threshold, question of statutes of limitations, accrual and tolling in section 1983 cases.

The Basics

Because section 1983 does not have its own statute of limitations, it is “deficient” within the meaning of 42 U.S.C. section 1988. Under the provisions of that statute, where federal law is deficient, federal courts are to apply the relevant law of the forum state, unless the relevant law of the forum state is inconsistent with federal law or policy or discriminates against federal claims.

As a consequence of section 1988, statutes of limitations issues arising in section 1983 cases constitute an unusual amalgam of federal and state law regarding the choice of the proper limitations period, accrual and tolling.

Choosing the proper limitations period

The leading case is Wilson v. Garcia, 471 U.S. 261 (1985), which held that the forum state’s personal injury statute of limitations governs. This means that there is no national uniformity.

If the forum state has more than one possibly applicable personal injury statute of limitations, then the state’s residual or general statute of limitations governs. Owens v. Okure, 488 U.S. 235 (1989).

Accrual

When a section 1983 claim accrues–when all of the elements of the claim are present–is a matter of federal law. The governing accrual rule for section 1983 is the medical malpractice discovery accrual rule, meaning that the statute of limitations for a section 1983 claim begins to run when the plaintiff knew or had reason to know of the injury. See United States v. Kubrick, 444 U.S. 111 (1979).

In the employment setting, it is the date of the challenged conduct, such as the alleged racial or sex discrimination, that begins the running of the applicable limitations period, not necessarily when the employee is no longer employed.   Delaware State College v. Ricks, 449 U.S. 250 (1980).

There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action. In such cases, the section 1983 claim does not accrue until the underlying conviction is overturned or vacated. See also the important 2007 decision in Wallace v. Kato, 549 U.S. 384 (2007), dealing with Heck, accrual and section 1983 false arrest/imprisonment claims.

More recently, in McDonough v. Smith, 139 S. Ct. 2149 (2019), the Supreme Court ruled that a section 1983 due process claim of fabrication of evidence claim resulting in criminal prosecution and trial accrues when the plaintiff is acquitted on all charges. And in 2022, the Supreme Court held that a plaintiff’s section 1983 Fourth Amendment malicious prosecution claim accrues when there is a favorable termination of the criminal charges against the plaintiff, even if that termination does not affirmatively demonstrate the plaintiff’s innocence. Thompson v. Clark, 142 S. Ct. 1332 (2022).

Tolling

In contrast to accrual, whether a section 1983 claim is tolled is a matter of state law. The Court so held in Board of Regents v. Tomanio, 446 U.S. 478 (1980), with respect to individual actions, and in Chardon v. Fumero Soto, 462 U.S. 650 (1983), with respect to class actions, a case that I argued in the Supreme Court on behalf of the victorious plaintiffs.

A state savings statute is a particular kind of tolling statute that stops the running of the applicable limitations period for claims timely filed but subsequently dismissed for improper venue, for want of jurisdiction or for other reasons not related to the merits.

Comment

There is so much about statutes of limitations that cannot even be hinted at here. For a comprehensive discussion of this technical subject, see NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 9 (2023-24 edition)(CIVLIBLIT on Westlaw).