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Savory v. Cannon

United States Court of Appeals, Seventh Circuit

January 7, 2020

Johnnie Lee Savory, Plaintiff-Appellant,
William Cannon, Sr., as special representative for Charles Cannon, et al., Defendants-Appellees.

          Argued September 24, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:17-cv-00204 - Gary Feinerman, Judge.

          Before Wood, Chief Judge, and Easterbrook, Kanne, Rovner, Sykes, Hamilton, Barrett, Brennan, Scudder and St. Eve, Circuit Judges. [*]


         Johnnie Lee Savory spent thirty years in prison for a 1977 double murder that he insists he did not commit. Even after his release from prison, he continued to assert his innocence. Thirty-eight years after his conviction, the governor of Illinois pardoned Savory. Within two years of the pardon, Savory filed a civil rights suit against the City of Peoria ("City") and a number of Peoria police officers alleging that they framed him. The district court found that the claims accrued more than five years before Savory filed suit, when he was released from custody and could no longer challenge his conviction in habeas corpus proceedings. Because the statute of limitations on his claims is two years, the district court dismissed the suit as untimely. Savory appealed to this court, and the panel reversed and remanded after concluding that the claim was timely under Heck v. Humphrey, 512 U.S. 477 (1994), because it accrued at the time of Savory's pardon, within the two-year limitations period. We granted the defendants' petition for rehearing en banc and vacated the panel's opinion and judgment. We again conclude that Heck controls the outcome here, and we reverse and remand for further proceedings.


         In reviewing a grant of a motion to dismiss, we are required to assume that the facts alleged in the complaint are true, but we offer no opinion on the ultimate merits because further development of the record may cast the facts in a light different from the complaint. Dobbey v. Illinois Dep't of Con., 574 F.3d 443, 444, 447 (7th Cir. 2009). See also Tobey v. Chibucos, 890 F.3d 634, 645 (7th Cir. 2018) (on a motion to dismiss, a court must accept as true the well-pleaded factual allegations in the complaint). In January 1977, Peoria police officers arrested fourteen-year-old Savory for the rape and murder of nineteen-year-old Connie Cooper and the murder of her fourteen-year-old brother, James Robinson. According to the complaint, these officers subjected Savory to an abusive thirty-one hour interrogation over a two-day period. The officers fabricated evidence, wrongfully coerced a false confession from the teen, suppressed and destroyed evidence that would have exonerated him, fabricated incriminating statements from alleged witnesses, and ignored ample evidence pointing to other suspects. No legitimate evidence implicated Savory. His arrest, prosecution and conviction were based entirely on the officers' fabricated evidence and illegally extracted false confession.

         Savory was tried as an adult in 1977 and convicted of first degree murder. After that conviction was overturned on appeal, he was convicted again in 1981. He was sentenced to a term of forty to eighty years in prison. After Savory exhausted direct appeals and post-conviction remedies in state court, he unsuccessfully sought federal habeas corpus relief. He repeatedly petitioned for clemency and also sought DNA testing. After thirty years in prison, he was paroled in December 2006. Five years later, in December 2011, the governor of Illinois commuted the remainder of Savory's sentence. That action terminated his parole (and therefore his custody) but left his conviction intact. On January 12, 2015, the governor pardoned Savory of the crime of murder, [1] and declared that Savory was "acquitted and discharged of and from all further imprisonment and restored to all the rights of citizenship which may have been forfeited by the conviction." The pardon was granted with an "Order Permitting Expungement Under The Provisions Of 20 ILCS 2630/5.2(e)." R. 71-3. On January 11, 2017, less than two years after the pardon, Savory filed suit against the City and the police officers.

         That suit asserted six claims under 42 U.S.C. § 1983, five against the individual defendants and one against the City. The five counts against the individual defendants alleged that they: (1) coerced a false confession from Savory in violation of the Fifth and Fourteenth Amendments; (2) coerced a false confession from Savory in violation of his due process rights under the Fourteenth Amendment; (3) maliciously prosecuted Savory, depriving him of liberty without probable cause in violation of the Fourth and Fourteenth Amendments;[2] (4) deprived Savory of his right to a fair trial, his right not to be wrongfully convicted, and his right to be free of involuntary confinement and servitude in violation of the Thirteenth and Fourteenth Amendments; and (5) failed to intervene as their fellow officers violated Savory's civil rights. In the sixth count, Savory alleged that the City's unlawful policies, practices and customs led to his wrongful conviction and imprisonment in violation of section 1983. Savory also brought state law claims against the defendants but later conceded that those claims were untimely under the state's one-year statute of limitations. Those claims are not part of this appeal.

         The defendants moved to dismiss Savory's section 1983 claims on several grounds, but the district court addressed only one: the statute of limitations. The court recognized that, under Heck v. Humphrey, 512 U.S. 477 (1994), Savory could not bring his section 1983 claims unless and until he obtained a favorable termination of a challenge to his conviction. The parties agreed that the relevant statute of limitations required Savory to bring his claims within two years of accrual, but the parties disagreed on when the Heck bar lifted. Savory asserted that his claims did not accrue until he received a pardon from the Illinois governor on January 12, 2015, rendering his January 11, 2017 suit timely. The defendants asserted that the Heck bar lifted when Savory's parole was terminated on December 6, 2011, making his claims untimely. The district court concluded that the defendants had the better view of Heck and dismissed the claims with prejudice. Savory appeals.


         We review de novo a Rule 12(b)(6) dismissal on statute of limitations grounds. Tobey, 890 F.3d at 645; Amin Ijbara Equity Corp. v. Village of Oak Lawn, 860 F.3d 489, 492 (7th Cir. 2017). For a section 1983 claim, federal courts look to state law for the length of the limitations period. McDonough v. Smith, 139 S.Ct. 2149, 2155 (2019). See also Owens v. Okure, 488 U.S. 235, 249-50 (1989) ("where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions"). In Illinois, the applicable limitations period is two years. Tobey, 890 F.3d at 645. However, the "accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law." Wallace v. Kato, 549 U.S. 384, 388 (2007) (emphasis in original). Instead, certain aspects of section 1983 claims, including accrual dates, are "governed by federal rules conforming in general to common-law tort principles." Id. Under those common-law tort principles, claims accrue when a plaintiff has a complete and present cause of action. Id.; McDonough, 139 S.Ct. at 2155. So we must determine the first moment at which Savory had a complete and present cause of action.


         We begin our analysis of the accrual date for Savory's claims with Heck, which addressed whether and when a state prisoner may challenge the constitutionality of his conviction in a suit for damages under 42 U.S.C. § 1983. Heck, 512 U.S. at 478. While Heck was serving a fifteen-year sentence for manslaughter, he brought a section 1983 action against two prosecutors and a state police inspector asserting that they engaged in an unlawful investigation that led to his arrest, that they knowingly destroyed exculpatory evidence, and that they caused an unlawful voice identification procedure to be used at his trial. 512 U.S. at 478-79.

         The Court noted that such a case lies at the intersection of federal prisoner litigation under section 1983 and the federal habeas corpus statute. 512 U.S. at 480. The Court had first considered the potential overlap between these two statutes in Preiser, and held then "that habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983." Heck, 512 U.S. at 481 (citing Preiser, 411 U.S. at 488-90). Heck, however, was not seeking immediate or speedier release, but monetary damages, and so his claim was not covered by the holding of Preiser. Section 1983 created "a species of tort liability," and so in determining whether there were any bars to Heck's suit, the Court turned first to the common law of torts. Heck, 512 U.S. at 481, 483.

         Heck's section 1983 claim most closely resembled the common-law tort of malicious prosecution, which allows damages for confinement imposed pursuant to legal process, including compensation for arrest and imprisonment, discomfort or injury to health, and loss of time and deprivation of society. Heck, 512 U.S. at 484. See also McDonough, 139 S.Ct. at 2156 (finding that the plaintiff's section 1983 fabricated-evidence claim most closely resembled the tort of malicious prosecution). "One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused." Heck, 512 U.S. at 484. This requirement avoids creating two conflicting resolutions arising out of the same transaction -an extant, enforceable criminal conviction on the one hand, and a civil judgment implying the invalidity of that conviction on the other -and steers clear of parallel litigation over the issue of guilt. The requirement also prevents a convicted criminal from collaterally attacking the conviction through a civil suit:

We think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution.
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been 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, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Heck, 512 U.S. at 486-87 (footnotes omitted; emphasis in original).

         The Court made pellucid the broad consequences of its plainly stated rule:

We do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action. Even a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.

Heck, 512 U.S. at 489. Returning to its comparison to common-law torts, the Court concluded that, just as a claim for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff's favor, "so also a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." 512 U.S. at 489-90.

         The Supreme Court has reaffirmed the Heck framework several times. See Wallace, 549 U.S. at 393 (noting that the Heck rule for deferred accrual is called into play only when there exists a conviction or sentence that has not been invalidated; Heck "delays what would otherwise be the accrual date of a tort action until the setting aside of an extant conviction which success in that tort action would impugn.") (emphasis in original); Nelson v. Campbell, 541 U.S. 637, 646 (2004) (citing Heck for the proposition that "a § 1983 suit for damages that would 'necessarily imply' the invalidity of the fact of an inmate's conviction, or 'necessarily imply' the invalidity of the length of an inmate's sentence, is not cognizable under § 1983 unless and until the inmate obtains favorable termination of a state, or federal habeas, challenge to his conviction or sentence"); Edwards v. Balisok, 520 U.S. 641, 643, 645-48 (1997) (reaffirming the holding of Heck and extending it to claims challenging prison disciplinary proceedings that implicate the length of a prisoner's sentence). The Court most recently revisited Heck in McDonough v. Smith, 139 S.Ct. 2149 (2019). There, the Court held that a section 1983 claim for fabricating evidence in a criminal prosecution accrued upon acquittal, and not when the prosecutor's knowing use of the fabricated evidence first caused some deprivation of liberty for the plaintiff. 139 S.Ct. at 2153-54.

         The plaintiff in McDonough alleged that the prosecutor fabricated evidence in order to inculpate him, including falsifying affidavits, coaching witnesses to lie, and orchestrating a suspect DNA analysis to link McDonough to the crime. The prosecutor brought criminal charges against McDonough and presented the fabricated evidence at a trial which ended in a mistrial. The same prosecutor then retried McDonough, again presenting the fabricated evidence. The second trial resulted in an acquittal. McDonough asserted two claims in his section 1983 action, one for malicious prosecution and one for fabricated evidence. The district court dismissed the malicious prosecution claim as barred by prosecutorial immunity, and dismissed the fabricated evidence claim as untimely, finding that the claim accrued when the fabricated evidence was used against McDonough. The court of appeals affirmed, finding that McDonough had a complete fabricated-evidence claim as soon as he could show that the prosecutor's knowing use of fabricated evidence caused him some deprivation of liberty. Relying on Heck and its progeny, the Supreme Court reversed, concluding:

The statute of limitations for a fabricated-evidence claim like McDonough's does not begin to run until the criminal proceedings against the defendant (i.e., the § 1983 plaintiff) have terminated in his favor. This conclusion follows both from the rule for the most natural common-law analogy (the tort of malicious prosecution) and from the practical considerations that have previously led this Court to defer accrual of claims that would otherwise constitute an untenable collateral attack on a criminal judgment.

139 S.Ct. at 2154-55. In McDonough's case, favorable termination occurred at acquittal after the second trial.[3]

         The Court began the accrual analysis by identifying the specific constitutional right that had been infringed, a due process right not to be deprived of liberty as a result of the fabrication of evidence by a government officer. McDonough, 139 S.Ct. at 2155; Manuel v. City of Joliet, III, 137 S.Ct. 911, 920 (2017). Noting its frequent practice of deciding accrual issues by reference to common-law principles governing analogous torts, the Court concluded that the most analogous common-law tort for McDonough's fabricated-evidence claim was malicious prosecution.[4] See Heck, 512 U.S. at 484. Following that analogy, the Court concluded that McDonough could not bring his section 1983 fabricated evidence claim prior to the favor- able termination of his prosecution. McDonough, 139 S.Ct. at 2156. Citing Heck, Preiser, 411 U.S. at 490, and Younger v. Harris, 401 U.S. 37, 43 (1971), the Court reiterated the rationales underlying the favorable-termination rule:

[The] favorable-termination requirement is rooted in pragmatic concerns with avoiding parallel criminal and civil litigation over the same subject matter and the related possibility of conflicting civil and criminal judgments. ... The requirement likewise avoids allowing collateral attacks on criminal judgments through civil litigation. ... These concerns track similar concerns for finality and consistency that have motivated this Court to refrain from multiplying avenues for collateral attack on criminal judgments through civil tort vehicles such as § 1983.

McDonough, 139 S.Ct. at 2156-57 (internal citations and quotation marks omitted). Although Heck involved a plaintiff who had been convicted rather than a plaintiff who was acquitted, the Court found that:

the pragmatic considerations discussed in Heck apply generally to civil suits within the domain of habeas corpus, not only to those that challenge convictions. See Preiser, 411 U.S. at 490-491, 93 S.Ct. 1827. The principles and reasoning of Heck thus point toward a corollary result here: There is not" 'a complete and present cause of action/" Wallace, 549 U.S. at 388, 127 S.Ct. 1091, to bring a fabricated-evidence challenge to criminal proceedings while those criminal proceedings are ongoing.
Only once the criminal proceeding has ended in the defendant's favor, or a resulting conviction has been invalidated within the meaning of Heck, see 512 U.S. at 486-487, 114 S.Ct. 2364, will the statute of limitations begin to run.

McDonough, 139 S.Ct. at 2158.


         Applying the analytical paradigm of Heck and McDonough to Savory's case, we first look at the nature of his section 1983 claims and conclude that, like Heck's claims, they strongly resemble the common-law tort of malicious prosecution. Indeed, Savory's claims largely echo Heck's complaint, asserting the suppression of exculpatory evidence and the fabrication of false evidence in order to effect a conviction. There is no logical way to reconcile those claims with a valid conviction. Therefore, Heck supplies the rule for accrual of the claim. Because Savory's claims "would necessarily imply the invalidity of his conviction or sentence," his section 1983 claims could not accrue until "the conviction or sentence ha[d] been 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." Heck, 512 U.S. at 487. In Savory's case, that occurred on January 12, 2015, when the governor of Illinois pardoned him.[5] Gilbert v. Cook, 512 F.3d 899, 900 (7th Cir. 2008) ("the plaintiff in an action under 42 U.S.C. § 1983 may not pursue a claim for relief that implies the invalidity of a criminal conviction, unless that conviction has been set aside by appeal, collateral review, or pardon."). Until that moment, his conviction was intact and he had no cause of action under section 1983. Heck, 512 U.S. at 489-90. His January 11, 2017, lawsuit was therefore timely under Heck, and we must reverse the district court's judgment and remand for further proceedings.

         McDonough supports the same result. Because McDonough (who was not held in custody during his trials) was acquitted rather than convicted, his section 1983 claim would not have infringed upon the exclusivity of the habeas corpus remedy. The Court nevertheless indicated that the other concerns discussed in Heck still guided the outcome, and no section 1983 claim could proceed until the criminal proceeding ended in the defendant's favor or the resulting conviction was invalidated within the meaning of Heck. So too with Savory. Although his sentence had been served and habeas relief was no longer available to him (and thus habeas exclusivity was not at issue), the other considerations raised in Heck controlled the outcome: he had no complete cause of action until he received a favorable termination of his conviction, which occurred when the governor issued a pardon for the subject conviction.


         The defendants here contend that Savory's federal claims accrued when he was released from state custody in 2011, even though his conviction remained intact. The rule urged by the defendants would result in claims being dead on arrival in virtually all section 1983 suits brought in relation to extant convictions. "Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so[.]" Allen v. McCurry, 449 U.S. 90, 96 (1980). See 28 U.S.C. § 1738 (judicial proceedings of any court of any State "shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State"). In Allen, the Supreme Court considered "whether the rules of res judicata and collateral estoppel are generally applicable to § 1983 actions."[6] 449 U.S. at 96. The Court concluded that the usual rules of preclusion apply in section 1983 actions. 449 U.S. at 103-05. Federal courts apply the preclusion law of the state where the judgment was rendered, so long as the state in question satisfies the applicable requirements of the Due Process Clause. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82 (1982). The Heck bar accounts for the preclusive effect of state court criminal judgments on civil litigation by lifting the bar only when the plaintiff has achieved a favorable termination of the criminal proceeding. See Morgan v. Schott, 914 F.3d 1115, 1120 (7th Cir. 2019) (the Heck rule is a version of issue preclusion under which the outstanding criminal judgment or disciplinary sanction, as long as it stands, blocks any inconsistent civil judgment). Under the defendants' rule, a section 1983 claim would accrue on release from custody even though the conviction remained intact, and even though preclusion rules would effectively prevent the plaintiff from bringing any claim inconsistent with the original criminal conviction. Claimants like Savory, who obtained a pardon several years after release from custody and who may have the most meritorious claims, would be too late. Nothing in Heck requires such a result.


         Although a straight-forward reading of Heck and its progeny (including McDonough) determines the outcome here, we must address the defendant's arguments that concurring and dissenting opinions of certain Supreme Court justices cobbled together into a seeming majority or the opinions of this court may somehow override the prime directive of Heck. Several of our post-HecA: cases contain dicta or rely on reasoning that is in conflict with Heck and McDonough, and we must address and clarify those cases as well.


         The misunderstanding that led to the erroneous result in the district court here originated in a concurrence in Heck filed by Justice Souter and joined by Justices Blackmun, Stevens and O'Connor. In that concurrence, Justice Souter agreed that reference to the common-law tort of malicious prosecution was a useful starting point but he asserted that it could not alone provide the answer to the conundrum found at the intersection between section 1983 and the federal habeas statute. Ultimately, Justice ...

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