Snodderly v. R.U.F.F. Drug Enforcement Task Force

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3688

Bill R. Snodderly, Kathy Snodderly,

and Derick Snodderly, a minor,

Plaintiffs-Appellants,

v.

R.U.F.F. Drug Enforcement Task Force, Board

of Commissioners of Union County, IN, Board

of Commissioners of Shelby County, IN, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana.

No. 98 C 195--John D. Tinder, Judge.

Argued September 13, 2000--Decided February 7, 2001

Before Flaum, Chief Judge, and Bauer and Kanne,

Circuit Judges.

Bauer, Circuit Judge. Plaintiffs-Appellants Bill

Snodderly et al. ("Snodderly") appeal from the

dismissal of a host of federal and state claims

which they brought against several police

officers, an inter-district drug enforcement task

force, and various Indiana municipalities for

damages they claimed to have suffered when Bill

Snodderly was arrested and prosecuted on baseless

drug charges. The district court dismissed all of

the federal claims save for the malicious

prosecution claim against several prosecutor-

defendants as barred by Indiana’s two-year

statute of limitations, which is applicable to

all causes of action brought in Indiana under 42

U.S.C. sec. 1983. Finding that the prosecutor-

defendants were absolutely immune from suit on

the federal malicious prosecution claim, the

court dismissed this claim as well, and declined

to exercise pendent jurisdiction over any of the

remaining state law claims. For the reasons set

forth below, we affirm.

BACKGROUND

We take the following factual account from the

plaintiffs’ complaint as true, as we must on

review of a motion to dismiss. Snodderly owns the

C.C. Tavern in West College Corner, Indiana. On

October 4, 1993, the R.U.F.F. Drug Enforcement

Task Force sent Michael Zinman, an undercover

informant, to West College Corner to attempt to

buy illegal drugs from potential suspects. Later

that day, Zinman informed R.U.F.F. Officer

Patrick that he had made arrangements to purchase

two ounces of marijuana from a man named "Bill,"

who had been identified to Zinman as a bartender

at the C.C. Tavern. Officer Keith contacted

Officer Marcum to determine the identity of "Bill

the Bartender," and Marcum sent Keith a

photograph of Snodderly. That evening, Officer

Haehl of the R.U.F.F. Task Force accompanied

Zinman (who was "wired" with audio recording

equipment) to the C.C. Tavern and made the pre-

arranged drug purchase as planned. Either before

or during the purchase, Bill the Bartender told

Zinman and/or Haehl where he lived and what type

of vehicle he drove./1 Zinman and Haehl

subsequently returned to the C.C. Tavern several

times in hopes of purchasing more drugs from Bill

the Bartender. However, they never saw him at the

tavern again.

The R.U.F.F. officers made Snodderly the focus

of their investigation, operating on the

assumption that he was "Bill the bartender." The

officers did not follow up on leads that might

have indicated that Snodderly was not Bill the

Bartender (for example, they apparently did not

compare Bill the Bartender’s description of his

residence and vehicle with Snodderly’s residence

and vehicle). Together with two Indiana state

prosecutors,/2 Officer Haehl prepared an

affidavit for an arrest warrant against

Snodderly, which included "false" representations

as to the existence of probable cause. Snodderly

was arrested by R.U.F.F. Officer Keith on April

15, 1994/3 in the presence of his wife, son, and

many neighbors, and was detained for some

unspecified time before posting bond and being

released on the same day. Snodderly was charged

with bulk sale of marijuana. The charge was

dismissed by an Indiana state court on February

5, 1997.

On February 13, 1998, Snodderly filed a

complaint in the United States District Court for

the Southern District of Indiana against the

R.U.F.F. Drug Enforcement Task Force, several

municipalities in Indiana that organized the Task

Force, various R.U.F.F. officers and state

prosecutors who participated in his arrest and

prosecution, and various John and Jane Does. The

complaint, as subsequently amended, asserted a

claim under sec. 1983 for damages resulting from

Snodderly’s arrest and prosecution, which

occurred in violation of the Fourth, Eighth, and

Fourteenth Amendments to the United States

Constitution. Specifically, Snodderly claimed

that the "[d]efendants deprived [him] of his

rights to be secure in his person and property,

freedom from unreasonable arrest, search and

seizure, freedom from false arrest, unlawful

arrest, freedom from arrest without probable

cause, freedom from unreasonable bail bond,

freedom from malicious prosecution, and due

process of law." The gravamen of Snodderly’s sec.

1983 claim is that the defendants caused him to

be arrested without probable cause, and continued

to prosecute him while knowing that he was not

guilty of the crime charged. Snodderly also

asserted a smorgasbord of pendent state law

claims against various individual defendants,

including a claim for false arrest against

Officer Keith,/4 a claim for unlawful arrest

against defendants Keith, Haehl, and other

officers, and a claim for malicious prosecution

against Haehl and various prosecutor-defendants.

In support of the latter claim, Snodderly claimed

that on or about April 6, 1994 (nine days before

Snodderly’s arrest), Haehl and two prosecutors

filed an affidavit with the clerk of Union

Circuit Court in Indiana charging Snodderly with

the Class D felony of dealing in marijuana, even

though they had no probable cause to do so.

Snodderly further stated that the trial court

granted him a motion to suppress photo-lineup

evidence when "it was found that the photographic

line-up had been destroyed approximately two

years earlier."

The district court dismissed all of Snodderly’s

claims. Noting that Indiana’s two-year statute of

limitations for personal injuries applies to sec.

1983 claims, and that Snodderly had filed his

original complaint on February 13, 1998, the

court ruled that any sec. 1983 claims that

accrued more than two years prior to that date

were time-barred. Applying this rule, the court

held that all of Snodderly’s sec. 1983 claims

against the police officers were time-barred,

because they were based on actions alleged to

have taken place more than two years prior to the

filing of Snodderly’s complaint. The court then

dismissed the only remaining federal claim--

namely, the claim that the prosecutor-defendants

pressed forward with the prosecution of Snodderly

despite their knowledge that they lacked evidence

to establish his guilt on the charged offense--on

the ground that prosecutors are absolutely immune

from such charges. Having dismissed all of

Snodderly’s federal claims, the court declined to

exercise supplemental jurisdiction over the state

law claims, and dismissed those claims for lack

of jurisdiction. Snodderly subsequently filed

this appeal, challenging only the district

court’s dismissal of his sec. 1983 claims against

the police officers./5

DISCUSSION

We review the district court’s dismissal of a

plaintiff’s complaint de novo, and we will only

affirm a dismissal "if it is clear that [the

plaintiff] can prove no set of facts consistent

with his complaint which would entitle him to

relief." Sneed v. Rybicki, 146 F.3d 478, 480 (7th

Cir. 1998) (citation omitted). We must accept all

well-pleaded facts in the complaint as true, and

draw all reasonable inferences in favor of the

nonmoving party. See id. However, "we are not

obliged to accept as true conclusory statements

of law or unsupported conclusions of fact." Id.

Snodderly argues that the district court erred

in dismissing his sec. 1983 false arrest claim as

time-barred. While he agrees with the defendants

that Indiana’s two-year statute of limitations

for personal injury actions applies to claims

brought under sec. 1983, he takes issue with the

district court’s conclusion as to when the

limitations period began to run on his claim.

Specifically, Snodderly maintains that under Heck

v. Humphrey, 512 U.S. 477 (1994), as interpreted

by Edwards v. Balisok, 520 U.S. 641 (1997), his

cause of action for false arrest did not accrue

until the legal proceedings brought against him

had terminated in his favor, and that therefore

the applicable two-year limitations period did

not begin to run until the drug-related charges

for which he was arrested were dropped on

February 5, 1997. Since he filed his false arrest

claim within two years of that date, Snodderly

contends that the claim was timely and should not

have been dismissed./6 While we reject

Snodderly’s interpretation of Edwards and his

argument regarding the application of Heck to

claims for false arrest in general, we agree with

his contention that his claims against the

R.U.F.F. officers did not accrue until the

charges against him were dismissed, and were

therefore timely brought.

Heck involved a sec. 1983 damages claim

asserted by a prison inmate against a police

investigator and two prosecutors who had

participated in the prosecution against him. (The

inmate had been convicted and sentenced on a

charge of voluntary manslaughter.) The inmate’s

claim stated that the prosecutors and the

investigators, while acting under color of state

law, had engaged in an unlawful and unreasonable

investigation which led to his arrest, that they

had knowingly destroyed exculpatory evidence, and

that they had caused an illegal voice

identification procedure to be used at his trial.

The inmate sought punitive and compensatory

damages, but did not seek release from custody.

The Supreme Court framed the question before it

as "whether money damages premised on an unlawful

conviction could be pursued under sec. 1983." In

answering that question in the negative, the

Court held 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 sec. 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 a determination, or

called into question by a federal court’s

issuance of a writ of habeus corpus, 28 U.S.C.

sec. 2254." Heck, 512 U.S. at 486-87. Thus, under

Heck, a sec. 1983 claim for damages is not

cognizable (i.e. does not accrue) if a judgment

in favor of the plaintiff on that claim "would

necessarily imply the invalidity of [the

plaintiff’s] conviction or sentence." Id. at 487.

However, if a district court determines that

judgment for the plaintiff on the sec. 1983

damages action would not "demonstrate the

invalidity of any outstanding criminal judgment

against the plaintiff," the action is cognizable

and should be allowed to proceed, in the absence

of some other bar to the suit. See id.

In footnote seven to its opinion, the Court

provided an example of a sec. 1983 claim which

would not necessarily demonstrate the invalidity

of any outstanding criminal judgment against the

plaintiff, and which could therefore be brought

without a showing that any outstanding conviction

or sentence had been invalidated. The Court

stated:

[A] suit for damages attributable to an allegedly

unreasonable search may lie even if the

challenged search produced evidence that was

introduced in a state criminal trial resulting in

the sec. 1983 plaintiff’s still-outstanding

conviction. Because of doctrines like independent

source and inevitable discovery, see Murray v.

United States, 487 U.S. 533, 539 (1988), and

especially harmless error, see Arizona v.

Fulminante, 499 U.S. 279, 307-08 (1991), such a

sec. 1983 action, even if successful, would not

necessarily imply that the plaintiff’s conviction

was unlawful. In order to recover compensatory

damages, however, the sec. 1983 plaintiff must

prove not only that the search was unlawful, but

that it caused him actual, compensable injury,

see Memphis Community School Dist. v. Stachura,

477 U.S. 299, 308 (1986), which, we hold today,

does not encompass the "injury" of being

convicted and imprisoned (until his conviction

has been overturned).

Heck, 512 U.S. at 487 n.7.

In applying Heck in general, and footnote seven

in particular, we have ruled that any sec. 1983

claim for damages resulting from a false arrest

is not barred by Heck and accrues immediately

after the arrest, because such alleged violations

of the Fourth Amendment would not necessarily

impugn the validity of a conviction. See, e.g.,

Copus v. City of Edgerton, 151 F.3d 646, 648-49

(7th Cir. 1998); Gonzalez v. Entress, 133 F.3d

551, 553 (7th Cir. 1998); Booker v. Ward, 94 F.3d

1052, 1056 (7th Cir. 1996); Simpson v. Rowan, 73

F.3d 134, 136 (7th Cir. 1995). In explaining our

holdings, we have reasoned that "wrongful

detentions [are] actionable under state law and

the fourth amendment no matter what happens to

the criminal prosecution" (i.e., that the injury

of being detained illegally is compensable

regardless of whether the plaintiff is later

convicted or even prosecuted, see, e.g.,

Gonzalez, 133 F.3d at 553), and that "one can

have a successful wrongful arrest claim and still

have a perfectly valid conviction." Booker, 94

F.3d at 1056 (7th Cir. 1996) (citations omitted).

We have applied this principle categorically to

all sec. 1983 claims for false arrest, ruling

that "Fourth Amendment claims for unlawful

searches or arrests do not necessarily imply a

conviction is invalid, so in all cases these

claims can go forward." Copus, 151 F.3d at 648.

However, while Snodderly acknowledges that we

have taken a categorical approach in our

application of Heck to false arrest cases and

have consistently held that a cause of action for

false arrest accrues immediately upon the arrest

notwithstanding Heck, he contends that Edwards v.

Balisok, 520 U.S. 641 (1997) requires us to

rethink our position. In Edwards, an inmate who

was found guilty of prison infractions at a

disciplinary hearing and subsequently deprived of

good-time credits sued under sec. 1983, claiming

that the procedures used during the disciplinary

hearing violated his Fourteenth Amendment due

process rights. Specifically, the inmate alleged,

inter alia, that the hearing officer "concealed

exculpatory witness statements and refused to ask

specified questions of requested witnesses, which

prevented [the inmate] from introducing extant

exculpatory material and ’intentionally denied’

him the right to present evidence in his

defense." Id. at 644 (record citations omitted).

He further claimed that the hearing officer was

biased against him, and that his deceit and bias

caused the exclusion of the exculpatory evidence.

See id. at 647. Presumably in an effort to avoid

the application of Heck to his claims, the inmate

sought damages only for the prison officials’

having denied him the good-time credits without

due process, not for their depriving him of the

good-time credits per se. See id. at 645. (In

other words, his claim contended that the

procedures used were improper, but not

necessarily that the resulting decision to

deprive him of the credits was wrong as a

substantive matter.) The district court found the

claim barred by Heck, and the Court of Appeals

reversed, holding that a claim challenging only

the procedures employed in a disciplinary

hearing--and not the result--is always cognizable

under sec. 1983. See id. at 645. The Supreme

Court reversed. Reasoning that courts routinely

reinstate good-time credits when an inmate can

show that he was denied the opportunity to put on

any witness testimony in his defense, and that

"[a] criminal defendant tried by a partial judge

is entitled to have his conviction set aside, no

matter how strong the evidence against him," the

Court concluded that the procedural defects

claimed by the inmate "would, if established,

necessarily imply the invalidity of the

deprivation of his good-time credits." See id. at

646-47. Therefore, applying Heck, the Court held

that the inmate’s claims were not cognizable

under sec. 1983.

Snodderly argues that Edwards undermines the

categorical approach that we have previously

taken in determining the applicability of the

Heck rule to false arrest cases. Specifically, he

contends that after Edwards we must determine in

each instance whether, under the particular facts

of a given case, a civil suit challenging the

validity of an arrest would impugn a criminal

conviction. If it would, Snodderly asserts that

we must find that the false arrest claim does not

accrue until the proceedings against the

plaintiff have terminated in the plaintiff’s

favor./7 In this case, Snodderly maintains that

his false arrest claim (if brought before the

drug charges against him were dismissed) would

have necessarily impugned any potential/8

conviction on the charges, because his challenge

to his arrest is premised on the claims that he

is not, in fact, "Bill the bartender" and that

the arresting officers had information in their

possession pointing towards his innocence before

they arrested him. According to Snodderly,

success on this particular claim--unlike success

on a claim such as excessive force which

challenges only the manner of arrest--would

necessarily challenge any potential conviction on

the drug charges, because if Snodderly is not

"Bill the bartender," then he by definition could

not be guilty of the crime charged.

We find Snodderly’s arguments unavailing for

several reasons. First, Edwards is readily

distinguishable and is of no help to Snodderly.

In Edwards, the plaintiff challenged the

procedures used to determine his guilt of

disciplinary infractions, and claimed as an

element of damages the harm caused him by his

being incarcerated pursuant to those faulty

procedures. Therefore, the plaintiff’s claims, if

successful, would necessarily have undermined the

validity of the legal decision to deny him the

good-time credits. This is so even though the

plaintiff did not expressly challenge the result

reached by the hearing officers (instead

attacking only the procedures used during the

hearing) because a claim that proves procedural

defects of the kind that would necessarily

mandate reversal of the proceedings (e.g., bias

or deceit of the decision-maker) necessarily

implies that the results of those proceedings

were invalid. This would disturb the finality of

an outstanding legal judgment, and this is

exactly what Heck seeks to prevent. Furthermore,

the Edwards plaintiff sought damages from his

"sentence" (i.e., from the deprivation of good-

time credits pursuant to inadequate procedures),

and Heck forbids claims for damages from

convictions or sentences while the judgment

imposing them stands. In contrast, a claim for

false arrest, insofar as it seeks damages for the

arrest only, would not necessarily imply the

invalidity of any future conviction or sentence.

A plaintiff could succeed on a false arrest claim

by demonstrating that he was arrested without

probable cause (for example, by showing that the

arresting officers ignored exculpatory

information and arrested him with little or no

basis for suspecting that he committed the

crime); however, this would not demonstrate the

invalidity of a future conviction for the same

offense. A person can be validly convicted

regardless of the quantum of evidence possessed

by the police at the time of arrest. Put another

way, even if the evidence available to the police

would not legally justify an arrest, other

evidence might surface later which would support

a valid conviction. As we have said, damages for

false arrest are free-standing and completely

independent from any damages caused by a

subsequent prosecution or conviction: "One can

have a successful wrongful arrest claim and still

have a perfectly valid conviction." Booker, 94

F.3d at 1056. Edwards does not compel a different

conclusion. Therefore, if Snodderly were claiming

damages for his false arrest only (as distinct

from the harm of having been prosecuted on

baseless charges), his claims would accrue

immediately upon his arrest.

However, while it was not acknowledged in the

briefs of either party, a more difficult issue

remains concerning the applicability of Heck to

Snodderly’s false arrest claim. Unlike the false

arrest claims that we have had occasion to

consider in the cases cited above, Snodderly’s

arrest was effected pursuant to a warrant. The

issuance of an arrest warrant is an act of legal

process that signals the beginning of a

prosecution. Therefore, Snodderly’s sec. 1983

wrongful arrest claim seeks damages for

confinement imposed pursuant to legal process,

thereby making it akin to a malicious prosecution

claim and triggering the application of Heck./9

See Antonelli v. Foster, 104 F.3d 899, 900-01

(7th Cir. 1997). In Antonelli, we held that an

inmate’s claim for damages for invalid

confinement pursuant to a federal parole violator

warrant would not accrue (per Heck) until the

confinement was "held to be unlawful in the

proper forum." Id. We reasoned that "[a] suit for

damages for confinement pursuant to a warrant

would . . . be a suit for malicious prosecution,"

(citing W. Page Keeton et al., Prosser and Keeton

on the Law of Torts sec. 119, p. 871 (5th ed.

1984)), which can succeed "only if the

prosecution fails," and that such a claim, like

the claim addressed in Heck, would not be

cognizable until the confinement had been ruled

invalid. Id. at 900. We held this rule applicable

to any claim complaining of preconviction

confinement that is imposed pursuant to legal

process (such as a warrant) since, in such cases,

"the unlawfulness of the plaintiff’s being

confined pursuant to legal process [is] an

implicit or explicit ingredient of his case." Id.

at 901. Other circuits applying Heck to claims of

unlawful arrest made pursuant to warrants--some

of which are virtually identical to Snodderly’s

claim--have similarly held that such claims do

not accrue until the proceedings have terminated

in the plaintiff’s favor (i.e., until the

prosecution has ended in acquittal or dismissal

of the charges). See, e.g., Whiting v. Traylor,

85 F.3d 581, 585-86 (11th Cir. 1996); Brooks v.

City of Winston-Salem, 85 F.3d 178, 183 (4th Cir.

1996); Calero-Colon v. Betancourt-Lebron, 68 F.3d

1, 4 (1st Cir. 1995). These courts have reasoned

that claims for unlawful arrests made pursuant to

a warrant would have been brought as malicious

prosecution claims under the common law, and that

Heck imposes a "favorable termination"

requirement on sec. 1983 claims that resemble

malicious prosecution. See, e.g., Calero-Colon,

68 F.3d at 3-4.

Therefore, we hold that the district court

erred in holding Snodderly’s claims against the

R.U.F.F. officers to be time-barred. The court

made the blanket statement that any claims based

on actions occurring more than two years prior to

the filing of the original complaint were

untimely, presumably assuming that this included

not only Snodderly’s false arrest claims, but

also any claims for malicious prosecution that

Snodderly may have stated against the police

officers. However, the court did not consider the

potential applicability of Heck, which holds that

claims resembling malicious prosecution do not

accrue until the prosecution has terminated in

the plaintiff’s favor, and Antonelli, which holds

that claims for unlawful arrests made on warrants

are really claims for malicious prosecution.

Thus, regardless of when the police performed the

acts at issue, to the extent that Snodderly’s

claims against the officers state claims for

malicious prosecution (as opposed to false

arrest) they could not have been brought while

the charges against Snodderly remained pending.

The charges against Snodderly were dismissed on

February 5, 1997. Since his complaint was filed

within two years of that date, the malicious

prosecution charges stated in the complaint were

timely.

However, notwithstanding the district court’s

error, we may affirm its dismissal of the

complaint on any ground that finds support in the

record. See Cushing v. City of Chicago, 3 F.3d

1156, 1167 (7th Cir. 1993). Even though a well-

pleaded sec. 1983 claim for malicious prosecution

against the police officers would not have been

time-barred in this case, we hold that Snodderly

has failed to state a claim for malicious

prosecution under sec. 1983, even under the

liberal pleading requirements of Fed. R. Civ. P.

12(b)(6).

In his amended complaint, Snodderly made several

claims against the police officers. First, as a

general claim, Snodderly asserted that all of the

defendants (police officers and prosecutors)

"caused the prosecution [of Snodderly] knowing

that he was not the proper person to be accused."

Second, in support of his sec. 1983 claim for

"violation of civil rights" (which included a

claim of malicious prosecution against all

defendants), Snodderly realleged his claims that

Officer Haehl, together with two prosecutors,

prepared a falsely represented statement of

probable cause in applying for an arrest warrant,

and that the defendants pursued the investigation

and charging of Snodderly even though they had

earlier become aware of evidence that would have

provided the true identity of "Bill the

bartender" (including information about his

vehicle and place of residence). He also stated

as part of his sec. 1983 claim that Officer Keith

had obtained a photo of Snodderly before the pre-

arranged drug buy with "Bill the Bartender."

Third, in support of his state law malicious

prosecution claim against the police officers,

Snodderly asserted that Officers Haehl and Keith,

together with two prosecutors, "initiated

criminal proceedings" against him without

probable cause by filing an affidavit with the

Clerk of the Circuit Court in Liberty, Indiana,

charging him with the class D felony of dealing

in marijuana, and that the trial court granted

Snodderly’s motion to suppress photographic line-

up evidence when it found that the evidence had

been destroyed approximately two years earlier.

However, in order to state a claim for

malicious prosecution against the police officers

under sec. 1983, Snodderly must do more than

merely claim that they arrested and detained him

without probable cause. See Sneed, 146 F.3d at

481 (7th Cir. 1998) (citation omitted); rather,

he must allege that the officers committed some

improper act after they arrested him without

probable cause, for example, that they pressured

or influenced the prosecutors to indict, made

knowing misstatements to the prosecutor,

testified untruthfully, or covered up exculpatory

evidence. See Reed v. City of Chicago, 77 F.3d

1049, 1053-54 (7th Cir. 1996). Snodderly made no

such allegations as part of his sec. 1983 claims

against any of the police officers in his amended

complaint. While he did claim that Officers Haehl

and Keith, together with two prosecutors, filed

an affidavit charging him with dealing in

marijuana, these claims were not part of his sec.

1983 claims, but were rather part of his state

law malicious prosecution claims, the dismissal

of which he is not challenging. Cf. Washington,

127 F.3d at 559. Perhaps more significantly,

Snodderly did not claim that either officer

exerted any pressure or influence on the

prosecutors either to apply for the arrest

warrant/10 or to indict him, that they made

knowing misstatements to the prosecutors, or that

they testified falsely at any subsequent

adversarial proceeding. As we have noted, "a

malicious prosecution action against a police

officer is ’anomalous,’" see Reed, 77 F.3d at

1053 (quoting Albright v. Oliver, 510 U.S. 266,

279 n.5 (Ginsburg, J., concurring)), because the

State’s Attorney, not the police, prosecute a

criminal action. Reed, 77 F.3d at 1053. Absent a

claim that Haehl or Keith played more of an

essential or influential role in seeking or

procuring the arrest warrant or indictment,

Snodderly’s bare-bones assertions against them

are insufficient to state a claim for malicious

prosecution.

One final point bears mentioning. In his

appellate brief, Snodderly asserted certain

factual claims that he did not plead in his

amended complaint. Specifically, Snodderly

claimed that: (1) while Zinman described Bill the

bartender as in his twenties, about 5’10", thin

and with a mustache, Snodderly was in his 40s,

had a beard, was 5’7" and portly at 185 pounds;

(2) the R.U.F.F. Task Force was aware that "Bill

the bartender" said that he lived in a trailer,

whereas Snodderly lived in, and was arrested in,

a house; (3) Haehl became the complaining witness

for the Task Force when, despite his own

misgivings and no personal knowledge, he signed

an affidavit that identified Snodderly as the

person who had made the drug sale to Zinman, on

the basis of which an arrest warrant was issued;

and (4) members of the Task Force destroyed the

evidence from a photo-lineup that would have

shown that plaintiff Snodderly was not "Bill the

bartender."

We do not think that it would be appropriate

for us to consider these allegations as part of

Snodderly’s claim, since they were advanced too

late. Arguments raised for the first time on

appeal are routinely deemed waived. See Perry v.

Sullivan, 207 F.3d 379, 383 (7th Cir. 2000).

While plaintiffs are allowed to argue new facts

and theories on appeal to avoid a motion to

dismiss under Fed. R. Civ. P. 12(b)(6) so long as

they are consistent with the complaint, see

Dawson v. General Motors Corp., 977 F.2d 369, 372

(7th Cir. 1992), Snodderly’s complaint was

dismissed as time-barred, and not for failure to

state a claim. Therefore, he does not benefit

from the liberal pleading rules allowed under

Rule 12. See Perry, 207 F.3d at 383. Moreover,

even if we were to consider Snodderly’s new

claims, it would not change our holding. If the

officers applied for an arrest warrant despite

having knowledge that pointed towards Snodderly’s

innocence (such as information about "Bill the

bartender" that appeared to distinguish him from

Snodderly), this would make them responsible for

initiating his arrest, but not for causing his

prosecution unless they performed some post-

arrest action which influenced the prosecutor’s

decision to indict. See Reed, 77 F.3d at 1053

("It is conceivable that a wrongful arrest could

be the first step towards a malicious

prosecution. However, the chain of causation is

broken by the indictment, absent an allegation of

pressure or influence exerted by the police

officers, or knowing misstatements made by the

officers to the prosecutor.") (citation omitted).

As we have noted, Snodderly has alleged no such

actions on the part of the officers. Furthermore,

while an assertion that police officers destroyed

exculpatory photographic line-up evidence will

frequently state a claim against malicious

prosecution against them, see generally Reed, 77

F.3d at 1054, it is not clear that Snodderly’s

claim would do so here. In deciding a motion to

dismiss for failure to state a claim, we are not

"obliged to accept as true unsupported

allegations of fact." See Sneed, 146 F.3d at 480.

Snodderly does not tell us what the line-up

evidence would have revealed, or how it would

have been exculpatory. Indeed, given that

Snodderly states that he had originally moved to

suppress the line-up evidence, his conclusory

assertion that it was "exculpatory" seems

puzzling, if not disingenuous.

CONCLUSION

For the foregoing reasons, the judgment of the

district court is AFFIRMED.

/1 The complaint merely states: "during the course

of making arrangements to make the purchase and

during the purchase, defendants became aware of

certain evidence that would provide the true

identity of BB, which included his place of

residence and the vehicle he drove." Later, in

his appellate brief, Snodderly asserts that "the

Task Force was aware that ’Bill the bartender’

said he lived in a trailer."

/2 Snodderly originally named several Indiana

prosecutors as defendants in both his sec. 1983

claim and in some of his pendent state law

claims. However, by agreement of the parties, the

prosecutor-defendants were dismissed from the

action before this appeal.

/3 In one of his state law claims, Snodderly asserts

that he was arrested on October 4, 1993. It is

unclear whether he is alleging two arrests in his

federal claim, or only the April 15, 1994 arrest.

The district court discussed only the latter

arrest, and Snodderly does not contest this on

appeal, so we will address only that arrest as

well.

/4 Snodderly claimed that Keith arrested him on a

"false warrant." He also claimed that Keith

lacked the authority to arrest him, but provides

no facts in support of this claim.

/5 As we have noted, the prosecutors named in the

amended complaint are no longer defendants.

Moreover, Snodderly does not challenge the

district court’s decision not to exercise

supplemental jurisdiction over his state law

claims, and agrees that if the district court’s

dismissal of his sec. 1983 claims against the

police officers was proper, then its dismissal of

the state law claims for lack of jurisdiction was

also proper.

/6 The appellees argue that Snodderly has waived any

argument regarding the applicability of Heck to

his claims. However, we reject this argument,

because Snodderly clearly raised the issue before

the district court in his Memorandum Contra to

Defendants’ Motions to Dismiss.

/7 Snodderly notes that other circuits have endorsed

this fact-sensitive method of determining the

applicability of the Heck rule to sec. 1983

claims stating Fourth Amendment violations. See,

e.g., Shamaeizadeh v. Cunigan, 182 F.3d 391, 398-

99 (6th Cir. 1999); Covington v. City of New

York, 171 F.3d 117, 123-24 (2d Cir. 1999).

/8 It should be noted that we have not limited the

application of Heck to situations involving

outstanding convictions. Rather, joining other

circuits, we have interpreted Heck as barring

damage claims which, if successful, would

necessarily imply the invalidity of a potential

conviction on a pending criminal charge. See

Washington v. Summerville, 127 F.3d 552, 556 (7th

Cir. 1997).

/9 Snodderly’s complaint purports to state claims

under sec. 1983 both for false arrest and for

malicious prosecution. On appeal, he challenged

the district court’s dismissal of both claims.

However, we find that on the facts presented

Snodderly cannot state a claim for false arrest.

Strictly speaking, a claim for false arrest is a

claim for the harm of being unlawfully imprisoned

through some extrajudicial act that does not

amount to legal process, for example, when a

police officer performs a warrantless arrest

without probable cause. See, e.g., Porterfield v.

Lott, 156 F.3d 563, 568 (4th Cir. 1998); Singer

v. Fulton County Sheriff, 63 F.3d 110, 117-18 (2d

Cir. 1995). A claimant pleading false arrest can

pursue damages only for the detention that

occurred "up until issuance of process or

arraignment, but not more." Heck, 512 U.S. at 484

(citing W. Keeton, D. Dobbs, R. Keeton & D. Owen,

Prosser and Keeton on Law of Torts 888 (5th ed.

1984)). In contrast, malicious prosecution

permits damages for "confinement imposed pursuant

to legal process." Heck, 512 U.S. at 484. The

issuance of a warrant is "legal process." Thus,

a claim seeking damages for unlawful confinement

imposed pursuant to a warrant sounds not in false

arrest, but in malicious prosecution. See Singer,

63 F.3d at 117 ("When an unlawful arrest has been

effected by a warrant an appropriate form of

action is malicious prosecution.") (quotation

omitted); Porterfield, 156 F.3d at 568 ("[A]

claim for false arrest may be considered only

when no arrest warrant has been obtained.").

/10 In his brief to this court, Snodderly asserts

that Haehl signed an affidavit identifying him as

"Bill the bartender," and that the arrest warrant

was issued on the basis of this affidavit.

However, in his amended complaint, Snodderly

alleged that the arrest warrant was based upon a

"falsely represented statement of probable cause"

which was prepared by Haehl and two prosecutors.

The complaint did not allege that Haehl exerted

any influence upon the prosecutors’ decision to

apply for the warrant, or that Haehl misled the

prosecutors in any way (either by misrepresenting

relevant facts or by omitting them).