Johnnie Savory v. William Cannon, Sr.

In the

United States Court of Appeals

For the Seventh Circuit

No. 17-3543

JOHNNIE LEE SAVORY,

Plaintiff-Appellant,

v.

WILLIAM CANNON, SR.,

as special representative for

CHARLES CANNON, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:17-cv-00204 — Gary Feinerman, Judge.

ARGUED SEPTEMBER 24, 2019 — DECIDED JANUARY 7, 2020

Before WOOD, Chief Judge, and EASTERBROOK, KANNE,

ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN, SCUDDER and

ST. EVE, Circuit Judges.*

*

Judge Flaum took no part in the decision to consider this case en banc,

(continued...)

2 No. 17-3543

ROVNER, Circuit Judge. 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 proceed-

ings.

I.

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

*

(...continued)

nor in this court's subsequent en banc consideration and disposition.

No. 17-3543 3

from the complaint. Dobbey v. Illinois Dep’t of Corr., 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 exoner-

ated 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 repeat-

edly 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

4 No. 17-3543

Savory of the crime of murder,1 and declared that Savory was

“acquitted and discharged of and from all further imprison-

ment 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 confes-

sion 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

1

The governor simultaneously pardoned Savory of the crime of possessing

contraband in a penal institution, a crime for which he was convicted in

1994.

2

Savory acknowledged that, at the time of filing his complaint, our circuit

law held that a “so-called federal malicious prosecution claim” was not

actionable under section 1983. R. 1, at 20 n.1. He nevertheless pled Count III

under the Fourth and Fourteenth Amendments in order to preserve it

pending the outcome of the Supreme Court’s consideration of Manuel v.

City of Joliet, Ill., 590 F. App’x 641 (7th Cir. 2017). The Court subsequently

held that “the Fourth Amendment governs a claim for unlawful pretrial

detention even beyond the start of legal process.” See Manuel v. City of Joliet,

Ill., 137 S. Ct. 911, 920 (2017). The Court remanded the case for consideration

(continued...)

No. 17-3543 5

(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

2

(...continued)

of the elements of the claim and the accrual date. Acknowledging that

courts are to look first to the common law of torts in defining the contours

and prerequisites of a section 1983 claim, the Court declined to resolve the

dispute between the parties as to the most analogous common-law tort. The

Court also noted that common-law principles guide rather than control the

definition of section 1983 claims, and that “[i]n applying, selecting among,

or adjusting common-law approaches, courts must closely attend to the

values and purposes of the constitutional right at issue.” 137 S. Ct. at 921.

Manuel argued that the claim resembled malicious prosecution and the

defendant likened the claim to false arrest. We subsequently held that the

nature of Manuel’s claim was detention without probable cause, even

though Manuel was being held by authority of a judicial decision that

probable cause existed. Manuel had asserted that the police hoodwinked

the judge by falsely asserting that pills he possessed contained unlawful

substances. Manuel was released the day after the prosecutor dropped the

charges. Because his detention was judicially authorized, we invoked the

holdings of Preiser v. Rodriguez, 411 U.S. 475 (1973), and Heck, and held that

the claim would accrue when the detention ended. Manuel v. City of Joliet,

Ill., 903 F.3d 667, 670 (7th Cir. 2018). In Savory’s case, the district court did

not separately analyze the accrual date for Count III. Now that the Supreme

Court has resolved Manuel, the accrual date for Count III should be

considered on remand.

6 No. 17-3543

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.

II.

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 limita-

tions for personal injury actions, courts considering § 1983

claims should borrow the general or residual statute for

personal injury actions”). In Illinois, the applicable limitations

No. 17-3543 7

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.

A.

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

8 No. 17-3543

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, discom-

fort 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 resolu-

tions arising out of the same transaction—an extant, enforce-

able 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 collater-

ally 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

No. 17-3543 9

to § 1983 damages actions that necessarily require

the plaintiff to prove the unlawfulness of his convic-

tion 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 imprison-

ment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence

invalid, a § 1983 plaintiff must prove that the convic-

tion or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a

state tribunal authorized to make such determina-

tion, 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 invali-

dated 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 success-

ful, will not demonstrate the invalidity of any out-

standing criminal judgment against the plaintiff, the

10 No. 17-3543

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 mali-

cious prosecution does not accrue until the criminal proceed-

ings 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

No. 17-3543 11

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 sen-

tence”); 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 orchestrat-

ing 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

12 No. 17-3543

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 consti-

tute an untenable collateral attack on a criminal

judgment.

139 S. Ct. at 2154–55. In McDonough’s case, favorable termina-

tion occurred at acquittal after the second trial.3

3

Savory argued in supplemental briefing that this holding in McDonough

calls into question the continued validity of Johnson v. Winstead, 900 F.3d 428

(7th Cir. 2018). McDonough addressed claim accrual in the context of a trial

resulting in mistrial, followed by retrial resulting in acquittal. Johnson

addressed claim accrual in the context of a trial resulting in a conviction,

followed by reversal on appeal, then retrial resulting in a second conviction,

followed again by reversal on appeal. McDonough concluded that the claim

accrued only at the resolution of the second trial. Johnson allowed for two

accrual dates, one at favorable termination of the first trial (in the form of

the appellate reversal) and the second at favorable termination of the

(continued...)

No. 17-3543 13

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, Ill., 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-

3

(...continued)

second trial (again in the form of reversal on appeal). Savory asks this court

to resolve the seeming inconsistency by finding that there is only one

accrual date in a single criminal case with a retrial. To the extent that it is

necessary to reconsider Johnson, we conclude that the more prudent course

is to allow the district court to consider in the first instance, after full

briefing from both the plaintiff and the defendants, whether and how

McDonough affects Johnson.

4

Savory also argued in supplemental briefing that we should overrule

Manuel v. City of Joliet, Ill., 903 F.3d 667 (7th Cir. 2018), to the extent that

opinion rejected analogies to common-law torts in section 1983 actions.

Savory contends that McDonough dictates–contrary to our 2018 Manuel

opinion–that his claim for unlawful detention after legal process accrued at

the same time as all of his other claims, specifically at the time of his

pardon. We again conclude that, to the extent that it is necessary to consider

this argument, the prudent course of action is for Savory to raise these

issues first in the district court, where, with the benefit of full briefing, the

court may consider in the first instance whether and how McDonough affects

our 2018 decision in Manuel.

14 No. 17-3543

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 crimi-

nal 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 multiply-

ing avenues for collateral attack on criminal judg-

ments 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 proceed-

ings while those criminal proceedings are ongoing.

No. 17-3543 15

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 limita-

tions begin to run.

McDonough, 139 S. Ct. at 2158.

B.

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

5

At oral argument for the en banc rehearing, counsel for the defendants

took the position that Savory’s pardon was not a favorable termination

(continued...)

16 No. 17-3543

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 favor-

able termination of his conviction, which occurred when the

governor issued a pardon for the subject conviction.

5

(...continued)

because it was a general pardon rather than a pardon based on innocence.

As we will discuss below, Savory’s pardon does operate as a favorable

termination for the purposes of the Heck analysis.

No. 17-3543 17

C.

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 Posses-

sions 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

6

Under res judicata, also known as claim preclusion, “a final judgment on

the merits of an action precludes the parties or their privies from relitigating

issues that were or could have been raised in that action.” Allen, 449 U.S. at

94. Under collateral estoppel, also known as issue preclusion, “once a court

has decided an issue of fact or law necessary to its judgment, that decision

may preclude relitigation of the issue in a suit on a different cause of action

involving a party to the first case.” Id.

18 No. 17-3543

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.

D.

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-Heck cases contain dicta or rely on reason-

ing that is in conflict with Heck and McDonough, and we must

address and clarify those cases as well.

1.

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

No. 17-3543 19

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. Ulti-

mately, Justice Souter suggested a slightly different rule that he

submitted would avoid any collision between section 1983 and

the habeas statute:

A state prisoner may seek federal-court § 1983

damages for unconstitutional conviction or confine-

ment, but only if he has previously established the

unlawfulness of his conviction or confinement, as on

appeal or on habeas. This has the effect of requiring

a state prisoner challenging the lawfulness of his

confinement to follow habeas’s rules before seeking

§ 1983 damages for unlawful confinement in federal

court[.]

Heck, 512 U.S. at 498 (Souter, J., concurring).

For persons not in custody for the purposes of the habeas

statute, “people who were merely fined, for example, or who

have completed short terms of imprisonment, probation, or

parole, or who discover (through no fault of their own) a

constitutional violation after full expiration of their sentences,”

there would be no requirement to show “the prior invalidation

of their convictions or sentences in order to obtain § 1983

damages for unconstitutional conviction or imprisonment”

because:

the result would be to deny any federal forum for

claiming a deprivation of federal rights to those who

20 No. 17-3543

cannot first obtain a favorable state ruling. The

reason, of course, is that individuals not “in cus-

tody” cannot invoke federal habeas jurisdiction, the

only statutory mechanism besides § 1983 by which

individuals may sue state officials in federal court

for violating federal rights. That would be an unto-

ward result.

Heck, 512 U.S. at 500 (Souter, J., concurring).

In contrast, of course, the Heck majority’s rule requires that

a plaintiff always obtain a favorable resolution of the criminal

conviction before bringing a section 1983 claim that would

necessarily imply the invalidity of a conviction or sentence.

The majority opinion specifically rejected Justice Souter’s

alternate rule:

Justice SOUTER also adopts the common-law

principle that one cannot use the device of a civil

tort action to challenge the validity of an outstand-

ing criminal conviction, but thinks it necessary to

abandon that principle in those cases (of which no

real-life example comes to mind) involving former

state prisoners who, because they are no longer in

custody, cannot bring postconviction challenges. We

think the principle barring collateral attacks—a

longstanding and deeply rooted feature of both the

common law and our own jurisprudence—is not

rendered inapplicable by the fortuity that a con-

victed criminal is no longer incarcerated.

Heck, 512 U.S. at 490 n.10 (citations omitted). The Court thus

expressly rejected a rule tied to the end of custody. In that

No. 17-3543 21

same footnote, the Court also dismissed the notion that section

1983 must be interpreted in a manner that provides a remedy

for all conceivable invasions of federal rights. Id. See also Allen,

449 U.S. at 103–04 (inability to obtain federal habeas corpus

relief upon a Fourth Amendment claim does not render the

doctrine of collateral estoppel inapplicable to a section 1983

suit on that same claim). In other words, there is not always a

section 1983 remedy for every constitutional wrong. See San

Remo Hotel, L.P. v. City and Cty. of San Francisco, 545 U.S. 323,

342 (2005) (issues actually decided in valid state-court judg-

ments may well deprive plaintiffs of the right to have their

federal claims re-litigated in federal court). In Allen, for

example, the Court made clear that an inability to pursue relief

through the habeas statute would not relieve a section 1983

claimant of the preclusive effect of a state court judgment

where the claimant had a full and fair opportunity to litigate

the issue in state court. Allen, 449 U.S. at 102–05.

But in Spencer v. Kemna, 523 U.S. 1, 21 (1998), Justice Souter

again filed a concurrence expressing the view that he urged in

his Heck concurrence, namely “that a former prisoner, no

longer ‘in custody,’ may bring a § 1983 action establishing the

unconstitutionality of a conviction or confinement without

being bound to satisfy a favorable-termination requirement

that it would be impossible as a matter of law for him to

satisfy.”7 Justice Ginsburg, who had been in the majority in

7

In Savory’s case, of course, it was not impossible as a matter of law to

satisfy the favorable-termination rule even though he had fully served his

sentence and lacked access to habeas corpus. Savory sought and received

(continued...)

22 No. 17-3543

Heck, this time agreed with Justice Souter (who was also joined

by Justices O’Connor and Breyer), joining his concurrence and

filing her own: “Individuals without recourse to the habeas

statute because they are not ‘in custody’ (people merely fined

or whose sentences have been fully served, for example) fit

within § 1983's ‘broad reach.’” Spencer, 523 U.S. at 21

(Ginsburg, J., concurring). Justice Stevens dissented in Spencer,

but he approved Justice Souter’s basic premise: “Given the

Court’s holding that petitioner does not have a remedy under

the habeas statute, it is perfectly clear, as Justice SOUTER

explains, that he may bring an action under 42 U.S.C. § 1983.”

Spencer, 523 U.S. at 25 n.8 (Stevens, J., dissenting).

The defendants contended in the district court and main-

tain on appeal that this dicta in concurring and dissenting

opinions, cobbled together, now formed a new majority,

essentially overruling footnote 10 in Heck. But it is axiomatic

that dicta from a collection of concurrences and dissents may

not overrule majority opinions. See Agostini v. Felton, 521 U.S.

203, 217, 238 (1997) (the views of five concurring Justices that

a case should be reconsidered or overruled cannot be said to

have effected a change in the law when the propriety of that

case was not before the Court; instead, the case controls until

the Court reinterprets and overrules the binding precedent);

Cross v. United States, 892 F.3d 288, 303 (7th Cir. 2018) (“Unless

and until a majority of the Court overrules the majority

7

(...continued)

an executive pardon. Illinois also provides a statutory remedy allowing

petitioners to seek relief from final judgments in certain circumstances. See

735 ILCS 5/2-1401.

No. 17-3543 23

opinions in [two prior cases], they continue to bind us.”). The

Supreme Court may eventually adopt Justice Souter’s view,

but it has not yet done so and we are bound by Heck. Rodriguez

de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484

(1989) (“If a precedent of this Court has direct application in a

case, yet appears to rest on reasons rejected in some other line

of decisions, the Court of Appeals should follow the case

which directly controls, leaving to this Court the prerogative

of overruling its own decisions.”). See also Muhammad v. Close,

540 U.S. 749, 752 n.2 (2004) (noting that members of the Court

had expressed the view that “unavailability of habeas for other

reasons may also dispense with the Heck requirement” but

indicating that “[t]his case is no occasion to settle the issue.”).

The defendants also assert that footnote 10 of Heck (which

specifically rejected Justice Souter’s proposed rule) was dicta,

and therefore does not control the outcome here. The plaintiff

in Heck, they note, was incarcerated and allowing a section

1983 suit during incarceration would have permitted an end-

run around the habeas corpus statute. No such concern is

present, they argue, in the scenario addressed in footnote 10 of

Heck, specifically, persons who are no longer in custody and

cannot bring habeas challenges. But Heck was concerned with

more than the exclusivity of the habeas corpus remedy for

persons in custody, or the intersection between habeas corpus

and section 1983. The favorable termination rule in Heck also

rested on concerns arising generally from collateral attacks on

extant criminal convictions through civil law suits. Specifically,

requiring a section 1983 plaintiff to prove favorable termina-

tion of the criminal conviction avoids parallel litigation over

the issues of probable cause and guilt, and precludes the

24 No. 17-3543

possibility that a plaintiff might succeed in a civil tort action

after having been convicted in the underlying criminal prose-

cution, allowing the creation of conflicting judgments arising

out of the same transaction. Heck, 512 U.S. at 485–86. These

concerns were repeated recently in McDonough as rationales

supporting the application of Heck’s favorable termination rule

in a case that did not implicate concerns about habeas corpus.

Because the plaintiff had been acquitted rather than convicted,

there was little likelihood of a collision between habeas corpus

and section 1983. Yet the Court cited the continued relevance

of the favorable-termination rule as being “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.” McDonough, 139

S. Ct. at 2156–57. In further support of the favorable termina-

tion rule, the Court also cited related concerns for finality,

consistency, and the avoidance of unnecessary friction between

the state and federal court systems. 139 S. Ct. at 2157. Although

footnote 10 of Heck addressed a factual scenario that was not

before the Court, to dismiss all of footnote 10 as dicta is to

divorce a significant part of the Court’s rationale from its

holding. The Court was simply making clear how broadly it

intended its holding to apply.

2.

The defendants also asserted below and argued on appeal

that this court has abrogated the rule in Heck, citing five cases:

DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000); Simpson v. Nickel,

450 F.3d 303 (7th Cir. 2006); Burd v. Sessler, 702 F.3d 429 (7th

Cir. 2012); Whitfield v. Howard, 852 F.3d 656 (7th Cir. 2017); and

Sanchez v. City of Chicago, 880 F.3d 349 (7th Cir. 2018). Accord-

No. 17-3543 25

ing to the defendants, those cases “together sensibly hold an

individual who is no longer in custody with no access to

habeas corpus relief may bring a § 1983 action challenging the

constitutionality of a still standing conviction without first

satisfying the favorable termination rule of Heck.” Brief of

Defendants-Appellees (hereafter “Defendants’ Brief”), at 7–8.

As we just explained, however, this court may not on its own

initiative overturn decisions of the Supreme Court. Although

four of those five cases came to correct resolutions, some of our

language and reasoning has created confusion regarding the

applicability of Heck in cases where habeas relief is not avail-

able. Indeed, it was on these cases that the district court relied

in concluding that Savory had brought his claims too late. The

confusion began in DeWalt, an opinion that had been circulated

to the full court under Circuit Rule 40(e). DeWalt, 224 F.3d at

618 n.6 (noting that no judge in active service favored rehear-

ing en banc).

a.

In DeWalt, we considered whether a prisoner could bring

a section 1983 claim related to the loss of his prison job when

the underlying disciplinary sanction had not been overturned

or invalidated. Because DeWalt did not challenge the fact or

duration of his confinement, a habeas petition was not the

appropriate vehicle for his claims. 224 F.3d at 617. DeWalt

challenged only a condition of his confinement—namely, the

loss of his prison job—making a section 1983 claim the appro-

priate course of action. Id. We summarized our holding with

the rule “that the unavailability of federal habeas relief does

not preclude a prisoner from bringing a § 1983 action to

challenge a condition of his confinement that results from a

26 No. 17-3543

prison disciplinary action.” 224 F.3d at 618. We discussed the

minority views in Spencer and Heck in the context of answering

a then-open question, namely, “whether Heck's favorable-

termination requirement bars a prisoner’s challenge under

§ 1983 to an administrative sanction that does not affect the

length of confinement.” 224 F.3d at 616. We concluded that it

did not, a position later approved by the Supreme Court. See

Muhammad, 540 U.S. at 754 (noting that the Seventh Circuit in

DeWalt had taken the position that Heck did not apply to prison

disciplinary proceedings in the absence of any implication

going to the fact or duration of the underlying sentence, and

likewise concluding that because Muhammad’s claim did not

seek a judgment at odds with his conviction or with the state’s

calculation of time to be served, Heck’s favorable-termination

requirement was inapplicable). We reaffirm DeWalt’s basic

holding today: a section 1983 complaint that challenges a

disciplinary sanction related only to the conditions of confine-

ment and that does not implicate the validity of the underlying

conviction or the duration of the sentence (e.g. loss of good

time credits) is not subject to Heck’s favorable termination

requirement. See also Muhammad, 540 U.S. at 754–55.

But part of the reasoning and language of DeWalt went

further than that and implied that, in all cases where habeas

relief is unavailable, then section 1983 must provide an avenue

of relief. See DeWalt, 224 F.3d at 617 (“Because federal habeas

relief is not available to Mr. DeWalt, the language of § 1983 and

the Court's decision in Preiser dictate that he be able to proceed

No. 17-3543 27

on his § 1983 action.”).8 This language suggesting that a section

1983 remedy must be available when habeas relief is unavail-

able is in conflict with footnote 10 of Heck and with our holding

today. Moreover, it was unnecessary to the holding in DeWalt,

and we now disavow that language.

In DeWalt, we also overruled our prior decisions in Ander-

son v. County of Montgomery, 111 F.3d 494 (7th Cir. 1997), and

Stone-Bey v. Barnes, 120 F.3d 718 (7th Cir. 1997), to the extent

that they applied the rule in Heck to situations in which habeas

relief was not available:

We are aware that our decisions in Anderson v.

County of Montgomery, 111 F.3d 494 (7th Cir.1997),

and Stone–Bey v. Barnes, 120 F.3d 718 (7th Cir. 1997),

precluded plaintiffs from pursuing § 1983 actions

when federal habeas was not available or when the

prisoner had not first availed himself of that option.

However, we note that both of these cases preceded

Spencer. Indeed, our more recent cases have ques-

tioned the viability of Anderson and Stone–Bey in

light of the Justices’ reluctance to apply the Heck rule

to situations in which habeas relief is not available.

See Hoard v. Reddy, 175 F.3d 531, 533 (7th Cir.)

8

Preiser held that a section 1983 action “is a proper remedy for a state

prisoner who is making a constitutional challenge to the conditions of his

prison life, but not to the fact or length of his custody.” Preiser v. Rodriguez,

411 U.S. 475, 499 (1973). Muhammad then later clarified that Heck does not

apply to prison disciplinary suits related only to conditions of confinement

when those suits do not raise any implication about the validity of the

conviction or the length of the sentence. 540 U.S. at 754–55.

28 No. 17-3543

(“[T]here is probably an exception to the rule of Heck

for cases in which no route other than a damages

action under section 1983 is open to the person to

challenge his conviction.”), cert. denied, 528 U.S. 970,

120 S.Ct. 411, 145 L.Ed.2d 320 (1999); Carr v. O'Leary,

167 F.3d 1124, 1127 (7th Cir.1999) (“With Carr

unable to get the disciplinary sanction reversed, five

Justices would not consider the sanction a bar to a

section 1983 suit even though that suit calls into

question the validity of the sanction.”); Sylvester v.

Hanks, 140 F.3d 713, 714 (7th Cir.1998) (questioning

whether Heck would preclude a § 1983 action to

review placement in segregation given that “few

states afford collateral review of prison disciplinary

hearings”). Our decision today necessitates that we

overrule Anderson and Stone–Bey to the extent they

take the contrary position.

DeWalt, 224 F.3d at 617–18.

It was appropriate to overrule Stone-Bey, but not for the

reason that we stated in DeWalt. Stone-Bey involved a pris-

oner’s section 1983 challenge to conditions of confinement

alone. In determining whether the Heck bar applied to his

claim, we considered whether it made “any difference in

applying Heck that the sentence imposed was one of disciplin-

ary segregation alone, as opposed to segregation coupled with

a loss of good-time credits,” and erroneously concluded that it

did not. 120 F.3d at 721. We then applied Heck’s favorable

termination rule and barred the prisoner’s claim even though

it did not implicate the validity of his conviction or sentence.

That holding conflicts with Muhammad. Stone-Bey was in error

No. 17-3543 29

but not because, as DeWalt stated, section 1983 must be

available when habeas is not. 224 F.3d at 617. Instead, the

holding in Stone-Bey was incorrect because Heck does not apply

to conditions-of-confinement claims that do not implicate the

validity of the underlying conviction or the length of custody.

There was no need to overrule Anderson. Anderson filed a

section 1983 action that challenged the validity of his extant

conviction, a claim that normally would be barred by Heck

unless and until the plaintiff obtained a favorable termination

of that underlying conviction. 111 F.3d at 498–99. Anderson

argued that, because he had been released from prison and no

longer had access to habeas relief, he must have access to

section 1983. The Anderson panel rejected that contention for

two reasons: first, Anderson was on “conditional release,” a

form of parole that likely meant he did retain access to habeas

as a means of challenging his conviction. Second, Heck had

rejected in footnote 10 the very argument which Anderson

raised. We noted that, even if footnote 10 was dicta, the

favorable termination rule of Heck also applied to persons no

longer in custody because it was an element of the analogous

common-law tort claim on which the section 1983 claim was

based. That analysis was perfectly consistent with Heck and

with our holding today.

b.

Simpson similarly addressed a claim by a prisoner related

to disciplinary segregation and loss of recreation privileges.

Because the claim related to conditions of confinement rather

than to the lawfulness of a conviction or duration of confine-

ment, we held that Heck’s favorable termination rule did not

30 No. 17-3543

apply, reversing the district court’s decision to the contrary.

450 F.3d at 306–07 (citing Muhammad, 540 U.S. at 754–55). That

holding of Simpson is correct. But we also asserted that Muham-

mad and DeWalt established that:

the doctrine of Heck and Edwards [v. Balisok] is

limited to prisoners who are “in custody” as a result

of the defendants’ challenged acts, and who there-

fore are able to seek collateral review. Take away the

possibility of collateral review and § 1983 becomes

available. Simpson can’t obtain collateral relief in

either state or federal court, so he isn’t (and never

was) affected by Heck or Edwards.

Simpson, 450 F.3d at 307 (emphasis in original). This and

similar passages in Simpson cannot survive our decision today.

Heck did not lose its vitality because Simpson had been

released from custody. Instead, Heck did not apply because

Simpson’s conditions-of-confinement claim did not implicate

the validity of his conviction or the length of his sentence.

Muhammad in fact indicated that the Court had not yet had

an occasion to revisit the minority views expressed in Spencer:

Members of the Court have expressed the view that

unavailability of habeas for other reasons may also

dispense with the Heck requirement. See Heck v.

Humphrey, 512 U.S. 477, 491, 114 S.Ct. 2364, 129

L.Ed.2d 383 (1994) (SOUTER, J., concurring in

judgment); Spencer v. Kemna, 523 U.S. 1, 21–22, 118

S.Ct. 978, 140 L.Ed.2d 43 (1998) (GINSBURG, J.,

concurring). This case is no occasion to settle the

issue.

No. 17-3543 31

Muhammad, 540 U.S. at 752 n.2. Simpson read that footnote as

conceding that Heck left this issue open. But footnote 2 of

Muhammad merely acknowledged the possibility that the Court

may someday revisit footnote 10 of Heck. Because it has not yet

done so, we are bound by the holding and reasoning of Heck.

c.

Burd involved a section 1983 suit for damages, alleging that

prison officials deprived the plaintiff of access to the prison

library, which in turn prevented him from preparing a timely

motion to withdraw his guilty plea. Burd, 702 F.3d at 431. We

concluded that the damages that Burd was seeking to recover

were predicated on a successful challenge to his conviction,

and so Heck applied. 702 F.3d at 434–35. And “[t]he rule in Heck

forbids the maintenance of such a damages action until the

plaintiff can demonstrate his injury by establishing the

invalidity of the underlying judgment.” 702 F.3d at 435 (empha-

sis in original). That reasoning and holding was sound.

But in rejecting Burd’s alternate theory, we endorsed the

reasoning from DeWalt and Simpson that we now disavow. We

stated “that Heck applies where a § 1983 plaintiff could have

sought collateral relief at an earlier time but declined the

opportunity and waited until collateral relief became unavail-

able before suing.” 702 F.3d at 436 (emphasis in original). We

added:

Permitting a plaintiff who ignored his opportunity

to seek collateral relief while incarcerated to skirt the

Heck bar simply by waiting to bring a § 1983 claim

until habeas is no longer available undermines Heck

and is a far cry from the concerns, as we understand

32 No. 17-3543

them, of the concurring Justices in Spencer for those

individuals who were precluded by a legal impedi-

ment from bringing an action for collateral relief.

702 F.3d at 436. Nothing in the record revealed any impedi-

ment to Burd seeking collateral relief while he was in custody.

We therefore:

join[ed] the Sixth and Ninth Circuits in holding that

Heck bars a § 1983 action where: (1) [a] favorable

judgment would necessarily call into question the

validity of the underlying conviction or sentence

and (2) the plaintiff could have pursued collateral

relief but failed to do so in a timely manner.

702 F.3d at 436. That statement should have ended after item

(1). The dicta of five Justices in Spencer did not overrule the

holding and reasoning of Heck, and a plaintiff’s failure to

pursue habeas relief when it was available is irrelevant to

whether the Heck bar applies. We repudiate that part of Burd

that gives any significance to whether the plaintiff lost access

to habeas relief through no fault of his own.

d.

The confusion that began in DeWalt, and that continued in

dicta in Simpson and Burd, eventually led to a result in Whitfield

v. Howard, 852 F.3d 656 (7th Cir. 2017), which was, in retro-

spect, incorrect. Although Whitfield was controlled by Edwards

v. Balisok, supra, rather than by Heck, we relied in part on dicta

from both Burd and Carr v. O’Leary, 167 F.3d 1124 (7th Cir.

1999), to conclude that a former prisoner could pursue a

section 1983 claim challenging prison disciplinary proceedings

No. 17-3543 33

that led to loss of good time credits without first obtaining a

favorable termination of those proceedings.

Whitfield sought damages under section 1983 for the

retaliatory revocation of good time credits. 852 F.3d at 659. He

pursued collateral review while he was in prison (albeit in a

manner we characterized as not “procedurally perfect”),

including a federal habeas claim, but was released from

custody before his claims were resolved. We found that Balisok

rather than Heck most directly governed Whitfield’s section

1983 claims. Whitfield, 852 F.3d at 663. Balisok addressed the

claim of a state prisoner alleging due process violations for

procedures used in a disciplinary hearing that resulted in a loss

of “good-time” credits. Balisok, 520 U.S. at 643. The Balisok

Court found that “[t]he principal procedural defect complained

of by respondent would, if established, necessarily imply the

invalidity of the deprivation of his good-time credits.” 520 U.S.

at 646. But Balisok had not demonstrated that the result of the

disciplinary hearing had been set aside, and so the Court found

his claim not cognizable under § 1983. 520 U.S. at 648.

Whitfield first nodded to the holding in Heck, noting that in

“section 1983 suits that did not directly seek immediate or

speedier release, but rather sought monetary damages that

would call into question the validity of a conviction or term of

confinement, … a prisoner has no claim under section 1983

until he receives a favorable decision on his underlying

conviction or sentence, such as through a reversal or grant of

habeas corpus relief.” Whitfield, 852 F.3d at 661. We also noted

that Balisok extended the Heck bar to section 1983 suits brought

by prisoners challenging the outcome of prison disciplinary

34 No. 17-3543

proceedings in which the plaintiffs sought damages rather than

earlier release. Id. We then attempted to distinguish Balisok:

Had [Balisok] prevailed, the result of the disciplin-

ary proceeding would have to have been set aside.

Whitfield, in contrast, is arguing that the [disciplin-

ary] hearings should never have taken place at all,

because they were acts of retaliation for his exercise

of rights protected by the First Amendment. He has

no quarrel with the procedures used in the prison

disciplinary system. He could just as well be saying

that a prison official maliciously calculated an

improper release date, or “lost” the order authoriz-

ing his release in retaliation for protected activity. In

short, the essence of Whitfield’s complaint is the link

between retaliation and his delayed release; the fact

that disciplinary proceedings were the mechanism

is not essential. Balisok also took care to be precise,

when it held that the petitioner’s claim for prospec-

tive injunctive relief could go forward under section

1983, since it did not necessarily imply anything

about the loss of good-time credits.

Whitfield, 852 F.3d at 663. Unlike Balisok, we asserted,

Whitfield was not seeking to set aside the result of a process

but rather was claiming that the process should not have

occurred at all. And unlike Burd, Whitfield had pursued

collateral relief to the degree possible, until he was released

from custody and the district court dismissed his habeas

petition as moot.

No. 17-3543 35

We found those factors distinguishing and allowed the

claims to proceed. But Whitfield’s circumstances were not truly

distinguishable from those of Balisok or Burd. A plaintiff’s

good-faith but unsuccessful pursuit of collateral relief does not

relieve him of Heck’s favorable termination requirement.

Because Whitfield had not yet obtained a favorable termination

of the disciplinary proceedings that led to a loss of good time

credit, he had no cognizable claim under section 1983. We must

therefore overrule our decision in Whitfield.

e.

That leaves Sanchez, the last case on which the defendants

relied. Sanchez brought section 1983 claims asserting wrongful

arrest and excessive force, claims that would not necessarily

imply the invalidity of his conviction, and so we noted cor-

rectly that Heck did not apply to those claims. 880 F.3d at 356.

See also Wallace, 549 U.S. at 389–91 (statute of limitations for a

claim for false arrest begins to run upon initiation of legal

process). But Sanchez also suggested that he was framed, a

claim that would imply the invalidity of his conviction. We

relied on Whitfield to find that “Heck does not bar a suit by a

plaintiff who is no longer in custody but who pursued a

collateral attack through appropriate channels while he was in

custody, even if such efforts were unavailing.” 880 F.3d at 356.

Because Sanchez sought post-conviction relief in state courts

before his release from custody, we concluded that Heck did

not apply. That reasoning does not survive our decision today.

But the final result in Sanchez is nevertheless correct, because

we went on to conclude that Sanchez’s claim that he was

framed was subject to issue preclusion, and so there was no

need to remand for a new trial. 880 F.3d at 358. See also Green

36 No. 17-3543

v. Junious, 937 F.3d 1009, 1014 (7th Cir. 2019) (noting that Heck

did not categorically bar the suit in Sanchez but the state

criminal judgment had preclusive effect under traditional

collateral-estoppel analysis).

E.

Our dissenting colleague urges the court to adopt an

accrual rule tied to the end of custody. A claim accrues when

a plaintiff has “a complete and present cause of action.”

McDonough, 139 S. Ct. at 2155; Wallace, 549 U.S. at 388; Bay Area

Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of

Cal., 522 U.S. 192, 201 (1997). When a section 1983 claim

resembles the common-law tort of malicious prosecution, the

Court treats favorable termination as an element of the claim.

McDonough, 139 S. Ct. at 2156-57; Heck, 512 U.S. at 484.

Without favorable termination, a plaintiff lacks “a complete

and present cause of action.” Yet the dissent’s rule would

require a plaintiff to file suit without this essential element of

the claim. See Heck, 512 U.S. at 489 (“deny[ing] the existence of

a cause of action” until favorable termination of the convic-

tion).

As a model for this rule, the dissent cites Poventud v. New

York, 715 F.3d 57 (2d Cir. 2013), a decision vacated by the en

banc Second Circuit.9 Poventud, in turn, relied on Jenkins v.

Haubert, 179 F.3d 19 (2d Cir. 1999), and Leather v. Eyck, 180 F.3d

420 (2d Cir. 1999). Jenkins, like DeWalt, correctly decided that

9

The en banc Second Circuit resolved the case on other grounds that have

no bearing on the circumstances that we address here. Poventud v. New York,

750 F.3d 121 (2d Cir. 2014).

No. 17-3543 37

the Heck bar does not apply in conditions-of-confinement cases

brought under section 1983. 179 F.3d at 27. Jenkins also in-

cluded dicta that suggested that a section 1983 remedy must be

available when habeas relief is not available. 179 F.3d at 27.

That language is virtually identical to the dicta in our own

cases that we disavow today. In Leather, the Second Circuit

relied on the dicta from Jenkins to conclude that a section 1983

plaintiff who was assessed a fine but was never in custody

could bring his claim even though his conviction was extant.

180 F.3d at 424. For the reasons we have discussed above, we

find none of these cases persuasive.

In requiring favorable termination before allowing a section

1983 claim to proceed, Heck sets a high standard. Undoubtedly,

as the dissent asserts, some valid claims will never make it past

the courthouse door. Heck explains, though, why a high bar

must be cleared before seeking damages in a civil action on

claims that imply the invalidity of a criminal conviction. The

Court sought to avoid parallel litigation on the issue of guilt,

preclude the possibility of conflicting resolutions arising out of

the same transaction, prevent collateral attacks on criminal

convictions through the vehicle of civil suits, and respect

concerns for comity, finality and consistency. Heck, 512 U.S. at

485–86. See also McDonough, 139 S. Ct. at 2156–57. We are not in

a position to alter the Heck standard or set aside these concerns.

F.

We have said several times that Savory’s claims did not

accrue until he obtained a favorable termination of his convic-

tion and that this occurred when the governor of Illinois

pardoned him. We base this conclusion on Heck itself, which

38 No. 17-3543

lists “expunge[ment] by executive order” as one of the ways in

which a plaintiff may demonstrate favorable termination. Heck,

512 U.S. at 487. At the en banc oral argument, the defendants

alerted the court for the first time that, if we were to hold that

Savory’s claim accrued on favorable termination, they in-

tended to argue on remand that the governor’s January 12,

2015, pardon is not a favorable termination. Under that theory,

the defendants contend, Savory brought his claims not too late

(as they claimed on appeal) but too early. The district court

rested its dismissal of the case solely on the defendants’

argument that Savory’s claim was too late because it accrued

on December 6, 2011, when his sentence was commuted, his

custody ended, and he lost access to the remedy of habeas

corpus. At no time in the district court did the defendants

argue in the alternative that Savory’s federal claims were too

early, or that the date of accrual was anything other than

December 6, 2011. This entire appeal has been framed as a

contest between two possible dates of accrual: the end of

custody versus favorable termination. The defendants never

suggested until the en banc oral argument that there was a third

possible date for accrual, one that has yet to occur. Savory’s

claims have already been more than forty years in the making

and we wish to avert further delays due to any misunderstand-

ing of this court’s holding today; and so we now clarify that the

governor’s January 12, 2015, pardon was a favorable termina-

tion for the purposes of the Heck analysis.

For many reasons, this holding should not be a surprise to

the defendants. On the first page of their appellate brief, they

stated that, “[O]n January 12, 2015, Savory was granted a

general pardon from then Illinois Governor Pat Quinn. That

No. 17-3543 39

pardon set aside Savory’s double murder conviction.” Defendants’

Brief, at 1 (emphasis added). Although they later asserted that

this general pardon was not based on innocence and failed to

restore all of Savory’s rights of citizenship (they interpret the

pardon to withhold the right to sell, receive, or possess a

firearm), they attached no significance to this assertion within

the Heck framework. Defendant’s Brief, at 5. Instead, they later

conceded that this court has already stated that a section 1983

plaintiff’s claims related to a conviction accrue at the time of a

pardon. See Defendants’ Brief, at 23 (“It is true that this Court,

in Newsome, said it was the plaintiff’s pardon that marked the

accrual of the § 1983 claims.”). See also Newsome v. McCabe, 256

F.3d 747, 749, 752 (7th Cir. 2001) (“a claim based on wrongful

conviction and imprisonment did not accrue until the pardon”

and “the due process claim’s accrual was postponed by Heck

until the pardon.”), abrogated on other grounds, Manuel v. City

of Joliet, Ill., 137 S. Ct. 911 (2017).

The defendants attempted to distinguish Newsome, but that

case is neither meaningfully distinguishable nor unique in

characterizing a pardon by a state’s executive as adequate for

Heck’s favorable termination requirement. In the context of

discussing favorable terminations under Heck, we have often

used “pardon” or “executive pardon” as synonyms for

“expunged by executive order,” the phrase that the Court

employed in Heck. Manuel v. City of Joliet, Ill., 903 F.3d 667, 670

(7th Cir. 2018) (Ҥ 1983 cannot be used to obtain damages for

custody based on a criminal conviction—not until the convic-

tion has been set aside by the judiciary or an executive par-

don”); Moore v. Burge, 771 F.3d 444, 446 (7th Cir. 2014) (“a claim

that implies the invalidity of a criminal conviction does not

40 No. 17-3543

accrue … until the conviction is set aside by the judiciary or the

defendant receives a pardon”); 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 invalid-

ity of a criminal conviction, unless that conviction has been set

aside by appeal, collateral review, or pardon”). That a pardon

is a favorable termination under Heck is well-settled.

Nevertheless, the defendants assert that Illinois employs

two kinds of pardons, a general pardon and a pardon based on

innocence. They argue that only a pardon based on innocence

is a favorable termination for the purposes of Heck. Because

Savory has obtained only a general pardon and not a pardon

based on innocence, the defendants indicated at oral argument

that they intended to argue on remand that he brought his

claims too soon. The contention that a pardon must be based

on innocence in order to serve as a favorable termination finds

no support in Heck, and we see no reason to impose that

additional limitation on Heck’s holding. If the Court had

wanted to specify that the pardon must be based on innocence,

it certainly could have done so, but it did not. Instead, the

Court offered a list of possible resolutions that would satisfy

the favorable termination requirement, and none require an

affirmative finding of innocence. A conviction need only be

“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. Any

of these outcomes can occur without a declaration of a defen-

dant’s innocence. McDonough added that acquittal is a favor-

able termination under Heck that starts the clock on claim

No. 17-3543 41

accrual, another resolution that does not necessarily imply

innocence. McDonough, 139 S. Ct. at 2161.

The Governor’s pardon of Savory meets the standard

articulated in Heck:

Now, Know Ye, that I, PAT QUINN, Governor of

the State of Illinois, by virtue of the authority vested

in me by the Constitution of the State, do by these

presents: PARDON JOHNNY [sic] L. SAVORY (SID:

23061880) of the said crime of which convicted, and

JOHNNY [sic] L. SAVORY (SID: 23061880) is hereby

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.

R. 71-3. See Ill. Const. Art. 5, § 12 (“The Governor may grant

reprieves, commutations and pardons, after conviction, for all

offenses on such terms as he thinks proper. The manner of

applying therefore may be regulated by law.”). This full

pardon is followed by language authorizing expungement of

the records of Savory’s conviction, which in Illinois must be

accomplished by application to a court that may, in its discre-

tion order the records sealed. 20 ILCS 2630/5.2(e). It would be

passing strange if the Governor authorized expungement of

the record of conviction without first meaning to expunge the

conviction itself. For the purposes of Heck, as the defendants

themselves conceded on the first page of their brief, Savory’s

42 No. 17-3543

conviction was set aside with this pardon. Under Heck, his

section 1983 claim accrued on that date.10

Finally, we note that the defendants’ failure to raise this

third possible accrual date in the district court and on appeal

appears to have been a deliberate choice. In the district court,

the defendants also moved to dismiss Savory’s state law

claims, and Savory has not challenged that dismissal on

appeal. One of Savory’s state law claims was for the Illinois

tort of malicious prosecution. R. 71, at 16. To proceed on that

tort claim, Illinois requires that the plaintiff prove that the

underlying criminal proceedings terminated in a manner

indicative of the innocence of the accused, a higher standard than

Heck’s favorable termination accrual rule. See Swick v. Liautaud,

662 N.E.2d 1238, 1242 (Ill. 1996) (“a malicious prosecution

action cannot be predicated on underlying criminal proceed-

ings which were terminated in a manner not indicative of the

innocence of the accused”). The defendants argued in the

district court that Savory’s general pardon was insufficient to

meet this Illinois standard because it was not indicative of his

innocence. R. 71, at 16–18.

In support of this contention, the defendants relied on a

federal district court case that held that both a state law

malicious prosecution claim and a section 1983 claim resem-

10

The defendants also suggested that the pardon did nothing more than

discharge Savory from any further imprisonment. This assertion would

render the pardon essentially meaningless in light of the commutation of

sentence granted to Savory in 2011 which discharged him from all further

custody. A pardon is broader in scope and effect than a commutation of a

sentence.

No. 17-3543 43

bling malicious prosecution accrued when the plaintiff

received an innocence pardon in 2003 rather than when he

received a general pardon in 1978. Walden v. City of Chicago, 391

F.Supp.2d 660, 671–72 (N.D.Ill. 2005). But unlike the defen-

dants in Walden, the defendants here did not raise that same

argument in the district court in relation to the section 1983

claims. The defendants were therefore aware of this argument

for a third possible accrual date and chose to raise it only in

relation to the state law claim in the district court. And the

defendants conceded on page one of their brief on appeal that

the pardon set aside Savory’s conviction. For all intents and

purposes, the claim is therefore waived and is not open to re-

litigation on remand. Milwaukee Ctr. for Indep., Inc. v. Milwaukee

Health Care, LLC, 929 F.3d 489, 493–94 (7th Cir. 2019) (failure to

bring an argument in the district court results in waiver on

appeal; and a blatant attempt to contradict what has already

been admitted in formal briefing will not be allowed). Because

of this waiver and because Savory’s pardon clearly meets the

Heck standard for favorable termination, we leave for another

day the consideration of whether some state executive action

labeled “pardon” does not meet Heck’s standard.

III.

Heck controls the outcome where a section 1983 claim

implies the invalidity of the conviction or the sentence,

regardless of the availability of habeas relief. Claims that relate

only to conditions of confinement and that do not implicate the

validity of the conviction or sentence are not subject to the Heck

bar. We disavow the language in any case that suggests that

release from custody and the unavailability of habeas relief

means that section 1983 must be available as a remedy. That

44 No. 17-3543

includes the cases on which the district court, in good faith,

reasonably relied. McDonough confirms that habeas exclusivity

is just one part of the rationale for Heck’s holding. Concerns

about comity, finality, conflicting judgments, and “the hoary

principle that civil tort actions are not appropriate vehicles for

challenging the validity of outstanding criminal judgments” all

underpin Heck’s favorable termination rule. Heck, 512 U.S. at

486. The Supreme Court may revisit the need for the favorable

termination rule in cases where habeas relief is unavailable, but

it has not yet done so.

Savory’s claims, which necessarily imply the invalidity of

his conviction, accrued when he was pardoned by the gover-

nor of Illinois. His section 1983 action, filed within two years of

the pardon, was therefore timely filed. We reverse the district

court’s judgment and remand for further proceedings.

REVERSED AND REMANDED.

No. 17-3543 45

EASTERBROOK, Circuit Judge, dissenting. The court is

unanimous in concluding that only two potential accrual

rules make sense: either a §1983 claim does not accrue until a

criminal judgment has been set aside, or release from prison

marks the claim’s accrual even if the judgment is unaltered.

All the exceptions, variations, and tergiversation found in

earlier decisions of our panels, and other circuits,1 must be

cast aside. One clear rule or the other is essential.

Unlike my colleagues, however, I think that we should

adopt the rule proposed by Justice Souter, concurring in

Heck v. Humphrey, 512 U.S. 477, 491–503 (1994) (joined by

three other Justices), and later espoused by Justice Ginsburg,

see Spencer v. Kemna, 523 U.S. 1, 21–22 (1998), under which

the end of custody marks the end of deferral. One court of

appeals has followed that path. See Poventud v. New York, 715

F.3d 57, 61 (2d Cir. 2013), resolved en banc on other grounds,

750 F.3d 121 (2014); Leather v. Eyck, 180 F.3d 420, 424 (2d Cir.

1999); Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999). We

should too.

1 In one circuit the claim accrues on release if the ex-prisoner “could not

have practicably sought habeas relief while in custody.” Griffin v. Balti-

more Police Department, 804 F.3d 692, 696 (4th Cir. 2015) (cleaned up). In

another the claim accrues on release if the prisoner “was precluded as a

matter of law from seeking habeas redress”. Powers v. Hamilton, 501 F.3d

592, 601 (6th Cir. 2007) (cleaned up). In a third the law is similar, but the

court lists the circumstances that it believes prevent a prisoner from ob-

taining collateral relief. Guerrero v. Gates, 442 F.3d 697, 704–05 (9th Cir.

2006). And in a fourth circuit the claim accrues on release if the prisoner

has not been able to obtain collateral relief “through no lack of diligence

on his part”. Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir. 2010).

None of these approaches enables either a plaintiff or a district judge to

know when a claim has accrued and the clock is ticking.

46 No. 17-3543

The opinion in Heck states that a §1983 claim for uncon-

stitutional conviction or imprisonment does not accrue until

“the conviction or sentence has been reversed on direct ap-

peal, 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”. 512 U.S. at 487. That is the source of my col-

leagues’ bright-line rule. It also has the support of Heck’s

footnote 10, 512 U.S. at 490 n.10:

JUSTICE SOUTER also adopts the common-law

principle that one cannot use the device of a

civil tort action to challenge the validity of an

outstanding criminal conviction, but thinks it

necessary to abandon that principle in those

cases (of which no real-life example comes to

mind) involving former state prisoners who,

because they are no longer in custody, cannot

bring postconviction challenges. Post, at 500.

We think the principle barring collateral

attacks—a longstanding and deeply rooted fea-

ture of both the common law and our own ju-

risprudence—is not rendered inapplicable by

the fortuity that a convicted criminal is no

longer incarcerated. JUSTICE SOUTER opines that

disallowing a damages suit for a former state

prisoner framed by Ku Klux Klan-dominated

state officials is “hard indeed to reconcile …

with the purpose of §1983.” Post, at 502. But if,

as JUSTICE SOUTER appears to suggest, the goal

of our interpretive enterprise under §1983 were

to provide a remedy for all conceivable inva-

sions of federal rights that freedmen may have

No. 17-3543 47

suffered at the hands of officials of the former

States of the Confederacy, the entire landscape

of our §1983 jurisprudence would look very

different. We would not, for example, have

adopted the rule that judicial officers have ab-

solute immunity from liability for damages

under §1983, Pierson v. Ray, 386 U.S. 547 (1967),

a rule that would prevent recovery by a former

slave who had been tried and convicted before

a corrupt state judge in league with the Ku

Klux Klan.

I do not think, however, that either aspect of the opinion in

Heck is conclusive.

Statements in Heck (other than note 10) about the need to

wait for a prisoner’s vindication discuss the claim at hand:

by a prisoner then in custody. Opinions are not statutes and

should not be read as if they were. See, e.g., Zenith Radio

Corp. v. United States, 437 U.S. 443, 462 (1978). Footnote 10 is

the only part of the Court’s opinion in Heck to address the

appropriate treatment of plaintiffs whose custody has end-

ed, and a clearer example of dicta is hard to imagine. The

footnote concerns a subject that had not been briefed by the

parties, that did not matter to the disposition of Heck’s

claim, and that the majority thought would not matter to an-

yone, ever. That belief has been embarrassed by the fact that

many former prisoners contend that their convictions were

wrongful but are no longer in a position to seek collateral

review.2 Heck did not present for decision any question

2 This circuit alone has seen dozens of such cases. The cases cited on the

first page (including footnote 1) of this opinion represent the tip of the

iceberg in other circuits. And four more circuits, which read Heck as my

48 No. 17-3543

about the appropriate treatment of this situation. And the

Justices themselves have told us that Heck did not decide the

question.

Members of the Court have expressed the view

that unavailability of habeas for other reasons

may also dispense with the Heck requirement.

See Heck v. Humphrey, 512 U.S. 477, 491 (1994)

(SOUTER, J., concurring in judgment); Spencer v.

Kemna, 523 U.S. 1, 21–22 (1998) (GINSBURG, J.,

concurring). This case is no occasion to settle

the issue.

Muhammad v. Close, 540 U.S. 749, 752 n.2 (2004). To say that

“[t]his case is no occasion to settle the issue” is to say that the

issue is open—in other words, that it was not settled by Heck,

which occasioned an exchange of competing views but did

not yield a holding. No later case has done so either. Certain-

ly McDonough v. Smith, 139 S. Ct. 2149 (2019), did not do so.

McDonough repeats Heck’s conclusion that an acquittal caus-

es the claim to accrue, without discussing the question

whether release from prison at the end of the sentence also

does so. Justice Ginsburg, who joined the opinion in

McDonough, did not suggest that she has abandoned her

view that a sentence’s end permits suit.

Although footnote 10 is dictum, we are bound by the

Court’s rationales for holding that a person still in prison

may not use §1983 to obtain damages on account of the con-

colleagues do, have addressed similar claims. See Figueroa v. Rivera, 147

F.3d 77 (1st Cir. 1998); Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005); Randell

v. Johnson, 227 F.3d 300 (5th Cir. 2000); Entzi v. Redmann, 485 F.3d 998 (8th

Cir. 2007).

No. 17-3543 49

viction and confinement. There are three: first, the rule from

Preiser v. Rodriguez, 411 U.S. 475 (1973), that §1983 cannot be

used to obtain relief from ongoing custody (the right remedy

is a collateral attack under 28 U.S.C. §§ 2241, 2254, or 2255);

second, the rule that people in state custody must exhaust

state remedies before obtaining federal review (see 28 U.S.C.

§2254(b)(1)); third, the rule that a criminal conviction is a

judgment that the loser normally may not contradict in an-

other court. The first two rationales drop out after a person

has been released from prison, and the third is not a federal

bar when the judgment was entered by a state court. The

effect of a state judgment depends on state law. 28 U.S.C.

§1738; Marrese v. American Academy of Orthopaedic Surgeons,

470 U.S. 373 (1985).

Neither §1983 nor any other federal statute specifies

when a claim accrues. That time has been established by the

Supreme Court as a matter of federal common law. See Wal-

lace v. Kato, 549 U.S. 384, 388 (2007). Wallace adjusted the ac-

crual rules to address claims arising under the Fourth

Amendment, a category of suits that had been the subject of

dictum in some of Heck’s other footnotes (512 U.S. at 486–87

nn. 6, 7) but did not represent a holding any more than note

10 did. Then Manuel v. Joliet, 137 S. Ct. 911 (2017), adjusted

Wallace to address situations in which custody without prob-

able cause continued after an initial judicial appearance.

Both Wallace and Manuel set out to produce accrual doctrines

that respect the need to allow remedies for serious wrongdo-

ing, while avoiding premature litigation. We can and should

do the same.

The Justices expressed concern in Manuel and its succes-

sor McDonough about a rule starting the time so early that

50 No. 17-3543

legitimate claims would be lost. We should be equally con-

cerned about a rule starting the time so late that claims never

accrue. The majority’s approach does just that.

Some sentences are too short to allow collateral relief. We

routinely see cases in which it has taken a decade to pursue a

direct appeal, collateral review in state court, and collateral

review in federal court. If confinement ends before collateral

review begins, the custody requirement prevents all further

review. If the sentence is fully served while state collateral

review is ongoing, federal collateral review cannot begin.

(Only state prisoners “in custody” can seek review under

§2254(a).) So a rule under which a §1983 claim does not ac-

crue as long as the criminal judgment stands means that

thousands of defendants sentenced to less than five or ten

years in prison can never present a §1983 claim, no matter

how egregious the constitutional violations that led to

wrongful conviction and custody.

Released prisoners can obtain relief under the majority’s

approach if their convictions are set aside by pardon (Sa-

vory’s situation) or certificate of innocence. Yet in most states

pardons are rare, and pardons for federal crimes are rarer

still. Getting a certificate of innocence is wickedly hard in

both state and federal systems, because the applicant must

show factual innocence, and even an acquittal does not es-

tablish that. See Pulungan v. United States, 722 F.3d 983 (7th

Cir. 2013). Proof of innocence—the need to prove a nega-

tive—is difficult to come by. Again Savory may be an excep-

tion; he eventually found conclusive DNA evidence. Few

wrongly convicted persons are so fortunate.

Delayed availability of evidence is another problem.

Proof that a given police officer systematically lied or fabri-

No. 17-3543 51

cated evidence in a way that produced convictions may not

become available until any particular sentence is over. It may

take decades for official misconduct to come to light. Under

the majority’s rule this delay means that a §1983 claim will

never accrue unless the former prisoner can obtain a pardon

or certificate of innocence. On my view, by contrast, the

claim accrues no later than release from prison.

Even after a prisoner’s release, suit may be blocked by

the preclusive effect of the state judgment, but that is a

matter of state law under §1738 and should be dealt with in

the same way as any other invocation of issue or claim pre-

clusion. Likewise, if a state claim does not accrue as a matter

of state law—if, for example, exoneration is an element of a

malicious-prosecution claim—a federal court should honor

that rule.

Ex-prisoners who, despite exercising reasonable dili-

gence, cannot obtain essential evidence within two years of

their release, may invoke the doctrine of equitable tolling to

postpone the time to litigate. It is neither necessary nor ap-

propriate to have a federal rule that defers accrual indefinite-

ly. Savory’s claim may well be timely on my approach, but

he did not make an equitable-tolling argument in the district

court, see 338 F. Supp. 3d 860, 866 (N.D. Ill. 2017), and does

not make one here.

Congress could create by legislation a rule foreclosing

damages until a plaintiff, although no longer in prison, has

been vindicated by a pardon or certificate of innocence, but

such a rule cannot be found in any enacted statute. As long

as accrual is governed by federal common law we ought to

implement a rule that protects the states’ principal interests

(avoiding the use of §1983 to attack ongoing custody and en-

52 No. 17-3543

suring that prisoners present their contentions to the state

judiciary) without needlessly blocking potentially legitimate

federal claims. Savory’s victory today comes at a terrible

price—the extinguishment of many substantively valid con-

stitutional claims.