claim is based upon the defendants' actions in malicious prosecuting him. A claim for malicious prosecution does not accrue until a wrongful conviction is invalidated. Heck v. Humphrey, 512 U.S. 477, 489, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994). Here Newsome's conviction was invalidated on the date that charges against him were dropped, i.e., on January 4, 1995. He could not have recovered damages for the malicious prosecution until that date, and so his claim for conspiracy based on malicious prosecution did not accrue until then either. Because he filed this action less than two years later, his conspiracy claim is timely.
The defendants next contend that they are entitled to absolute immunity for their testimony in pretrial proceedings and at trial. As a general principle, they are correct. However, Newsome is not seeking to hold them liable for perjury; he is suing them for malicious prosecution. Newsome has alleged that Dioguardi falsely testified both that Newsome had discussed his alibi with him and (alleged on information and belief) that the witness Rounds had seen the line-up when he had not. But Newsome also has alleged that Dioguardi participated in staging a sham line-up, which led the two eyewitnesses to Cohen's murder to later testify that they had identified Newsome as the killer in that line-up. Consequently, it is not Dioguardi's own allegedly false testimony but his participation in a scheme to fabricate the testimony of the eyewitnesses (without which Newsome asserts he would not have been convicted), as well as the other conduct alleged in the amended complaint, that are the real issue.
Except for the allegations as to Dioguardi, Newsome has not alleged false testimony by any of the defendants. Of course he is not required under Rule 8(a) to allege all of the facts supporting his claim, and it is possible that there are other instances. Should the evidence adduced during discovery suggest that he is seeking to hold a defendant liable solely for testimony for which the defendant has absolute immunity, the issue may be raised on summary judgment. The defendants' motion to dismiss is denied on this issue.
IV. Count IV -- Due Process Violation
Finally the defendants assert that Count III must be dismissed because it fails to state a claim and is time-barred. In that count Newsome alleges that he had a liberty or property interest in good faith compliance with the May 1989 order requiring the CPD to run the fingerprints found at the scene of the Cohen murder through the AFIS system, and as a result of Patterson's and Russell's failure to comply with the order in good faith, he spent an additional five years in prison. He also alleges that the conduct at issue violated his Fifth and Fourteenth Amendment rights.
The defendants assert that Newsome has no claim under the Fifth Amendment because it applies only to federal actors, not state actors. They also contend that Newsome has no claim under the Fourteenth Amendment because in Wilkins the Seventh Circuit held that the Eighth Amendment, not the Fourteenth, applies after conviction. The first assertion is certainly true. The second is specious in this context, for Wilkins addressed only the amendment under which inmates could challenge the constitutionality of their treatment while in confinement after conviction. Wilkins, 872 F.2d at 193. It certainly did not hold, however, that convicted inmates have no rights under the due process clause, and many cases have held that they do. See, e.g., Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418 (1995). Count III will not be dismissed on this issue.
The defendant also contend that Newsome's claim is time-barred because the statute of limitations for Section 1983 actions is two years. But Newsome's allegations indicate that he had no reason to believe that the CPD's original response to the May 1989 order was inaccurate until November 24, 1994, when Patterson admitted that the fingerprints from the crime scene matched those of Dennis Emerson found in the AFIS. As a result, he had no reason to know that he had been injured by the manner in which the AFIS search was done until November 1994. Under the federal discovery rule applicable to Section 1983 actions, Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 717 (7th Cir.), cert. denied, 513 U.S. 872, 130 L. Ed. 2d 129, 115 S. Ct. 197 (1994), his claim is therefore timely.
In their reply brief, the defendants argue that Count III must be dismissed under Rule 8(a) because it is not clear what Newsome's Fourteenth Amendment claim is. They assert that they thought he was raising a substantive due process claim, while his response indicates it is a procedural due process claim. But Newsome did not say in his response that he was asserting a procedural due process claim, and there is nothing in his argument that suggests that he is.
Moreover Rule 8(a) does not require a plaintiff to identify the legal theory behind each claim, Shannon v. Shannon, 965 F.2d 542, 553 (7th Cir.), cert. denied, 506 U.S. 1028 (1992), and it is beyond argument that Count III sets forth sufficient facts to put Patterson and Russell on notice as to the substance of Newsome's claim against them.
Because we conclude that Newsome is not asserting a procedural due process claim, we need not address the defendants' argument in reply that his claim is barred by Parratt v. Taylor, 451 U.S. 527, 541, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981).
For the reasons set forth above, the defendants' motion to dismiss the amended complaint is granted as to Count I against James, who is dismissed from that count with prejudice. Motion denied on all other issues.
Paul E. Plunkett
UNITED STATES DISTRICT JUDGE
DATED: June 30, 1997