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February 9, 2004.


The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge


Angel Rodriguez has filed suit against Chicago Police detectives John Woodall and Ernest Halvorsen, and the City of Chicago under 42 U.S.C. § 1983, alleging that, while acting within the scope of their employment as Chicago Police officers, they violated his right to a fair trial under the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution. Defendants have moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that Rodriguez failed to bring suit within the applicable statute of limitations. For the reasons stated below, the Court denies defendants' motion.


  The following facts are taken from Rodriguez's complaint, which the Court accepts as true for the purposes of defendants' motion to dismiss.

  On November 24, 1996, Ibrahim Zayed was shot and killed while working at his grocery store, Page 2 Karlov Foods. Andrew Bolton, a store employee, witnessed the shooting and described the killer as a "light-skinned male, white or white Hispanic, who had never come into the store before." Bolton also stated that he had never seen him around the neighborhood.

  Defendant Halvorsen showed Bolton many sets of photographs, but he was unable to make an identification, and after several months, Halvorsen and Woodall had no suspect in the shooting. Under pressure to solve the case, Halvorsen and Woodall allegedly threatened to charge Bolton with conspiracy to commit murder to force him to identify someone so that they could close the case. Woodall, in particular, wanted to close the case to cover-up his involvement with Chicago Police detective Miedzianowski in a narcotics trafficking conspiracy. Halvorsen and Woodall knew Rodriguez had been at church when the shooting occurred, but they believed that he would make a convenient suspect.

  Sensing that Bolton was about to "cooperate," Halvorsen and Woodall again began showing Bolton photo arrays, which now always included pictures of Rodriguez. Bolton concluded, based on Rodriguez's repeated inclusion in the photo arrays, that Halvorsen and Woodall wanted him to identify Rodriguez as the shooter. To keep from being charged himself and to prevent further harassment, Bolton identified Rodriguez as the shooter. In March 1997, Bolton picked Rodriguez out of a police lineup, but Woodall had told Bolton beforehand that Rodriguez would be in the lineup and that he was likely Zayed's killer. Halvorsen and Woodall never told prosecutors that they pressured Bolton into identifying Rodriguez, or that Bolton had told them he had seen the real killer (who was not Rodriguez) buying a snow blower about a week after the shooting.

  Rodriguez was indicted for the murder of Zayed and went to trial in the Circuit Court of Cook Page 3 County, on March 6, 1998. The prosecution offered the eyewitness testimony of Bolton and the corroborating testimony of Halvorsen and Woodall. The prosecution also offered the testimony of an Assistant State's Attorney, who testified that Rodriguez, while in the process of denying involvement in the shooting, blurted out "fake gun" without having been told that Zayed was holding a toy gun at the time of the shooting. The prosecution argued that only the shooter would know that Zayed was holding a toy gun at the time he was shot, but it never offered any evidence that Zayed was, in fact, holding a toy gun. On March 10, 1998, the jury found Rodriguez guilty of Zayed's murder, and he was sentenced to sixty years in the Illinois Department of Corrections.

  On March 31, 2000 the Illinois Appellate Court reversed Rodriguez's conviction because of the lack of reliable evidence, and on August 14, 2000, Rodriguez was released from custody. On February 18, 2003, Rodriguez petitioned the Illinois Prisoner Review Board for a grant of executive clemency. A hearing was held on Plaintiff's petition on July 9, 2003, during which plaintiff, his sister, and others offered testimony. Although the State's Attorney's Office opposed Plaintiff's initial release from custody, it did not oppose his clemency petition, which is still pending.

  Rodriguez filed this suit on June 6, 2003.


  Dismissal under Rule 12(b)(6) is appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v. Nat'l Juvenile Det. Ass'n, 187 F.3d 690, 695 (7th Cir. 1999). In considering the motion, the court accepts as true the facts alleged in the complaint and draws reasonable inferences from those facts in favor of the plaintiff. Jackson v. E.J. Brach Corp., Page 4 176 F.3d 971, 977 (7th Cir. 1999); Zemke v. City of Chicago, 100 F.3d 511, 513 (7th Cir. 1996).

  Defendants argue that Rodriguez's § 1983 claim is barred by Illinois's two year, personal injury statute of limitations, which both parties concede applies to such claims. Citing to Heck v. Humphrey, 512 U.S. 477 (1994), defendants assert that the statute of limitations began to run once the Illinois Appellate Court overturned Rodriguez's conviction in August 2000, and therefore his § 1983 claim is barred because it was not filed until June 2003. Rodriguez contends that the earliest the statute of limitations could have began to run was sometime in early 2003, when Woodall was arrested for and pled guilty to conspiring with other police officers to commit crimes, which included pinning crimes on innocent people. Rodriguez contends that it was not until after discovering this information that he began to suspect that Woodall may have intentionally pinned Zayed's murder on him. Alternatively, Rodriguez argues that, the statute of limitations should be tolled because Woodall fraudulently concealed his violation of Rodriguez's due process rights.

  Defendants' motion is premised largely on the proposition that a claim arising from a wrongful conviction necessarily accrues when the conviction is reversed. But although Heck says that such a claim cannot be filed until the conviction has been overturned or vacated, it does not stand for the proposition that a claim of this type must be filed within two years (or whatever the applicable period is) of the conviction's reversal. Rather, a claim accrues when the plaintiff knows or should know that his constitutional rights were violated. Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992). The violation in this case was not the conviction itself — the Seventh Circuit has held that § 1983 does not permit a claim for malicious prosecution, see Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001) — but rather ...

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