Argued Sept. 24, 2013.
Elizabeth Wang, Attorney, Loevy & Loevy, Chicago, IL, for Plaintiff-Appellant.
Stephanie L. Cassman, Attorney, Lewis Wagner, LLP, Kyle A. Jones, Attorney, Norris Choplin & Schroeder, LLP, Ian L. Stewart, Attorney, Stephenson Morow & Semler, Daniel M. Witte, Attorney, Travelers Staff Council Office, Indianapolis, IN, for Defendant-Appellee.
Before POSNER, TINDER, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge.
The plaintiff in this suit under 42 U.S.C. § 1983 appeals from the dismissal (with prejudice) of his complaint. The complaint charges three Indiana police officers, plus the Town (Frankton) that employed two of them, plus the county sheriff, with malicious prosecution in violation of the due process clause of the Fourteenth Amendment. Other torts are alleged as well; we'll come back to them. There are two superfluous: a school that employed one of the officers, who was also employed by the Town (which is all that matters); and the County, which was dismissed but remains listed in the caption of the appeal.
The district judge dismissed the malicious prosecution claim on the alternative grounds that it was untimely and that Indiana state law provides an adequate remedy for malicious prosecution, barring recourse to section 1983.
The complaint alleges the following facts: On a March night in 2001 a burglar set fire to Frankton's public high school with an acetylene torch, causing millions of dollars in damages. The defendant officers were assigned to investigate the arson. One of them, without any lawful reason, decided that Billy Julian should be a suspect. The officers coerced another suspect, and other witnesses as well, to accuse Julian. The defendant officers knew the accusations were false— the officers had fabricated them and fed them to the witnesses. But in April 2001 an information was filed against Julian charging him with arson, burglary, and attempted theft, and in March 2003 he was convicted of these crimes and sentenced to 15 years in prison. The conviction and sentence were affirmed the next year. Julian v. State, 811 N.E.2d 392 (Ind.App.2004).
Julian sought post-conviction relief in the state courts and eventually obtained it by proving that a key prosecution witness, who had testified that he had met Julian in the high school parking lot, shortly before the fire, to sell Julian marijuana, had not left his home that night. (In fact he'd been on house arrest and wearing an ankle bracelet, and the bracelet's monitoring system recorded him as having been home all that night.) Julian was released from prison in 2006. In September of the following year, after an unsuccessful appeal by the state, State v. Julian, 868 N.E.2d 73 (Ind.App.2007), his post-conviction relief became final. State v. Julian, 878 N.E.2d 212 (Ind.2007) (denying transfer). But he had not been acquitted; and in December 2007 the court in which he had been tried scheduled a retrial of the charges against him.
The defendants threatened Julian in an effort to deter him from filing a suit for malicious prosecution. On the advice of lawyers whom he consulted he decided to defer filing such a suit until the judgment in his retrial. The retrial was originally scheduled for May 2008, but the trial date kept getting rescheduled. The last date on which it was scheduled to begin was in November 2009. That date came and went without a trial. In July of the following year the state dismissed all the charges against Julian. He filed this suit in November 2011.
The Indiana statute of limitations applicable to claims of personal injury is two years, Ind.Code § 34-11-2-4(a); Commercial Credit Corp. v. Ensley, 148 Ind.App. 151, 264 N.E.2d 80, 85 (1970), so that
is the limitations period for a malicious prosecution claim brought in Indiana under 42 U.S.C. § 1983, because it's a personal-injury claim. See Wilson v. Garcia, 471 U.S. 261, 271, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir.2012); Irwin Mortgage Corp. v. Marion County Treasurer, 816 N.E.2d 439, 443 (Ind.App.2004). The defendants argued that Julian's claim accrued when his conviction was reversed, which was way more than two years before he filed this suit. The district judge agreed. But she was mistaken. Under both state and federal law a malicious prosecution claim does not accrue until the criminal proceeding that gave rise to it ends in the claimant's favor. Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Brooks v. Ross, 578 F.3d 574, 579 (7th Cir.2009); Butt v. McEvoy, 669 N.E.2d 1015, 1017 (Ind.App.1996); 3 Dan B. Dobbs et al., The Law of Torts § 590, p. 402 (2d ed.2011); Restatement (Second) of Torts § 658 (1977). That didn't happen until the charges against Julian were dismissed, and that was less than two years before he sued. Although his conviction had been reversed much earlier and the reversal affirmed, he had not been ordered acquitted; nor had the ...