Nahmod Law

There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the section 1983 plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action. In such cases, the section 1983 claim does not accrue until the underlying conviction is overturned or vacated. This accrual rule arises, according to the Supreme Court, at the “intersection” of section 1983 and habeas corpus.

(For background, you can find earlier posts by searching “Heck”. For much more, you can consult Chapter 9 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2019)(West/Westlaw)).

A “Hypothetical”

But suppose a situation where a section 1983 plaintiff has already served a lengthy sentence for a serious crime he has consistently maintained he never committed (but was framed for). He can no longer get habeas relief, because he is no longer in custody. Suppose further that he is subsequently pardoned by the governor.

When does his section 1983 claim alleging he was framed accrue: when he was released from custody or when he was pardoned by the governor? You may recognize this kind of question from Justice Souter’s concurring opinion in Spencer v. Kemna, 523 U.S. 1 (1998) and from the comments of other justices.

The Seventh Circuit’s Decision in Savory v. Cannon

In Savory v. Cannon, 2020 WL 240447, *9, *17 (7^th Cir. 2020), an important Seventh Circuit decision with a dissent by Judge Easterbrook, the majority declared: “Heck controls the outcome where a section 1983 claim implies the invalidity of the conviction of the sentence, regardless of the availability of habeas relief.”

In Savory, the plaintiff, who spent 30 years in prison for a double murder he insisted he never committed and who was paroled in December 2006, had his sentence commuted in December 2011 and was pardoned by the Illinois governor on January 12, 2015. He then sued a city and certain city police officers on January 11, 2017 (less than two years after the pardon) alleging that he was framed and asserting various constitutional violations. Reversing the district court, the Seventh Circuit, applying Heck, determined that the plaintiff’s claims were timely under the Illinois two-year limitations period. The Heck bar was lifted and his claims did not accrue until he was pardoned by the governor on January 12, 2015, not earlier when his parole had been terminated in December 2011 by the commutation of his sentence and when he could therefore no longer seek habeas relief.

The Seventh Circuit, reasoning that the plaintiff’s claims most resembled the common-law tort of malicious prosecution, relied both on Heck and on the Court’s fabrication of evidence accrual decision in McDonough v. Smith, 139 S. Ct. 2149 (2019)(search this blog for “McDonough”). It expressly rejected the defense argument, based on dicta of several Supreme Court justices (including Justice Souter) in various concurring and dissenting opinions, for an accrual rule tied to the end of custody, namely, December 2011. It also acknowledged that the language and reasoning in several of its prior decisions “ha[d] created confusion regarding the applicability of Heck in cases where habeas relief is not available.”

Judge Easterbook dissented, 2020 WL240447, *18,  arguing that the majority should have adopted a Heck accrual rule tied to the end of custody. He explained that the Seventh Circuit “should be equally concerned about a rule starting the time so late that claims never accrue [as it is ‘about a rule starting the time so early that legitimate claims would be lost.’].”

The Seventh Circuit’s approach to Heck accrual obviously has significant implications for the timeliness of section 1983 litigation where falsely convicted persons have served their sentences, are no longer in custody, are subsequently exonerated and now seek section 1983 damages recourse against those responsible for their convictions.

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