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 OCTOBER 25, 2018 — DECIDED JANUARY 7, 2019
Before ROVNER, HAMILTON, and BARRETT, Circuit Judges.
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
2 No. 17-3543
governor of Illinois pardoned Savory. Nearly two years after
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 dismissed the suit as
untimely. We reverse and remand for further proceedings.
I.
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 Savory’s complaint,
which we must credit when assessing a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), these officers
subjected Savory to an abusive thirty-one hour interrogation
over a two-day period. Tobey v. Chibucos, 890 F.3d 634, 645 (7th
Cir. 2018) (in reviewing a district court’s decision on a motion
to dismiss pursuant to Rule 12(b)(6), we accept as true all
well-pleaded facts and draw all reasonable inferences in favor
of the non-moving party). The officers fabricated evidence,
wrongfully coerced a false confession from the teen, sup-
pressed and destroyed evidence that would have exonerated
him, fabricated incriminating statements from alleged wit-
nesses, and ignored ample evidence pointing to other suspects.
No legitimate evidence implicated Savory. His arrest, prosecu-
tion 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
No. 17-3543 3
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 issued a
pardon that “acquitted and discharged” Savory’s conviction.
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;
(4) violated his right to be free of involuntary confinement and
servitude under 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 defen-
dants but later conceded that those claims were untimely
under the state’s one-year statute of limitations. Those claims
are not part of this appeal.
4 No. 17-3543
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 gover-
nor on January 12, 2015, which would make 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).
Our analysis begins and ends with Heck, the controlling case.
Heck 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 know-
ingly destroyed exculpatory evidence, and that they caused an
No. 17-3543 5
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. In analyzing the claim,
the Court first found that Heck’s section 1983 claim most
closely resembled the common law tort of malicious prosecu-
tion, which allows damages for confinement imposed pursuant
to legal process, including compensation for arrest and
imprisonment, discomfort or injury to health, and loss of time
and deprivation of society. 512 U.S. at 484. An element that
must be pleaded and proved in a malicious prosecution case is
termination of the prior criminal proceeding in favor of the
accused. This requirement avoids creating two conflicting
resolutions arising out of the same transaction, steering clear
of parallel litigation over the issue of guilt. The requirement
also prevents a convicted criminal from collaterally attacking
the conviction through a civil suit:
We think the hoary principle that civil tort
actions are not appropriate vehicles for challeng-
ing the validity of outstanding criminal judg-
ments applies to § 1983 damages actions that
necessarily require the plaintiff to prove the
unlawfulness of his conviction or confinement,
just as it has always applied to actions for mali-
cious prosecution.
We hold that, in order to recover damages for
allegedly unconstitutional conviction or impris-
onment, or for other harm caused by actions
6 No. 17-3543
whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been re-
versed on direct appeal, expunged by executive
order, declared invalid by a state tribunal autho-
rized to make such determination, 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 convic-
tion or sentence that has not been so invalidated
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 successful, will not demonstrate
the invalidity of any outstanding criminal judg-
ment against the plaintiff, the 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:
No. 17-3543 7
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. See also
Wallace v. Kato, 549 U.S. 384, 393 (2007) (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.”).
Applying this rule 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 mali-
cious 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
wrongful conviction. The statute of limitations for such claims
in Illinois is two years. Heck supplies the rule for accrual of the
claim. Because Savory’s claims “would necessarily imply the
8 No. 17-3543
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. 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 proceed-
ings.
We said that our analysis began and ended with Heck but
for the sake of clarity, 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. The misunderstanding that led to
the erroneous result here originated in a concurrence in Heck
filed by Justice Souter and joined by Justices Blackmun,
Stevens and 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. Ultimately, Justice Souter suggested a slightly different
rule that he submitted would avoid any collision between
section 1983 and the habeas statute:
No. 17-3543 9
A state prisoner may seek federal-court § 1983
damages for unconstitutional conviction or
confinement, 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 challeng-
ing 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 cannot first obtain a favorable state
ruling. The reason, of course, is that individuals
not “in custody” cannot invoke federal habeas
jurisdiction, the only statutory mechanism
besides § 1983 by which individuals may sue
state officials in federal court for violating fed-
eral rights. That would be an untoward result.
Heck, 512 U.S. at 500 (Souter, J., concurring).
10 No. 17-3543
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 out-
standing 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 long-
standing and deeply rooted feature of both the
common law and our own jurisprudence—is not
rendered inapplicable by the fortuity that a
convicted criminal is no longer incarcerated.
Heck, 512 U.S. at 490 n.10 (citations omitted).
The Supreme Court has reaffirmed the Heck framework
several times. See Wallace, 549 U.S. at 393; Nelson v. Campbell,
541 U.S. 637, 646 (2004) (citing 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,
No. 17-3543 11
challenge to his conviction or sentence”); Edwards v. Balisok, 520
U.S. 641, 643 (1997) (same). 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 favor-
able-termination requirement that it would be impossible as a
matter of law for him to satisfy.” Justice Ginsburg, who had
been in the majority in 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. Cross v. United States, 892 F.3d
288, 303 (7th Cir. 2018) (“Unless and until a majority of the
Court overrules the majority opinions in [two prior cases], they
12 No. 17-3543
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) (charac-
terizing as unsettled the position taken by Justice Souter in
Heck and by Justice Ginsburg in Spencer that “unavailability of
habeas for other reasons may also dispense with the Heck
requirement”).
The defendants also asserted below and continue to argue
on appeal that this court has abrogated the rule in Heck, citing
four 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); and Whitfield v. Howard, 852 F.3d
656 (7th Cir. 2017). According 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 stand-
ing conviction without first satisfying the favorable termina-
tion rule of Heck.” Brief of Defendants-Appellees, at 7–8. As we
just explained, this court may not on its own initiative overturn
decisions of the Supreme Court, and in fact none of the cited
cases overturned the core holding of Heck or purported to do
so.
In DeWalt, we considered whether a prisoner could bring
a section 1983 claim related to the loss of his prison job when
No. 17-3543 13
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, his
prison job—making a section 1983 claim the appropriate 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 prison disciplinary
action.” 224 F.3d at 618. We discussed Spencer and Heck only in
the context of answering an 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 concluding that because Muhammad had
similarly raised no claim on which habeas relief could have
been granted on any recognized theory, Heck’s favorable-
termination requirement was inapplicable).
Simpson similarly addressed a claim by a prisoner related
to the conditions of his confinement rather than the lawfulness
of his conviction or duration of confinement. Simpson alleged
that when he complained about prison staff, they retaliated
against him by issuing bogus conduct reports and arranging
for him to be disciplined. 450 F.3d at 305. As a result, he was
14 No. 17-3543
subjected to 300 days in segregation and lost twenty-five days
of recreation privileges. We reversed the district court’s
dismissal for failure to state a claim. The district court had
concluded that, under Heck, Simpson could not bring a suit
that was inconsistent with the findings of the prison disciplin-
ary board unless a state court set those findings aside. We
reaffirmed the core holding of Heck, “that a prisoner whose
grievance implies the invalidity of ongoing custody must seek
review by collateral attack.” 450 F.3d at 306–07. But we also
noted that Heck was not applicable to Simpson’s claims because
“neither disciplinary segregation nor a reduction in the amount
of recreation is a form of ‘custody’ under federal law.” 450 F.3d
at 307. Simpson was not bringing a claim that implied the
invalidity of his underlying conviction or sentence and was
therefore not subject to Heck’s favorable-termination require-
ment. We noted that Muhammad and DeWalt established that:
the doctrine of Heck and Edwards is limited to
prisoners who are “in custody” as a result of the
defendants’ challenged acts, and who therefore
are able to seek collateral review. Take away the
possibility of collateral review and § 1983 be-
comes 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. Read out of context, we understand
how this passage and other passages in Simpson confused the
issue in the district court. Some of this language could be read
to imply that the inability to obtain habeas relief because the
sentence has been served could relieve a section 1983 litigant
of Heck’s favorable-termination requirement. But Heck itself
No. 17-3543 15
rejected that position and Muhammad made clear that the Court
had not yet had an occasion to settle the minority views
expressed in Heck and Spencer.
Neither Burd nor Whitfield support a contrary result. Burd
brought a section 1983 suit for damages, alleging that prison
officials deprived him of access to the prison library, which in
turn prevented him from preparing a timely motion to with-
draw his guilty plea. Burd, 702 F.3d at 431. Burd asserted that
Heck did not apply to his claim because he would not necessar-
ily have been successful in seeking to withdraw his plea. 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.” We also rejected
Burd’s alternate theory, that he should be allowed to proceed
with his section 1983 claim even though it implied that his
conviction was invalid because his sentence was fully dis-
charged and habeas relief was unavailable to him. 702 F.3d at
435–36. But Burd had failed to pursue habeas relief when it
was available to him during his time in custody. We therefore
held “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.
Whitfield addressed a unique factual scenario that bears no
resemblance to Savory’s case. Whitfield reaffirmed Heck, noting
that in “section 1983 suits that did not directly seek immediate
or speedier release, but rather sought monetary damages that
16 No. 17-3543
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. Whitfield
sought damages under section 1983 for the retaliatory revoca-
tion of good time credits. 852 F.3d at 659. He sought collateral
review while he was in prison (albeit in a manner we charac-
terized 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.
We distinguished Balisok in Whitfield:
Had [Balisok] prevailed, the result of the disci-
plinary proceeding would have to have been set
aside. Whitfield, in contrast, is arguing that the
hearings should never have taken place at all,
because they were acts of retaliation for his
No. 17-3543 17
exercise of rights protected by the First Amend-
ment. He has no quarrel with the procedures
used in the prison disciplinary system. He could
just as well be saying that a prison official mali-
ciously calculated an improper release date, or
“lost” the order authorizing his release in retali-
ation 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
prospective 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, 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. In
Whitfield, we thus addressed a fact scenario at the outer edges
of Balisok. It has little bearing on Savory’s claims, which lie at
the core of Heck.
III.
We end where we began: Heck controls the result here.
Savory’s claims, which necessarily imply the invalidity of his
conviction, did not accrue until he was pardoned by the
18 No. 17-3543
governor of Illinois. His section 1983 action was therefore
timely filed, and we reverse the district court’s judgment and
remand for further proceedings.
REVERSED AND REMANDED.