997 F.2d 355 (7th Cir. 1993), 89-1323, Heck v. Humphrey

Docket Nº:89-1323.
Citation:997 F.2d 355
Party Name:Roy HECK, Plaintiff-Appellant, v. James HUMPHREY, Dearborn County Prosecutor, Robert Ewbank, Attorney, and Michael Krinoph, Indiana State Police Investigator, Defendants-Appellees.
Case Date:July 01, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 355

997 F.2d 355 (7th Cir. 1993)

Roy HECK, Plaintiff-Appellant,

v.

James HUMPHREY, Dearborn County Prosecutor, Robert Ewbank,

Attorney, and Michael Krinoph, Indiana State

Police Investigator, Defendants-Appellees.

No. 89-1323.

United States Court of Appeals, Seventh Circuit

July 1, 1993

Submitted July 24, 1992.

Resubmitted March 1, 1993 *

Page 356

Kathleen M. O'Laughlin, Keck, Mahin & Cate, Chicago, IL, for plaintiff-appellant.

David M. Wallman, Deputy Atty. Gen., Office of the Atty. Gen., Federal Litigation, Indianapolis, IN, for defendants-appellees.

Before CUMMINGS, POSNER, and MANION, Circuit Judges.

POSNER, Circuit Judge.

This pro se prisoner civil rights suit charges that the defendants engineered the

Page 357

plaintiff's conviction for murder by, among other wrongful conduct, the destruction of exculpatory evidence. Compensatory and punitive damages were sought. The plaintiff made no effort to exhaust his state remedies against wrongful conviction, however, and this was, as the district court ruled in dismissing the suit, a fatal omission. If, regardless of the relief sought, the plaintiff is challenging the legality of his conviction, so that if he won his case the state would be obliged to release him even if he hadn't sought that relief, the suit is classified as an application for habeas corpus and the plaintiff must exhaust his state remedies, on pain of dismissal if he fails to do so. Viens v. Daniels, 871 F.2d 1328, 1332 (7th Cir.1989); Scruggs v. Moellering, 870 F.2d 376, 379 (7th Cir.1989); Hanson v. Heckel, 791 F.2d 93 (7th Cir.1986) (per curiam). This is such a case, as the plaintiff, while not explicitly requesting that his conviction be vacated, claims that he would not have been convicted had the defendants not violated his constitutional rights. Indeed, if his conviction were proper, this suit would in all likelihood be barred by res judicata.

The difficult question is whether the suit should have been stayed rather than dismissed lest the plaintiff be prevented by the statute of limitations from refiling it after he exhausts his state remedies. The defendants' alleged misconduct took place in 1987 and the applicable statute of limitations is only two years and is not tolled by a plaintiff's imprisonment. Ind.Code §§ 34-1-2-2, 34-1-67-1(6); Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Bailey v. Faulkner, 765 F.2d 102 (7th Cir.1985). So if we affirm the dismissal of his suit, and Heck should later refile after exhausting his state remedies, he will be met by a...

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