Julian v. Hanna

• Decision Date: 21 October 2013
• Docket Number: No. 13–1203.,13–1203.
• Citation: 732 F.3d 842
• Parties: Billy JULIAN, Plaintiff–Appellant, v. Sam HANNA, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

732 F.3d 842

Billy JULIAN, Plaintiff–Appellant,

v.Sam HANNA, et al., Defendants–Appellees.

No. 13–1203.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 24, 2013.

Decided Oct. 21, 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 criminal charges against him been dropped—rather, the case had been remanded for a retrial. Until the retrial was held, and ended favorably to him, or the charges against him were dropped without a retrial, which is what happened, the criminal case had not terminated in his favor. Julian's claim thus is timely.

So we come to the merits. The defendants' principal argument is that Julian could not bring a claim for malicious prosecution under section 1983, but only under Indiana law. We've held that a federal claim for malicious prosecution is actionable only if the state fails to provide an adequate alternative, whether called a claim of malicious prosecution or something else. Parish v. City of Chicago, 594 F.3d 551, 552 (7th Cir.2009); Bontkowski v. Smith, 305 F.3d 757, 760 (7th Cir.2002); Newsome v. McCabe, 256 F.3d 747, 750–51 (7th Cir.2001). These decisions derive mediately from the position taken in the concurring opinion of Justices Kennedy and Thomas in Albright v. Oliver, 510 U.S. 266, 285–86, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), pursuant to the rule of Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), that “when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds,’ ” Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion). But ultimately our decisions derive from Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), which held that a complaint based on the Fourteenth Amendment's due process clause does not state a claim if the injury complained of was the isolated bad act of a state employee rather than the product of a state policy. But both the concurrence in Albright, and the broader holding of Parratt (broader because not limited to malicious prosecution), are explicit that to preclude the federal remedy there must be an adequate state remedy. See also Zinermon v. Burch, 494 U.S. 113, 128–29, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Cushing v. City of Chicago, 3 F.3d 1156, 1164 (7th Cir.1993); Alexandre v. Cortes, 140 F.3d 406, 411–12 (2d Cir.1998). In its absence a plaintiff denied due process and deprived of liberty as a result of that denial can obtain relief under section 1983. See, e.g., Belcher v. Norton, 497 F.3d 742, 751–53 (7th Cir.2007); Mahoney v. Kesery, 976 F.2d 1054, 1059–61 (7th Cir.1992); Albright v. Oliver, 975 F.2d 343, 345–47 (7th Cir.1992), aff'd, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–70 and n. 4 (9th Cir.2004); Castellano v. Fragozo, 352 F.3d 939, 957–58 (5th Cir.2003) (en banc).

Most federal courts of appeals go further, holding that section 1983 authorizes a federal claim of malicious prosecution regardless of what alternative remedy a state provides, at least if the plaintiff had been seized in the course of the malicious prosecution, which the cases believe justifies grounding the malicious prosecution claim in the Fourth Amendment, thus avoiding the Parratt principle. Pitt v. District of Columbia, 491 F.3d 494, 510–11 (D.C.Cir.2007); Hernandez–Cuevas v. Taylor, 723 F.3d 91, 99–101 (1st Cir.2013); Swartz v. Insogna, 704 F.3d 105, 111–12 (2d Cir.2013); Gallo v. City of Philadelphia, 161 F.3d 217, 221–22 (3d Cir.1998); Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir.2012); Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir.2007); Novitsky v. City of Aurora, 491 F.3d 1244, 1257–58 (10th Cir.2007); Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir.2004). Julian's lawyer asks us to overrule Newsome and join those other circuits. That is overreach. This is not a proper case in which to consider such a proposal. We're about to see that Julian, if his evidence holds up, wins under Newsome; and if it doesn't hold up, he loses under the decisions of the other circuits as well. For the elements of a federal malicious prosecution claim are the same whether the claim is based on the Fourth Amendment or on the due process clause of the Fourteenth Amendment. Whether or not his claim holds up must abide a trial in the district court.

The alternative state remedy for a malicious prosecution engineered by rogue police officers would normally be damages obtainable in a suit charging malicious prosecution in violation of state common law. Indiana authorizes such suits, e.g., City of New Haven v. Reichhart, 748 N.E.2d 374, 378–79 (Ind.2001); Alexander v. United States, 721 F.3d 418, 422–23 (7th Cir.2013) (Indiana law)—but grants absolute immunity to state officers, such as the defendants in this case....