In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1203
BILLY JULIAN,
Plaintiff‐Appellant,
v.
SAM HANNA, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:11‐cv‐01536‐TWP‐DML — Tanya Walton Pratt, Judge.
____________________
ARGUED SEPTEMBER 24, 2013 — DECIDED OCTOBER 21, 2013
____________________
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 defendants: a school that
2 No. 13‐1203
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 ma‐
licious 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 investi‐
gate the arson. One of them, without any lawful reason, de‐
cided that Billy Julian should be a suspect. The officers co‐
erced 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 sen‐
tence 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 mari‐
juana, had not left his home that night. (In fact he’d been on
house arrest and wearing an ankle bracelet, and the brace‐
let’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 ap‐
No. 13‐1203 3
peal by the state, State v. Julian, 2007 WL 1576354 (Ind. App.
May 31, 2007), his post‐conviction relief became final. State v.
Julian, 2007 WL 4592378 (Ind. Sept. 25, 2007) (denying trans‐
fer). 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 origi‐
nally scheduled for May 2008, but the trial date kept getting
rescheduled. The last date on which it was scheduled to be‐
gin was in November 2009. That date came and went with‐
out 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); Com‐
mercial Credit Corp. v. Ensley, 264 N.E.2d 80, 85 (Ind. App.
1970), so that is the limitations period for a malicious prose‐
cution claim brought in Indiana under 42 U.S.C. § 1983, be‐
cause it’s a personal‐injury claim. See Wilson v. Garcia, 471
U.S. 261, 271 (1985); Richards v. Mitcheff, 696 F.3d 635, 637
(7th Cir. 2012); Irwin Mortgage Corp. v. Marion County Treas‐
urer, 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 mis‐
taken. Under both state and federal law a malicious prosecu‐
tion claim does not accrue until the criminal proceeding that
gave rise to it ends in the claimant’s favor. Heck v. Humphrey,
4 No. 13‐1203
512 U.S. 477, 484 (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 dis‐
missed, and that was less than two years before he sued. Al‐
though 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 hap‐
pened, the criminal case had not terminated in his favor. Jul‐
ian’s claim thus is timely.
So we come to the merits. The defendants’ principal ar‐
gument 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 alter‐
native, 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 (1994), pur‐
suant to the rule of United States v. Marks, 430 U.S. 188, 193
(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
No. 13‐1203 5
U.S. 153, 169 n. 15 (1976) (plurality opinion). But ultimately
our decisions derive from Parratt v. Taylor, 451 U.S. 527
(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 Par‐
ratt (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 (1990); Hudson v. Palmer, 468 U.S. 517, 533
(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 sec‐
tion 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 (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 prosecu‐
tion 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. Dis‐
trict of Columbia, 491 F.3d 494, 510–11 (D.C. Cir. 2007); Her‐
nandez‐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
6 No. 13‐1203
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 con‐
sider 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 dam‐
ages 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. Ind. Code § 34‐13‐3‐3(6); Butt v. McEvoy, supra, 669
N.E.2d at 1017–18; Alexander v. McKinney, 692 F.3d 553, 556
(7th Cir. 2012) (Indiana law). Interpreting the same Indiana
immunity statute, we held in Belcher v. Norton, supra, 497
F.3d at 751–53, that it deprives plaintiffs who assert due
process claims against state officers of an adequate alterna‐
tive remedy to a federal suit.
Inexcusably the defendants’ briefs do not mention Belch‐
er. Instead they try an end run, arguing that Julian could
No. 13‐1203 7
have invoked state remedies against which the officers
would have had no absolute immunity: he could have sued
for false arrest (indeed could have filed such a suit under
section 1983, invoking the Fourth Amendment, Johnson v.
Saville, 575 F.3d 656, 663–64 (7th Cir. 2009); McCullah v. Gad‐
ert, 344 F.3d 655, 659‐60 (7th Cir. 2003), as well as under
Indiana law) and false imprisonment. Row v. Holt, 864
N.E.2d 1011, 1016 (Ind. 2007). But such charges would not
give rise to adequate remedies for the wrongs that Julian al‐
leges.
He had been arrested shortly after the arson but released
the next week. Upon being convicted, however, he was im‐
prisoned, and he was not released until 2006, by which time
he had served 38 months in prison. The damages he could
hope to receive for his false arrest would be slight because of
the brevity of the period in which he had been held in jail
before being formally charged. Because suits for false arrest
and false imprisonment provide remedies only for detention
that occurs before formal charges kick off an actual prosecu‐
tion, and because Indiana law treats false arrest and false
imprisonment as a single tort when they spring from deten‐
tion without probable cause, Bentz v. City of Kendallville, 577
F.3d 776, 780 (7th Cir. 2009), Julian would be able to recover
for those torts only the damages he sustained during the
week or so that he was detained before being formally
charged. Wallace v. Kato, 549 U.S. 384, 389–90 (2007); Johnson
v. Blackwell, 885 N.E.2d 25, 30 (Ind. App. 2008). These dam‐
ages would be only a fraction of the total damages attribut‐
able to his malicious prosecution, for those damages accu‐
mulated over the entire period that began with his arrest and
ended only when the charges against him were dismissed—
a period of 9 years and 3 months. Throughout this period,
8 No. 13‐1203
when he was not actually in prison he was (or so he alleges,
and quite plausibly) tormented by fear of being imprisoned
or re‐imprisoned and unable to obtain employment. “The
plaintiff [in a malicious prosecution suit] may recover com‐
pensation for any arrest or imprisonment, including dam‐
ages for discomfort or injury to his health, or loss of time and
deprivation of the society of his family. He may recover any
reasonable expenses to which he has been put in defending
the prosecution and establishing his innocence, including
attorney’s fees in the criminal proceeding, although such
fees in the action for malicious prosecution itself are nor‐
mally not recoverable.” W. Page Keeton et al., Prosser and
Keeton on Torts § 119, pp. 887–88 (5th ed. 1984).
If Indiana defined false arrest or false imprisonment so
broadly that it largely overlapped malicious prosecution, the
remedies it provides to someone in Julian’s situation might
be adequate; for “adequacy” is a loose concept, and there is
enough play in its joints to allow considerable variance in
state remedies for the injuries inflicted by malicious prosecu‐
tion, cf. Parratt v. Taylor, supra, 451 U.S. at 543–44 (illustrative
are N.Y. Court of Claims Act § 8; Kan. Stat. § 75‐6105(a), (c),
and 705 ILCS 505/8(c), (d))—but of course only within limits.
Conventional definitions of false arrest and false imprison‐
ment, adopted by Indiana, see Earles v. Perkins, 788 N.E.2d
1260, 1265 (Ind. App. 2003); cf. Wallace v. Kato, supra, 549 U.S.
at 388–90, do not make the remedies for those torts adequate
substitutes for a remedy for malicious prosecution. After be‐
ing released from prison in May 2006, Julian remained in
limbo for more than four years. Limbo is not as bad as hell,
but it’s sufficiently bad that it can’t be written off com‐
pletely. Yet that is what the defendants ask us to do: recog‐
nize no remedy for malicious prosecution by Indiana public
No. 13‐1203 9
officers, leaving the defendant remediless if he manages to
avoid jail or prison for any of the time during which he’s be‐
ing maliciously prosecuted. For the defendants’ counsel
stated at oral argument that even if Julian’s false arrest had
lasted for only a day, a suit for false arrest would provide a
sufficient alternative state remedy to a suit for malicious
prosecution to bar him from bringing a federal suit for mali‐
cious prosecution.
At least the defendants don’t argue that if Julian can
bring a federal suit he would still have to bring suits for false
arrest and false imprisonment if he wanted to obtain full
compensation. That argument would fail because the dam‐
ages resulting from the false arrest and false imprisonment
were foreseeable and therefore actionable consequences of
the malicious prosecution, as noted by Keeton et al., supra,
§ 119, pp. 885–86, 888.
Defense counsel exceeded the bounds of responsible ad‐
vocacy by arguing in the alternative that because the abso‐
lute immunity from suits against state officers for malicious
prosecution was decreed by the Indiana legislature, it satis‐
fies due process—“legislative due process”—and therefore
bars this suit. Were that correct it would mean that the Indi‐
ana legislature, provided only that it complied with its pro‐
cedures governing legislative enactment, could with impu‐
nity strip residents of Indiana of all their federal and state
constitutional rights.
In holding that Indiana’s failure to provide an adequate
remedy for malicious prosecution by public officers opens
the door to federal malicious prosecution suits against such
officers, we don’t mean to belittle the state’s interest in limit‐
ing officers’ liability. The grant of tort immunities to public
10 No. 13‐1203
employees involved in law enforcement is commonplace,
though in the case of police officers as distinct from judges
and prosecutors the immunities normally are qualified
rather than absolute, and a qualified immunity would not
protect the deliberately wrongful (indeed outrageous) con‐
duct alleged in Julian’s complaint. Ashcroft v. al‐Kidd, 131 S.
Ct. 2074, 2085 (2011); Buckley v. Fitzsimmons, 20 F.3d 789,
796–97 (7th Cir. 1994); Pierce v. Gilchrist, 359 F.3d 1279, 1299–
300 (10th Cir. 2004); Spurlock v. Satterfield, 167 F.3d 995, 1005–
06 (6th Cir. 1999).
An alternative to immunity is indemnification of dam‐
ages imposed on an officer for conduct within the scope of
his employment. That is a common defense, Theodore
Eisenberg & Stewart Schwab, “The Reality of Constitutional
Tort Litigation,” 72 Cornell L. Rev. 641, 685–86 (1987)—and
Indiana has adopted it. Ind. Code § 34‐13‐3‐5(d), (e). So Indi‐
ana provides both protections to its police.
Both are devices for preventing public officers from be‐
ing made timid in the performance of their duties by fear of
being sued by persons whom they arrest or investigate. In‐
demnification provides somewhat less protection, because
an officer indemnified for damages imposed on him will
merely have shifted the cost to his employer, or the state (his
ultimate employer), and the cost he has thus imposed may
be harmful to his career. But indemnification provides more
protection to the victims of official misconduct, because po‐
lice officers are likely to be judgment‐proof. Another alterna‐
tive to immunity is a cap on damages, a common feature of
public employee tort liability, see, e.g., 705 ILCS 505/8(d)
($100,000 cap); Ga. Code § 50‐21‐29(b)(1) ($1,000,000); Utah
Code § 63G‐7‐604(1)(a) (an oddly specific $583,900), and, to
No. 13‐1203 11
our knowledge, unchallenged in cases governed by the Par‐
ratt doctrine. This is not to say that they can’t be challenged.
Nor do we want to be understood as approving the specific
caps in the statutes that we’ve cited as illustrative. But what‐
ever the lowest damages cap may be that would leave the
state remedy adequate, it is not zero.
A state cannot be permitted to create blanket immunities
from federal suits for violations of federal law (such as the
Fourteenth Amendment’s due process clause), as Indiana
has done in this case. Or has it? For another wrinkle, though
unremarked by the parties or the district judge, is the pres‐
ence of the Town of Frankton and the county sheriff as de‐
fendants. The basis of their being joined is an allegation that
policymaking officials of the Town, and the sheriff, condone
police misconduct. E.g., Vodak v. City of Chicago, 639 F.3d 738,
747–49 (7th Cir. 2011). These allegations present the question
whether Julian would have an adequate state remedy
against governmental entities, given that the Indiana Tort
Claims Act makes clear that there is no remedy against the
individual employees for anything they did that was within
the scope of their employment, construed very broadly. See
Ind Code §§ 34‐13‐3‐5(b), (c). Although there is no sugges‐
tion in any of the briefs, or in anything said by the district
judge, that Indiana has tried to confer immunity on local
governments sued for (in effect) complicity in malicious
prosecution by their employees, it has: “A governmental en‐
tity or an employee acting within the scope of the em‐
ployeeʹs employment is not liable if a loss results from … the
initiation of a judicial or an administrative proceeding.” Ind.
Code § 34‐13‐3‐3(6). So Julian no more has an adequate state
law remedy against the Town and the sheriff than he does
against the police officers.
12 No. 13‐1203
The complaint contains other claims besides malicious
prosecution, but only one received even passing mention by
the district judge and in the briefs, and then only, and sum‐
marily, in Julian’s briefs. That is a claim of withholding ex‐
culpatory evidence from the defense in Julian’s criminal pro‐
ceeding, in violation of the rule of Brady v. Maryland, 373 U.S.
83 (1963). If Julian prevails on his federal malicious prosecu‐
tion claim, his claim under Brady will become academic be‐
cause success in it would not yield any additional damages.
But if the malicious prosecution claim fails—maybe the evi‐
dence will show, improbable as that now seems, that there
was probable cause to prosecute Julian for the high school
fire—the Brady claim will provide a fallback for him.
The district judge dismissed the claim as barred by Indi‐
ana’s two‐year statute of limitations. Unlike the malicious
prosecution claim, the Brady claim may have accrued when
Julian was granted a new trial in September 2007, more than
two years before the filing of the present suit. That was be‐
fore the charges against him were dropped; and ordinarily a
Brady claim does not accrue until that happens. Johnson v.
Dossey, 515 F.3d 778, 781–82 (7th Cir. 2008); Newsome v.
McCabe, supra, 256 F.3d at 752. But although Julian’s ordeal
was not over (because he was subject to being retried), his
Brady claim was ripe. The exculpatory evidence had been
revealed; the harm the alleged Brady violation had done
could not be affected by a retrial. But it would be tidier to
postpone accrual until the charges were dropped, as other‐
wise Julian might have had to bring a separate section 1983
suit while defending against criminal charges in a retrial.
We needn’t pursue the issue. Julian doesn’t challenge the
district judge’s accrual determination; he challenges her ig‐
No. 13‐1203 13
noring his contention that the defendants should be equita‐
bly estopped to plead the statute of limitations as a defense
to his Brady claim. A defendant who prevents a timely filing
of a suit against him, for example by promising the plaintiff
not to plead the statute of limitations, is estopped (that is,
forbidden) to plead the statute of limitations. E.g., Shropshear
v. Corporation Counsel of City of Chicago, 275 F.3d 593, 595 (7th
Cir. 2001); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450–
51 (7th Cir. 1990); Lukovsky v. City & County of San Francisco,
535 F.3d 1044, 1052 (9th Cir. 2008). And that is what Julian
alleges happened: the defendants intimidated him into de‐
laying the filing of his civil suit until the criminal proceeding
ended with the dismissal of the charges against him in July
2010. If this is true, the limitations clock did not start to tick
until then, which would place his November 2011 filing well
within the two‐year limitations period. The district judge
will have to address the equitable‐estoppel issue on remand.
The judgment is reversed and the case remanded for fur‐
ther proceedings consistent with this opinion.
REVERSED AND REMANDED.