Moore Ex Rel. Estate of Jones v. Burge

In the

United States Court of Appeals
For the Seventh Circuit
____________________

No. 13-‐‑3301
DIAMONIQUE MOORE, AS ADMINISTRATOR OF THE ESTATE OF
MELVIN JONES, et al.,
Plaintiffs-‐‑Appellants,
v.

JON BURGE, et al.,
Defendants-‐‑Appellees.
____________________

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 4143 — John W. Darrah, Judge.
____________________

ARGUED SEPTEMBER 10, 2014 — DECIDED NOVEMBER 13, 2014
____________________

Before WOOD, Chief Judge, and EASTERBROOK and TINDER,
Circuit Judges.
EASTERBROOK, Circuit Judge. Multiple persons interrogat-‐‑
ed by the infamous Jon Burge and other officers he trained
or influenced seek damages in this suit under 42 U.S.C.
§1983. Between 1972 and 1991, while employed by Chicago’s
police force, Burge regularly tortured people to extract
statements. After the statute of limitations for prosecuting
2 No. 13-‐‑3301

Burge about that misconduct expired, he was convicted of
lying about his practices. United States v. Burge, 711 F.3d 803
(7th Cir. 2013). Our plaintiffs—Melvin Jones (who died early
this year; his estate has been substituted), Alnoraindus Bur-‐‑
ton, Aubree Dungey, James Freeman, and Sherrod Tillis—all
contend that Burge or his henchmen physically abused them
during interrogations.
This suit began in June 2011 with Jones as the sole plain-‐‑
tiff. The other four plaintiffs were added in 2012. By then
Burge had long since moved from the police force to the de-‐‑
fendant’s dock. The last interrogation about which any of the
five plaintiffs complains occurred in 2004, and the statute of
limitations for §1983 actions in Illinois is only two years.
Wallace v. Kato, 549 U.S. 384, 387 (2007). The last adverse
event that might have been influenced by the interrogations
was Freeman’s conviction in February 2009, more than two
years before Jones sued (and more than three years before
Freeman joined the suit). Burton, Dungey, Freeman, and Til-‐‑
lis are in prison following convictions for serious crimes;
each conviction is supported by evidence independent of
confessions induced by misconduct during interrogation.
Jones, who was arrested and interrogated in 1982, was con-‐‑
victed the next year of murder, but that conviction was re-‐‑
versed because some of the evidence was inadmissible. Peo-‐‑
ple v. Jones, 157 Ill. App. 3d 1006 (1987). Jones was retried in
1989 and acquitted. Yet he did not file this suit until 22 years
later. The district court dismissed all five plaintiffs’ claims as
barred by the statute of limitations. 2013 U.S. Dist. LEXIS
133065 (N.D. Ill. Sept. 17, 2013).
The judge also held that four plaintiffs’ claims (all but
Jones’s) are blocked by Heck v. Humphrey, 512 U.S. 477 (1994),
No. 13-‐‑3301 3

because they remain in prison. The judge did not recognize
that, if Heck governs, then these plaintiffs’ claims are too ear-‐‑
ly, not too late—for Heck holds that a claim that implies the
invalidity of a criminal conviction does not accrue, and the
statute of limitations does not begin to run, until the convic-‐‑
tion is set aside by the judiciary or the defendant receives a
pardon. But we think the district judge wrong about Heck,
because he did not take account of the rule that claims based
on out-‐‑of-‐‑court events, such as gathering of evidence, accrue
as soon as the constitutional violation occurs. That’s because
misconduct by the police does not (at least, need not) imply
the invalidity of any particular conviction. See not only Wal-‐‑
lace but also, e.g., Rollins v. Willett, No. 14-‐‑2115 (7th Cir. Oct.
21, 2014); Booker v. Ward, 94 F.3d 1052 (7th Cir. 1996). These
decisions deal with the Fourth Amendment’s rule against
unreasonable searches and seizures; their holdings are
equally applicable to contentions that police tortured sus-‐‑
pects during interrogation, because that misconduct is ac-‐‑
tionable whether or not a suspect confesses, and whether or
not any statement is used in evidence at trial.
To the extent that Burton, Dungey, Freeman, and Tillis
may be arguing that police violated their rights by giving
false testimony, or that during trial prosecutors withheld
material exculpatory evidence about misconduct during
their interrogations, Heck indeed bars relief until a conviction
is set aside. The district court must modify its judgment so
that any claims based on proceedings in court are dismissed
without prejudice under Heck. Absolute immunity for prose-‐‑
cutors and witnesses, see Rehberg v. Paulk, 132 S. Ct. 1497
(2012); Buckley v. Fitzsimmons, 509 U.S. 259 (1993), would
make it hard for these plaintiffs to recover damages based on
the conduct of the trials even if their convictions should be
4 No. 13-‐‑3301

vacated some day. That may be why all five plaintiffs stress
the injuries they say they suffered at the hands of the police
before judicial proceedings began. Those claims are unaf-‐‑
fected by Heck and are outside the scope of anyone’s abso-‐‑
lute immunity.
Plaintiffs excuse their delay by relying on what they call
a “continuing violation doctrine.” Some decisions, issued
before Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618
(2007), and National Railroad Passenger Corp. v. Morgan, 536
U.S. 101 (2002), concluded that when a given person com-‐‑
mits multiple transgressions against the same victim, the pe-‐‑
riod of limitations runs from the final wrongdoing. But Mor-‐‑
gan rejected that understanding for the category of wrongs
that it called “discrete acts,” such as a failure to hire or pro-‐‑
mote someone. Each discrete act—something wrongful in-‐‑
dependent of other events—carries its own period of limita-‐‑
tions, the Court held, 536 U.S. at 110–15, contrasting discrete
acts with other deeds, such as on-‐‑the-‐‑job harassment, that
are wrongful only cumulatively. Id. at 115–21. In cumulative-‐‑
violation situations, the Court held, the time runs from the
last act. See also Bass v. Joliet Public School District No. 86, 746
F.3d 835, 839–40 (7th Cir. 2014); Turley v. Rednour, 729 F.3d
645, 654–55 (7th Cir. 2013) (concurring opinion).
Plaintiffs allege discrete acts, not conduct that became
wrongful only when repeated. Each episode of torture is a
completed wrong, so each carries its own period of limita-‐‑
tions. See also United States v. Kubrick, 444 U.S. 111 (1979),
which states the normal federal rule that a claim accrues as
soon as a person knows both the fact and the cause of an in-‐‑
jury. Federal rather than state law governs the accrual date
of a claim under §1983. See Wallace, 549 U.S. at 388. Anyway,
No. 13-‐‑3301 5

even before Morgan plaintiffs could not have invoked a “con-‐‑
tinuing violation doctrine,” because Burge and the other de-‐‑
fendants did not torture any of the five plaintiffs repeatedly,
over spans of years. What plaintiffs want to do is tack differ-‐‑
ent victims’ periods of limitations together, so that if, say,
police tortured Freeman in 2004 (as he alleges), then Burton,
who was tortured in 1989 and whose time to sue had ex-‐‑
pired in 1991, would have his claim revived and be allowed
another two years in which to sue. Plaintiffs do not cite any
decision holding that fresh misconduct with respect to one
person allows a different person extra time to sue. Each inju-‐‑
ry starts a victim-‐‑specific period of limitations. (In calling
plaintiffs victims, and saying that they were tortured, we ac-‐‑
cept the complaint’s allegations, which have not been put to
the test and may or may not be true.)
Alleging a common motive or conspiracy does not avoid
Morgan. The Supreme Court demonstrated this in Lewis v.
Chicago, 560 U.S. 205 (2010). A city administered an em-‐‑
ployment test that produced a list with disparate impact on
minority applicants, then hired from the list in multiple
waves over several years. This court concluded that a single
period of limitations applies to everyone hired, or not hired,
from the list, but the Supreme Court concluded that each
applicant has a separate claim that accrues when he, in par-‐‑
ticular, was not hired. The existence of one practice affecting
multiple applicants did not imply a single accrual date, the
Court held, when each non-‐‑hire is a discrete act. That ap-‐‑
proach is equally applicable here. (The fact that all defend-‐‑
ants are state actors is another reason why a claim of con-‐‑
spiracy is unhelpful. See Fairley v. Andrews, 578 F.3d 518, 526
(7th Cir. 2009).)
6 No. 13-‐‑3301

Plaintiffs have a fallback position. They maintain that eq-‐‑
uitable tolling excuses the belated litigation. Illinois law
supplies the statute of limitations, and state tolling rules
govern when state law supplies the period of limitations.
Shropshear v. Corporation Counsel of Chicago, 275 F.3d 593,
595–96 (7th Cir. 2001). Under Illinois law a person who in-‐‑
vokes a tolling doctrine must show that he pursued his
rights diligently. See Clay v. Kuhl, 189 Ill. 2d 603, 614 (2000);
Williams v. Board of Review, 241 Ill. 2d 352, 372 (2011).
Plaintiffs have not been diligent in pursuit of their rights.
Jones took almost 30 years to sue, Burton took 23, Dungey
13, Tillis 10, and Freeman 8. All five plaintiffs knew from the
day they were subjected to torture that they had been in-‐‑
jured, and by whom. Failure to appreciate that an act is
wrongful does not defer the claim’s accrual (that’s the hold-‐‑
ing of Kubrick); anyway, none of the plaintiffs could have
been in doubt on that score. No one thinks that torture dur-‐‑
ing interrogation is lawful.
Instead of contending that the traditional criteria for eq-‐‑
uitable tolling apply, plaintiffs maintain that delay should be
excused because they are confident that, had they sued earli-‐‑
er, they would have lost. They assert that Burge and other
officers would have committed perjury at trial and that ju-‐‑
rors would have believed the defendants. Until Burge’s
criminal conviction (June 28, 2010) litigation would have
been pointless, plaintiffs maintain. That is questionable. Re-‐‑
ports of Burge’s misconduct were circulating publicly by
1990. One opinion called this “common knowledge” by the
mid-‐‑1990s. United States ex rel. Maxwell v. Gilmore, 37 F. Supp.
2d 1078, 1094 (N.D. Ill. 1999). Burge was suspended in 1991
after his supervisors concluded that he had tortured sus-‐‑
No. 13-‐‑3301 7

pects. His name first appeared in this circuit’s opinions in
1993, the year the Police Department fired him, when we re-‐‑
ported that a jury had found that he violated suspects’
rights. Wilson v. Chicago, 6 F.3d 1233 (7th Cir. 1993). In 2006 a
Special State’s Attorney released a report stating that Burge
and his colleagues had engaged in systematic torture of sus-‐‑
pects. See People v. Wrice, 2012 IL 111860 ¶¶41–43 (S. Ct. Ill.)
(recounting the report’s conclusions). And plaintiffs
acknowledge that before Burge’s conviction at least 10 of his
victims succeeded in obtaining damages, in amounts as high
as $14.8 million.
Victims of injury are not entitled to decide for themselves
that suit would be futile and to grant themselves extra years,
if not decades, in which to pursue litigation. They must file
suit and try. If the worst occurs—if the defendants commit
perjury and pull the wool over the eyes of judges and jurors
alike—then plaintiffs will lose. But the worst may not come
to pass. As the preceding paragraph shows, judges and ju-‐‑
rors have been onto Burge for some time. Suppose, however,
that a dissembling defendant persuades jurors to find in his
favor. If later developments show that the court has been de-‐‑
ceived, a district judge has discretion to reopen the proceed-‐‑
ings under Fed. R. Civ. P. 60(b)(3) if fraud on the court is un-‐‑
covered within a year, or 60(b)(6) if information discovered
later makes it inequitable to allow the judgment to stand. In-‐‑
deed, Rule 60(d)(3) provides that every district court is enti-‐‑
tled, independent of Rule 60(b), to “set aside a judgment for
fraud on the court” no matter when the fraud comes to light.
Although simple perjury does not allow relief under Rule
60(d)(3), see In re Golf 255, Inc., 652 F.3d 806, 809 (7th Cir.
2011), a cooperative endeavor by multiple police officers and
8 No. 13-‐‑3301

their lawyers to suppress the truth might do so; that we need
not decide.
Instead of trying, plaintiffs waited on the sidelines hop-‐‑
ing that the acts of others would tarnish Burge’s reputation
and make a suit easier to win. That is not the sort of dili-‐‑
gence required to establish equitable tolling.
AFFIRMED