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 SEPTEMBER 24, 2019 — DECIDED JANUARY 7, 2020

Before WOOD, Chief Judge, and EASTERBROOK, KANNE,
ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN, SCUDDER and
ST. EVE, Circuit Judges.*

*
Judge Flaum took no part in the decision to consider this case en banc,
(continued...)
2 No. 17-3543

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
governor of Illinois pardoned Savory. Within two years of 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 found that the claims
accrued more than five years before Savory filed suit, when he
was released from custody and could no longer challenge his
conviction in habeas corpus proceedings. Because the statute
of limitations on his claims is two years, the district court
dismissed the suit as untimely. Savory appealed to this court,
and the panel reversed and remanded after concluding that the
claim was timely under Heck v. Humphrey, 512 U.S. 477 (1994),
because it accrued at the time of Savory’s pardon, within the
two-year limitations period. We granted the defendants’
petition for rehearing en banc and vacated the panel’s opinion
and judgment. We again conclude that Heck controls the
outcome here, and we reverse and remand for further proceed-
ings.
I.
In reviewing a grant of a motion to dismiss, we are required
to assume that the facts alleged in the complaint are true, but
we offer no opinion on the ultimate merits because further
development of the record may cast the facts in a light different

*
(...continued)
nor in this court's subsequent en banc consideration and disposition.
No. 17-3543 3

from the complaint. Dobbey v. Illinois Dep’t of Corr., 574 F.3d
443, 444, 447 (7th Cir. 2009). See also Tobey v. Chibucos, 890 F.3d
634, 645 (7th Cir. 2018) (on a motion to dismiss, a court must
accept as true the well-pleaded factual allegations in the
complaint). 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 the complaint, these
officers subjected Savory to an abusive thirty-one hour
interrogation over a two-day period. The officers fabricated
evidence, wrongfully coerced a false confession from the teen,
suppressed and destroyed evidence that would have exoner-
ated him, fabricated incriminating statements from alleged
witnesses, and ignored ample evidence pointing to other
suspects. No legitimate evidence implicated Savory. His arrest,
prosecution 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
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 pardoned
4 No. 17-3543

Savory of the crime of murder,1 and declared that Savory was
“acquitted and discharged of and from all further imprison-
ment and restored to all the rights of citizenship which may
have been forfeited by the conviction.” The pardon was
granted with an “Order Permitting Expungement Under The
Provisions Of 20 ILCS 2630/5.2(e).” R. 71-3. 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;2

1
The governor simultaneously pardoned Savory of the crime of possessing
contraband in a penal institution, a crime for which he was convicted in
1994.

2
Savory acknowledged that, at the time of filing his complaint, our circuit
law held that a “so-called federal malicious prosecution claim” was not
actionable under section 1983. R. 1, at 20 n.1. He nevertheless pled Count III
under the Fourth and Fourteenth Amendments in order to preserve it
pending the outcome of the Supreme Court’s consideration of Manuel v.
City of Joliet, Ill., 590 F. App’x 641 (7th Cir. 2017). The Court subsequently
held that “the Fourth Amendment governs a claim for unlawful pretrial
detention even beyond the start of legal process.” See Manuel v. City of Joliet,
Ill., 137 S. Ct. 911, 920 (2017). The Court remanded the case for consideration
(continued...)
No. 17-3543 5

(4) deprived Savory of his right to a fair trial, his right not to be
wrongfully convicted, and his right to be free of involuntary
confinement and servitude in violation of 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 defendants but later conceded that those claims

2
(...continued)
of the elements of the claim and the accrual date. Acknowledging that
courts are to look first to the common law of torts in defining the contours
and prerequisites of a section 1983 claim, the Court declined to resolve the
dispute between the parties as to the most analogous common-law tort. The
Court also noted that common-law principles guide rather than control the
definition of section 1983 claims, and that “[i]n applying, selecting among,
or adjusting common-law approaches, courts must closely attend to the
values and purposes of the constitutional right at issue.” 137 S. Ct. at 921.
Manuel argued that the claim resembled malicious prosecution and the
defendant likened the claim to false arrest. We subsequently held that the
nature of Manuel’s claim was detention without probable cause, even
though Manuel was being held by authority of a judicial decision that
probable cause existed. Manuel had asserted that the police hoodwinked
the judge by falsely asserting that pills he possessed contained unlawful
substances. Manuel was released the day after the prosecutor dropped the
charges. Because his detention was judicially authorized, we invoked the
holdings of Preiser v. Rodriguez, 411 U.S. 475 (1973), and Heck, and held that
the claim would accrue when the detention ended. Manuel v. City of Joliet,
Ill., 903 F.3d 667, 670 (7th Cir. 2018). In Savory’s case, the district court did
not separately analyze the accrual date for Count III. Now that the Supreme
Court has resolved Manuel, the accrual date for Count III should be
considered on remand.
6 No. 17-3543

were untimely under the state’s one-year statute of limitations.
Those claims are not part of this appeal.
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 governor on January 12, 2015, rendering 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).
For a section 1983 claim, federal courts look to state law for the
length of the limitations period. McDonough v. Smith, 139 S. Ct.
2149, 2155 (2019). See also Owens v. Okure, 488 U.S. 235, 249–50
(1989) (“where state law provides multiple statutes of limita-
tions for personal injury actions, courts considering § 1983
claims should borrow the general or residual statute for
personal injury actions”). In Illinois, the applicable limitations
No. 17-3543 7

period is two years. Tobey, 890 F.3d at 645. However, the
“accrual date of a § 1983 cause of action is a question of federal
law that is not resolved by reference to state law.” Wallace v.
Kato, 549 U.S. 384, 388 (2007) (emphasis in original). Instead,
certain aspects of section 1983 claims, including accrual dates,
are “governed by federal rules conforming in general to
common-law tort principles.” Id. Under those common-law tort
principles, claims accrue when a plaintiff has a complete and
present cause of action. Id.; McDonough, 139 S. Ct. at 2155. So
we must determine the first moment at which Savory had a
complete and present cause of action.
A.
We begin our analysis of the accrual date for Savory’s
claims with Heck, which 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 knowingly destroyed exculpatory evidence, and that they
caused an 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. The Court had first
considered the potential overlap between these two statutes in
Preiser, and held then “that habeas corpus is the exclusive
remedy for a state prisoner who challenges the fact or duration
8 No. 17-3543

of his confinement and seeks immediate or speedier release,
even though such a claim may come within the literal terms of
§ 1983.” Heck, 512 U.S. at 481 (citing Preiser, 411 U.S. at 488–90).
Heck, however, was not seeking immediate or speedier release,
but monetary damages, and so his claim was not covered by
the holding of Preiser. Section 1983 created “a species of tort
liability,” and so in determining whether there were any bars
to Heck’s suit, the Court turned first to the common law of
torts. Heck, 512 U.S. at 481, 483.
Heck’s section 1983 claim most closely resembled the
common-law tort of malicious prosecution, which allows
damages for confinement imposed pursuant to legal process,
including compensation for arrest and imprisonment, discom-
fort or injury to health, and loss of time and deprivation of
society. Heck, 512 U.S. at 484. See also McDonough, 139 S. Ct. at
2156 (finding that the plaintiff’s section 1983 fabricated-
evidence claim most closely resembled the tort of malicious
prosecution). “One element that must be alleged and proved
in a malicious prosecution action is termination of the prior
criminal proceeding in favor of the accused.” Heck, 512 U.S. at
484. This requirement avoids creating two conflicting resolu-
tions arising out of the same transaction—an extant, enforce-
able criminal conviction on the one hand, and a civil judgment
implying the invalidity of that conviction on the other—and
steers clear of parallel litigation over the issue of guilt. The
requirement also prevents a convicted criminal from collater-
ally attacking the conviction through a civil suit:
We think the hoary principle that civil tort actions
are not appropriate vehicles for challenging the
validity of outstanding criminal judgments applies
No. 17-3543 9

to § 1983 damages actions that necessarily require
the plaintiff to prove the unlawfulness of his convic-
tion or confinement, just as it has always applied to
actions for malicious prosecution.
We hold that, in order to recover damages for
allegedly unconstitutional conviction or imprison-
ment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the convic-
tion or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a
state tribunal authorized to make such determina-
tion, 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
conviction or sentence that has not been so invali-
dated 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 success-
ful, will not demonstrate the invalidity of any out-
standing criminal judgment against the plaintiff, the
10 No. 17-3543

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:
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.
The Supreme Court has reaffirmed the Heck framework
several times. See Wallace, 549 U.S. at 393 (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.”) (emphasis in
original); Nelson v. Campbell, 541 U.S. 637, 646 (2004) (citing
No. 17-3543 11

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, challenge to his conviction or sen-
tence”); Edwards v. Balisok, 520 U.S. 641, 643, 645–48 (1997)
(reaffirming the holding of Heck and extending it to claims
challenging prison disciplinary proceedings that implicate the
length of a prisoner’s sentence). The Court most recently
revisited Heck in McDonough v. Smith, 139 S. Ct. 2149 (2019).
There, the Court held that a section 1983 claim for fabricating
evidence in a criminal prosecution accrued upon acquittal, and
not when the prosecutor’s knowing use of the fabricated
evidence first caused some deprivation of liberty for the
plaintiff. 139 S. Ct. at 2153–54.
The plaintiff in McDonough alleged that the prosecutor
fabricated evidence in order to inculpate him, including
falsifying affidavits, coaching witnesses to lie, and orchestrat-
ing a suspect DNA analysis to link McDonough to the crime.
The prosecutor brought criminal charges against McDonough
and presented the fabricated evidence at a trial which ended in
a mistrial. The same prosecutor then retried McDonough,
again presenting the fabricated evidence. The second trial
resulted in an acquittal. McDonough asserted two claims in his
section 1983 action, one for malicious prosecution and one for
fabricated evidence. The district court dismissed the malicious
prosecution claim as barred by prosecutorial immunity, and
dismissed the fabricated evidence claim as untimely, finding
that the claim accrued when the fabricated evidence was used
12 No. 17-3543

against McDonough. The court of appeals affirmed, finding
that McDonough had a complete fabricated-evidence claim as
soon as he could show that the prosecutor’s knowing use of
fabricated evidence caused him some deprivation of liberty.
Relying on Heck and its progeny, the Supreme Court reversed,
concluding:
The statute of limitations for a fabricated-evidence
claim like McDonough’s does not begin to run until
the criminal proceedings against the defendant (i.e.,
the § 1983 plaintiff) have terminated in his favor.
This conclusion follows both from the rule for the
most natural common-law analogy (the tort of
malicious prosecution) and from the practical
considerations that have previously led this Court to
defer accrual of claims that would otherwise consti-
tute an untenable collateral attack on a criminal
judgment.
139 S. Ct. at 2154–55. In McDonough’s case, favorable termina-
tion occurred at acquittal after the second trial.3

3
Savory argued in supplemental briefing that this holding in McDonough
calls into question the continued validity of Johnson v. Winstead, 900 F.3d 428
(7th Cir. 2018). McDonough addressed claim accrual in the context of a trial
resulting in mistrial, followed by retrial resulting in acquittal. Johnson
addressed claim accrual in the context of a trial resulting in a conviction,
followed by reversal on appeal, then retrial resulting in a second conviction,
followed again by reversal on appeal. McDonough concluded that the claim
accrued only at the resolution of the second trial. Johnson allowed for two
accrual dates, one at favorable termination of the first trial (in the form of
the appellate reversal) and the second at favorable termination of the
(continued...)
No. 17-3543 13

The Court began the accrual analysis by identifying the
specific constitutional right that had been infringed, a due
process right not to be deprived of liberty as a result of the
fabrication of evidence by a government officer. McDonough,
139 S. Ct. at 2155; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 920
(2017). Noting its frequent practice of deciding accrual issues
by reference to common-law principles governing analogous
torts, the Court concluded that the most analogous common-
law tort for McDonough’s fabricated-evidence claim was
malicious prosecution.4 See Heck, 512 U.S. at 484. Following that
analogy, the Court concluded that McDonough could not bring
his section 1983 fabricated evidence claim prior to the favor-

3
(...continued)
second trial (again in the form of reversal on appeal). Savory asks this court
to resolve the seeming inconsistency by finding that there is only one
accrual date in a single criminal case with a retrial. To the extent that it is
necessary to reconsider Johnson, we conclude that the more prudent course
is to allow the district court to consider in the first instance, after full
briefing from both the plaintiff and the defendants, whether and how
McDonough affects Johnson.

4
Savory also argued in supplemental briefing that we should overrule
Manuel v. City of Joliet, Ill., 903 F.3d 667 (7th Cir. 2018), to the extent that
opinion rejected analogies to common-law torts in section 1983 actions.
Savory contends that McDonough dictates–contrary to our 2018 Manuel
opinion–that his claim for unlawful detention after legal process accrued at
the same time as all of his other claims, specifically at the time of his
pardon. We again conclude that, to the extent that it is necessary to consider
this argument, the prudent course of action is for Savory to raise these
issues first in the district court, where, with the benefit of full briefing, the
court may consider in the first instance whether and how McDonough affects
our 2018 decision in Manuel.
14 No. 17-3543

able termination of his prosecution. McDonough, 139 S. Ct. at
2156. Citing Heck, Preiser, 411 U.S. at 490, and Younger v. Harris,
401 U.S. 37, 43 (1971), the Court reiterated the rationales
underlying the favorable-termination rule:
[The] favorable-termination requirement is rooted in
pragmatic concerns with avoiding parallel criminal
and civil litigation over the same subject matter and
the related possibility of conflicting civil and crimi-
nal judgments. … The requirement likewise avoids
allowing collateral attacks on criminal judgments
through civil litigation. … These concerns track
similar concerns for finality and consistency that
have motivated this Court to refrain from multiply-
ing avenues for collateral attack on criminal judg-
ments through civil tort vehicles such as § 1983.
McDonough, 139 S. Ct. at 2156–57 (internal citations and
quotation marks omitted). Although Heck involved a plaintiff
who had been convicted rather than a plaintiff who was
acquitted, the Court found that:
the pragmatic considerations discussed in Heck
apply generally to civil suits within the domain of
habeas corpus, not only to those that challenge
convictions. See Preiser, 411 U.S. at 490–491, 93 S.Ct.
1827. The principles and reasoning of Heck thus
point toward a corollary result here: There is not “ ‘a
complete and present cause of action,’ ” Wallace, 549
U.S. at 388, 127 S.Ct. 1091, to bring a
fabricated-evidence challenge to criminal proceed-
ings while those criminal proceedings are ongoing.
No. 17-3543 15

Only once the criminal proceeding has ended in the
defendant’s favor, or a resulting conviction has been
invalidated within the meaning of Heck, see 512 U.S.
at 486–487, 114 S.Ct. 2364, will the statute of limita-
tions begin to run.
McDonough, 139 S. Ct. at 2158.
B.
Applying the analytical paradigm of Heck and McDonough
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 malicious 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 conviction.
There is no logical way to reconcile those claims with a valid
conviction. Therefore, Heck supplies the rule for accrual of the
claim. Because Savory’s claims “would necessarily imply the
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.5 Gilbert v. Cook, 512 F.3d

5
At oral argument for the en banc rehearing, counsel for the defendants
took the position that Savory’s pardon was not a favorable termination
(continued...)
16 No. 17-3543

899, 900 (7th Cir. 2008) (“the plaintiff in an action under 42
U.S.C. § 1983 may not pursue a claim for relief that implies the
invalidity of a criminal conviction, unless that conviction has
been set aside by appeal, collateral review, or pardon.”). 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 proceedings.
McDonough supports the same result. Because McDonough
(who was not held in custody during his trials) was acquitted
rather than convicted, his section 1983 claim would not have
infringed upon the exclusivity of the habeas corpus remedy.
The Court nevertheless indicated that the other concerns
discussed in Heck still guided the outcome, and no section 1983
claim could proceed until the criminal proceeding ended in the
defendant’s favor or the resulting conviction was invalidated
within the meaning of Heck. So too with Savory. Although his
sentence had been served and habeas relief was no longer
available to him (and thus habeas exclusivity was not at issue),
the other considerations raised in Heck controlled the outcome:
he had no complete cause of action until he received a favor-
able termination of his conviction, which occurred when the
governor issued a pardon for the subject conviction.

5
(...continued)
because it was a general pardon rather than a pardon based on innocence.
As we will discuss below, Savory’s pardon does operate as a favorable
termination for the purposes of the Heck analysis.
No. 17-3543 17

C.
The defendants here contend that Savory’s federal claims
accrued when he was released from state custody in 2011, even
though his conviction remained intact. The rule urged by the
defendants would result in claims being dead on arrival in
virtually all section 1983 suits brought in relation to extant
convictions. “Congress has specifically required all federal
courts to give preclusive effect to state–court judgments
whenever the courts of the State from which the judgments
emerged would do so[.]” Allen v. McCurry, 449 U.S. 90, 96
(1980). See 28 U.S.C. § 1738 (judicial proceedings of any court
of any State “shall have the same full faith and credit in every
court within the United States and its Territories and Posses-
sions as they have by law or usage in the courts of such State”).
In Allen, the Supreme Court considered “whether the rules of
res judicata and collateral estoppel are generally applicable to
§ 1983 actions.”6 449 U.S. at 96. The Court concluded that the
usual rules of preclusion apply in section 1983 actions. 449 U.S.
at 103–05. Federal courts apply the preclusion law of the state
where the judgment was rendered, so long as the state in
question satisfies the applicable requirements of the Due
Process Clause. Kremer v. Chemical Constr. Corp., 456 U.S. 461,
481–82 (1982). The Heck bar accounts for the preclusive effect

6
Under res judicata, also known as claim preclusion, “a final judgment on
the merits of an action precludes the parties or their privies from relitigating
issues that were or could have been raised in that action.” Allen, 449 U.S. at
94. Under collateral estoppel, also known as issue preclusion, “once a court
has decided an issue of fact or law necessary to its judgment, that decision
may preclude relitigation of the issue in a suit on a different cause of action
involving a party to the first case.” Id.
18 No. 17-3543

of state court criminal judgments on civil litigation by lifting
the bar only when the plaintiff has achieved a favorable
termination of the criminal proceeding. See Morgan v. Schott,
914 F.3d 1115, 1120 (7th Cir. 2019) (the Heck rule is a version of
issue preclusion under which the outstanding criminal
judgment or disciplinary sanction, as long as it stands, blocks
any inconsistent civil judgment). Under the defendants’ rule,
a section 1983 claim would accrue on release from custody
even though the conviction remained intact, and even though
preclusion rules would effectively prevent the plaintiff from
bringing any claim inconsistent with the original criminal
conviction. Claimants like Savory, who obtained a pardon
several years after release from custody and who may have the
most meritorious claims, would be too late. Nothing in Heck
requires such a result.
D.
Although a straight-forward reading of Heck and its
progeny (including McDonough) determines the outcome here,
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.
Several of our post-Heck cases contain dicta or rely on reason-
ing that is in conflict with Heck and McDonough, and we must
address and clarify those cases as well.
1.
The misunderstanding that led to the erroneous result in
the district court here originated in a concurrence in Heck filed
by Justice Souter and joined by Justices Blackmun, Stevens and
No. 17-3543 19

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. Ulti-
mately, Justice Souter suggested a slightly different rule that he
submitted would avoid any collision between section 1983 and
the habeas statute:
A state prisoner may seek federal-court § 1983
damages for unconstitutional conviction or confine-
ment, 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 challenging 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
20 No. 17-3543

cannot first obtain a favorable state ruling. The
reason, of course, is that individuals not “in cus-
tody” cannot invoke federal habeas jurisdiction, the
only statutory mechanism besides § 1983 by which
individuals may sue state officials in federal court
for violating federal rights. That would be an unto-
ward result.
Heck, 512 U.S. at 500 (Souter, J., concurring).
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 outstand-
ing 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
longstanding and deeply rooted feature of both the
common law and our own jurisprudence—is not
rendered inapplicable by the fortuity that a con-
victed criminal is no longer incarcerated.
Heck, 512 U.S. at 490 n.10 (citations omitted). The Court thus
expressly rejected a rule tied to the end of custody. In that
No. 17-3543 21

same footnote, the Court also dismissed the notion that section
1983 must be interpreted in a manner that provides a remedy
for all conceivable invasions of federal rights. Id. See also Allen,
449 U.S. at 103–04 (inability to obtain federal habeas corpus
relief upon a Fourth Amendment claim does not render the
doctrine of collateral estoppel inapplicable to a section 1983
suit on that same claim). In other words, there is not always a
section 1983 remedy for every constitutional wrong. See San
Remo Hotel, L.P. v. City and Cty. of San Francisco, 545 U.S. 323,
342 (2005) (issues actually decided in valid state-court judg-
ments may well deprive plaintiffs of the right to have their
federal claims re-litigated in federal court). In Allen, for
example, the Court made clear that an inability to pursue relief
through the habeas statute would not relieve a section 1983
claimant of the preclusive effect of a state court judgment
where the claimant had a full and fair opportunity to litigate
the issue in state court. Allen, 449 U.S. at 102–05.
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 favorable-termination requirement
that it would be impossible as a matter of law for him to
satisfy.”7 Justice Ginsburg, who had been in the majority in

7
In Savory’s case, of course, it was not impossible as a matter of law to
satisfy the favorable-termination rule even though he had fully served his
sentence and lacked access to habeas corpus. Savory sought and received
(continued...)
22 No. 17-3543

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. See Agostini v. Felton, 521 U.S.
203, 217, 238 (1997) (the views of five concurring Justices that
a case should be reconsidered or overruled cannot be said to
have effected a change in the law when the propriety of that
case was not before the Court; instead, the case controls until
the Court reinterprets and overrules the binding precedent);
Cross v. United States, 892 F.3d 288, 303 (7th Cir. 2018) (“Unless
and until a majority of the Court overrules the majority

7
(...continued)
an executive pardon. Illinois also provides a statutory remedy allowing
petitioners to seek relief from final judgments in certain circumstances. See
735 ILCS 5/2-1401.
No. 17-3543 23

opinions in [two prior cases], they 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) (noting that members of the Court
had expressed the view that “unavailability of habeas for other
reasons may also dispense with the Heck requirement” but
indicating that “[t]his case is no occasion to settle the issue.”).
The defendants also assert that footnote 10 of Heck (which
specifically rejected Justice Souter’s proposed rule) was dicta,
and therefore does not control the outcome here. The plaintiff
in Heck, they note, was incarcerated and allowing a section
1983 suit during incarceration would have permitted an end-
run around the habeas corpus statute. No such concern is
present, they argue, in the scenario addressed in footnote 10 of
Heck, specifically, persons who are no longer in custody and
cannot bring habeas challenges. But Heck was concerned with
more than the exclusivity of the habeas corpus remedy for
persons in custody, or the intersection between habeas corpus
and section 1983. The favorable termination rule in Heck also
rested on concerns arising generally from collateral attacks on
extant criminal convictions through civil law suits. Specifically,
requiring a section 1983 plaintiff to prove favorable termina-
tion of the criminal conviction avoids parallel litigation over
the issues of probable cause and guilt, and precludes the
24 No. 17-3543

possibility that a plaintiff might succeed in a civil tort action
after having been convicted in the underlying criminal prose-
cution, allowing the creation of conflicting judgments arising
out of the same transaction. Heck, 512 U.S. at 485–86. These
concerns were repeated recently in McDonough as rationales
supporting the application of Heck’s favorable termination rule
in a case that did not implicate concerns about habeas corpus.
Because the plaintiff had been acquitted rather than convicted,
there was little likelihood of a collision between habeas corpus
and section 1983. Yet the Court cited the continued relevance
of the favorable-termination rule as being “rooted in pragmatic
concerns with avoiding parallel criminal and civil litigation
over the same subject matter and the related possibility of
conflicting civil and criminal judgments.” McDonough, 139
S. Ct. at 2156–57. In further support of the favorable termina-
tion rule, the Court also cited related concerns for finality,
consistency, and the avoidance of unnecessary friction between
the state and federal court systems. 139 S. Ct. at 2157. Although
footnote 10 of Heck addressed a factual scenario that was not
before the Court, to dismiss all of footnote 10 as dicta is to
divorce a significant part of the Court’s rationale from its
holding. The Court was simply making clear how broadly it
intended its holding to apply.
2.
The defendants also asserted below and argued on appeal
that this court has abrogated the rule in Heck, citing five 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); Whitfield v. Howard, 852 F.3d 656 (7th Cir. 2017); and
Sanchez v. City of Chicago, 880 F.3d 349 (7th Cir. 2018). Accord-
No. 17-3543 25

ing 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 standing conviction without first
satisfying the favorable termination rule of Heck.” Brief of
Defendants-Appellees (hereafter “Defendants’ Brief”), at 7–8.
As we just explained, however, this court may not on its own
initiative overturn decisions of the Supreme Court. Although
four of those five cases came to correct resolutions, some of our
language and reasoning has created confusion regarding the
applicability of Heck in cases where habeas relief is not avail-
able. Indeed, it was on these cases that the district court relied
in concluding that Savory had brought his claims too late. The
confusion began in DeWalt, an opinion that had been circulated
to the full court under Circuit Rule 40(e). DeWalt, 224 F.3d at
618 n.6 (noting that no judge in active service favored rehear-
ing en banc).
a.
In DeWalt, we considered whether a prisoner could bring
a section 1983 claim related to the loss of his prison job when
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, the
loss of his prison job—making a section 1983 claim the appro-
priate 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
26 No. 17-3543

prison disciplinary action.” 224 F.3d at 618. We discussed the
minority views in Spencer and Heck in the context of answering
a then-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
likewise concluding that because Muhammad’s claim did not
seek a judgment at odds with his conviction or with the state’s
calculation of time to be served, Heck’s favorable-termination
requirement was inapplicable). We reaffirm DeWalt’s basic
holding today: a section 1983 complaint that challenges a
disciplinary sanction related only to the conditions of confine-
ment and that does not implicate the validity of the underlying
conviction or the duration of the sentence (e.g. loss of good
time credits) is not subject to Heck’s favorable termination
requirement. See also Muhammad, 540 U.S. at 754–55.
But part of the reasoning and language of DeWalt went
further than that and implied that, in all cases where habeas
relief is unavailable, then section 1983 must provide an avenue
of relief. See DeWalt, 224 F.3d at 617 (“Because federal habeas
relief is not available to Mr. DeWalt, the language of § 1983 and
the Court's decision in Preiser dictate that he be able to proceed
No. 17-3543 27

on his § 1983 action.”).8 This language suggesting that a section
1983 remedy must be available when habeas relief is unavail-
able is in conflict with footnote 10 of Heck and with our holding
today. Moreover, it was unnecessary to the holding in DeWalt,
and we now disavow that language.
In DeWalt, we also overruled our prior decisions in Ander-
son v. County of Montgomery, 111 F.3d 494 (7th Cir. 1997), and
Stone-Bey v. Barnes, 120 F.3d 718 (7th Cir. 1997), to the extent
that they applied the rule in Heck to situations in which habeas
relief was not available:
We are aware that our decisions in Anderson v.
County of Montgomery, 111 F.3d 494 (7th Cir.1997),
and Stone–Bey v. Barnes, 120 F.3d 718 (7th Cir. 1997),
precluded plaintiffs from pursuing § 1983 actions
when federal habeas was not available or when the
prisoner had not first availed himself of that option.
However, we note that both of these cases preceded
Spencer. Indeed, our more recent cases have ques-
tioned the viability of Anderson and Stone–Bey in
light of the Justices’ reluctance to apply the Heck rule
to situations in which habeas relief is not available.
See Hoard v. Reddy, 175 F.3d 531, 533 (7th Cir.)

8
Preiser held that a section 1983 action “is a proper remedy for a state
prisoner who is making a constitutional challenge to the conditions of his
prison life, but not to the fact or length of his custody.” Preiser v. Rodriguez,
411 U.S. 475, 499 (1973). Muhammad then later clarified that Heck does not
apply to prison disciplinary suits related only to conditions of confinement
when those suits do not raise any implication about the validity of the
conviction or the length of the sentence. 540 U.S. at 754–55.
28 No. 17-3543

(“[T]here is probably an exception to the rule of Heck
for cases in which no route other than a damages
action under section 1983 is open to the person to
challenge his conviction.”), cert. denied, 528 U.S. 970,
120 S.Ct. 411, 145 L.Ed.2d 320 (1999); Carr v. O'Leary,
167 F.3d 1124, 1127 (7th Cir.1999) (“With Carr
unable to get the disciplinary sanction reversed, five
Justices would not consider the sanction a bar to a
section 1983 suit even though that suit calls into
question the validity of the sanction.”); Sylvester v.
Hanks, 140 F.3d 713, 714 (7th Cir.1998) (questioning
whether Heck would preclude a § 1983 action to
review placement in segregation given that “few
states afford collateral review of prison disciplinary
hearings”). Our decision today necessitates that we
overrule Anderson and Stone–Bey to the extent they
take the contrary position.
DeWalt, 224 F.3d at 617–18.
It was appropriate to overrule Stone-Bey, but not for the
reason that we stated in DeWalt. Stone-Bey involved a pris-
oner’s section 1983 challenge to conditions of confinement
alone. In determining whether the Heck bar applied to his
claim, we considered whether it made “any difference in
applying Heck that the sentence imposed was one of disciplin-
ary segregation alone, as opposed to segregation coupled with
a loss of good-time credits,” and erroneously concluded that it
did not. 120 F.3d at 721. We then applied Heck’s favorable
termination rule and barred the prisoner’s claim even though
it did not implicate the validity of his conviction or sentence.
That holding conflicts with Muhammad. Stone-Bey was in error
No. 17-3543 29

but not because, as DeWalt stated, section 1983 must be
available when habeas is not. 224 F.3d at 617. Instead, the
holding in Stone-Bey was incorrect because Heck does not apply
to conditions-of-confinement claims that do not implicate the
validity of the underlying conviction or the length of custody.
There was no need to overrule Anderson. Anderson filed a
section 1983 action that challenged the validity of his extant
conviction, a claim that normally would be barred by Heck
unless and until the plaintiff obtained a favorable termination
of that underlying conviction. 111 F.3d at 498–99. Anderson
argued that, because he had been released from prison and no
longer had access to habeas relief, he must have access to
section 1983. The Anderson panel rejected that contention for
two reasons: first, Anderson was on “conditional release,” a
form of parole that likely meant he did retain access to habeas
as a means of challenging his conviction. Second, Heck had
rejected in footnote 10 the very argument which Anderson
raised. We noted that, even if footnote 10 was dicta, the
favorable termination rule of Heck also applied to persons no
longer in custody because it was an element of the analogous
common-law tort claim on which the section 1983 claim was
based. That analysis was perfectly consistent with Heck and
with our holding today.
b.
Simpson similarly addressed a claim by a prisoner related
to disciplinary segregation and loss of recreation privileges.
Because the claim related to conditions of confinement rather
than to the lawfulness of a conviction or duration of confine-
ment, we held that Heck’s favorable termination rule did not
30 No. 17-3543

apply, reversing the district court’s decision to the contrary.
450 F.3d at 306–07 (citing Muhammad, 540 U.S. at 754–55). That
holding of Simpson is correct. But we also asserted that Muham-
mad and DeWalt established that:
the doctrine of Heck and Edwards [v. Balisok] is
limited to prisoners who are “in custody” as a result
of the defendants’ challenged acts, and who there-
fore are able to seek collateral review. Take away the
possibility of collateral review and § 1983 becomes
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 (emphasis in original). This and
similar passages in Simpson cannot survive our decision today.
Heck did not lose its vitality because Simpson had been
released from custody. Instead, Heck did not apply because
Simpson’s conditions-of-confinement claim did not implicate
the validity of his conviction or the length of his sentence.
Muhammad in fact indicated that the Court had not yet had
an occasion to revisit the minority views expressed in Spencer:
Members of the Court have expressed the view that
unavailability of habeas for other reasons may also
dispense with the Heck requirement. See Heck v.
Humphrey, 512 U.S. 477, 491, 114 S.Ct. 2364, 129
L.Ed.2d 383 (1994) (SOUTER, J., concurring in
judgment); Spencer v. Kemna, 523 U.S. 1, 21–22, 118
S.Ct. 978, 140 L.Ed.2d 43 (1998) (GINSBURG, J.,
concurring). This case is no occasion to settle the
issue.
No. 17-3543 31

Muhammad, 540 U.S. at 752 n.2. Simpson read that footnote as
conceding that Heck left this issue open. But footnote 2 of
Muhammad merely acknowledged the possibility that the Court
may someday revisit footnote 10 of Heck. Because it has not yet
done so, we are bound by the holding and reasoning of Heck.
c.
Burd involved a section 1983 suit for damages, alleging that
prison officials deprived the plaintiff of access to the prison
library, which in turn prevented him from preparing a timely
motion to withdraw his guilty plea. Burd, 702 F.3d at 431. 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.” 702 F.3d at 435 (empha-
sis in original). That reasoning and holding was sound.
But in rejecting Burd’s alternate theory, we endorsed the
reasoning from DeWalt and Simpson that we now disavow. We
stated “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 (emphasis in original). We
added:
Permitting a plaintiff who ignored his opportunity
to seek collateral relief while incarcerated to skirt the
Heck bar simply by waiting to bring a § 1983 claim
until habeas is no longer available undermines Heck
and is a far cry from the concerns, as we understand
32 No. 17-3543

them, of the concurring Justices in Spencer for those
individuals who were precluded by a legal impedi-
ment from bringing an action for collateral relief.
702 F.3d at 436. Nothing in the record revealed any impedi-
ment to Burd seeking collateral relief while he was in custody.
We therefore:
join[ed] the Sixth and Ninth Circuits in holding that
Heck bars a § 1983 action where: (1) [a] favorable
judgment would necessarily call into question the
validity of the underlying conviction or sentence
and (2) the plaintiff could have pursued collateral
relief but failed to do so in a timely manner.
702 F.3d at 436. That statement should have ended after item
(1). The dicta of five Justices in Spencer did not overrule the
holding and reasoning of Heck, and a plaintiff’s failure to
pursue habeas relief when it was available is irrelevant to
whether the Heck bar applies. We repudiate that part of Burd
that gives any significance to whether the plaintiff lost access
to habeas relief through no fault of his own.
d.
The confusion that began in DeWalt, and that continued in
dicta in Simpson and Burd, eventually led to a result in Whitfield
v. Howard, 852 F.3d 656 (7th Cir. 2017), which was, in retro-
spect, incorrect. Although Whitfield was controlled by Edwards
v. Balisok, supra, rather than by Heck, we relied in part on dicta
from both Burd and Carr v. O’Leary, 167 F.3d 1124 (7th Cir.
1999), to conclude that a former prisoner could pursue a
section 1983 claim challenging prison disciplinary proceedings
No. 17-3543 33

that led to loss of good time credits without first obtaining a
favorable termination of those proceedings.
Whitfield sought damages under section 1983 for the
retaliatory revocation of good time credits. 852 F.3d at 659. He
pursued collateral review while he was in prison (albeit in a
manner we characterized 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.
Whitfield first nodded to the holding in Heck, noting that in
“section 1983 suits that did not directly seek immediate or
speedier release, but rather sought monetary damages that
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. We also noted
that Balisok extended the Heck bar to section 1983 suits brought
by prisoners challenging the outcome of prison disciplinary
34 No. 17-3543

proceedings in which the plaintiffs sought damages rather than
earlier release. Id. We then attempted to distinguish Balisok:
Had [Balisok] prevailed, the result of the disciplin-
ary proceeding would have to have been set aside.
Whitfield, in contrast, is arguing that the [disciplin-
ary] hearings should never have taken place at all,
because they were acts of retaliation for his exercise
of rights protected by the First Amendment. He has
no quarrel with the procedures used in the prison
disciplinary system. He could just as well be saying
that a prison official maliciously calculated an
improper release date, or “lost” the order authoriz-
ing his release in retaliation 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 prospec-
tive 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, we asserted,
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.
No. 17-3543 35

We found those factors distinguishing and allowed the
claims to proceed. But Whitfield’s circumstances were not truly
distinguishable from those of Balisok or Burd. A plaintiff’s
good-faith but unsuccessful pursuit of collateral relief does not
relieve him of Heck’s favorable termination requirement.
Because Whitfield had not yet obtained a favorable termination
of the disciplinary proceedings that led to a loss of good time
credit, he had no cognizable claim under section 1983. We must
therefore overrule our decision in Whitfield.
e.
That leaves Sanchez, the last case on which the defendants
relied. Sanchez brought section 1983 claims asserting wrongful
arrest and excessive force, claims that would not necessarily
imply the invalidity of his conviction, and so we noted cor-
rectly that Heck did not apply to those claims. 880 F.3d at 356.
See also Wallace, 549 U.S. at 389–91 (statute of limitations for a
claim for false arrest begins to run upon initiation of legal
process). But Sanchez also suggested that he was framed, a
claim that would imply the invalidity of his conviction. We
relied on Whitfield to find that “Heck does not bar a suit by a
plaintiff who is no longer in custody but who pursued a
collateral attack through appropriate channels while he was in
custody, even if such efforts were unavailing.” 880 F.3d at 356.
Because Sanchez sought post-conviction relief in state courts
before his release from custody, we concluded that Heck did
not apply. That reasoning does not survive our decision today.
But the final result in Sanchez is nevertheless correct, because
we went on to conclude that Sanchez’s claim that he was
framed was subject to issue preclusion, and so there was no
need to remand for a new trial. 880 F.3d at 358. See also Green
36 No. 17-3543

v. Junious, 937 F.3d 1009, 1014 (7th Cir. 2019) (noting that Heck
did not categorically bar the suit in Sanchez but the state
criminal judgment had preclusive effect under traditional
collateral-estoppel analysis).
E.
Our dissenting colleague urges the court to adopt an
accrual rule tied to the end of custody. A claim accrues when
a plaintiff has “a complete and present cause of action.”
McDonough, 139 S. Ct. at 2155; Wallace, 549 U.S. at 388; Bay Area
Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of
Cal., 522 U.S. 192, 201 (1997). When a section 1983 claim
resembles the common-law tort of malicious prosecution, the
Court treats favorable termination as an element of the claim.
McDonough, 139 S. Ct. at 2156-57; Heck, 512 U.S. at 484.
Without favorable termination, a plaintiff lacks “a complete
and present cause of action.” Yet the dissent’s rule would
require a plaintiff to file suit without this essential element of
the claim. See Heck, 512 U.S. at 489 (“deny[ing] the existence of
a cause of action” until favorable termination of the convic-
tion).
As a model for this rule, the dissent cites Poventud v. New
York, 715 F.3d 57 (2d Cir. 2013), a decision vacated by the en
banc Second Circuit.9 Poventud, in turn, relied on Jenkins v.
Haubert, 179 F.3d 19 (2d Cir. 1999), and Leather v. Eyck, 180 F.3d
420 (2d Cir. 1999). Jenkins, like DeWalt, correctly decided that

9
The en banc Second Circuit resolved the case on other grounds that have
no bearing on the circumstances that we address here. Poventud v. New York,
750 F.3d 121 (2d Cir. 2014).
No. 17-3543 37

the Heck bar does not apply in conditions-of-confinement cases
brought under section 1983. 179 F.3d at 27. Jenkins also in-
cluded dicta that suggested that a section 1983 remedy must be
available when habeas relief is not available. 179 F.3d at 27.
That language is virtually identical to the dicta in our own
cases that we disavow today. In Leather, the Second Circuit
relied on the dicta from Jenkins to conclude that a section 1983
plaintiff who was assessed a fine but was never in custody
could bring his claim even though his conviction was extant.
180 F.3d at 424. For the reasons we have discussed above, we
find none of these cases persuasive.
In requiring favorable termination before allowing a section
1983 claim to proceed, Heck sets a high standard. Undoubtedly,
as the dissent asserts, some valid claims will never make it past
the courthouse door. Heck explains, though, why a high bar
must be cleared before seeking damages in a civil action on
claims that imply the invalidity of a criminal conviction. The
Court sought to avoid parallel litigation on the issue of guilt,
preclude the possibility of conflicting resolutions arising out of
the same transaction, prevent collateral attacks on criminal
convictions through the vehicle of civil suits, and respect
concerns for comity, finality and consistency. Heck, 512 U.S. at
485–86. See also McDonough, 139 S. Ct. at 2156–57. We are not in
a position to alter the Heck standard or set aside these concerns.
F.
We have said several times that Savory’s claims did not
accrue until he obtained a favorable termination of his convic-
tion and that this occurred when the governor of Illinois
pardoned him. We base this conclusion on Heck itself, which
38 No. 17-3543

lists “expunge[ment] by executive order” as one of the ways in
which a plaintiff may demonstrate favorable termination. Heck,
512 U.S. at 487. At the en banc oral argument, the defendants
alerted the court for the first time that, if we were to hold that
Savory’s claim accrued on favorable termination, they in-
tended to argue on remand that the governor’s January 12,
2015, pardon is not a favorable termination. Under that theory,
the defendants contend, Savory brought his claims not too late
(as they claimed on appeal) but too early. The district court
rested its dismissal of the case solely on the defendants’
argument that Savory’s claim was too late because it accrued
on December 6, 2011, when his sentence was commuted, his
custody ended, and he lost access to the remedy of habeas
corpus. At no time in the district court did the defendants
argue in the alternative that Savory’s federal claims were too
early, or that the date of accrual was anything other than
December 6, 2011. This entire appeal has been framed as a
contest between two possible dates of accrual: the end of
custody versus favorable termination. The defendants never
suggested until the en banc oral argument that there was a third
possible date for accrual, one that has yet to occur. Savory’s
claims have already been more than forty years in the making
and we wish to avert further delays due to any misunderstand-
ing of this court’s holding today; and so we now clarify that the
governor’s January 12, 2015, pardon was a favorable termina-
tion for the purposes of the Heck analysis.
For many reasons, this holding should not be a surprise to
the defendants. On the first page of their appellate brief, they
stated that, “[O]n January 12, 2015, Savory was granted a
general pardon from then Illinois Governor Pat Quinn. That
No. 17-3543 39

pardon set aside Savory’s double murder conviction.” Defendants’
Brief, at 1 (emphasis added). Although they later asserted that
this general pardon was not based on innocence and failed to
restore all of Savory’s rights of citizenship (they interpret the
pardon to withhold the right to sell, receive, or possess a
firearm), they attached no significance to this assertion within
the Heck framework. Defendant’s Brief, at 5. Instead, they later
conceded that this court has already stated that a section 1983
plaintiff’s claims related to a conviction accrue at the time of a
pardon. See Defendants’ Brief, at 23 (“It is true that this Court,
in Newsome, said it was the plaintiff’s pardon that marked the
accrual of the § 1983 claims.”). See also Newsome v. McCabe, 256
F.3d 747, 749, 752 (7th Cir. 2001) (“a claim based on wrongful
conviction and imprisonment did not accrue until the pardon”
and “the due process claim’s accrual was postponed by Heck
until the pardon.”), abrogated on other grounds, Manuel v. City
of Joliet, Ill., 137 S. Ct. 911 (2017).
The defendants attempted to distinguish Newsome, but that
case is neither meaningfully distinguishable nor unique in
characterizing a pardon by a state’s executive as adequate for
Heck’s favorable termination requirement. In the context of
discussing favorable terminations under Heck, we have often
used “pardon” or “executive pardon” as synonyms for
“expunged by executive order,” the phrase that the Court
employed in Heck. Manuel v. City of Joliet, Ill., 903 F.3d 667, 670
(7th Cir. 2018) (Ҥ 1983 cannot be used to obtain damages for
custody based on a criminal conviction—not until the convic-
tion has been set aside by the judiciary or an executive par-
don”); Moore v. Burge, 771 F.3d 444, 446 (7th Cir. 2014) (“a claim
that implies the invalidity of a criminal conviction does not
40 No. 17-3543

accrue … until the conviction is set aside by the judiciary or the
defendant receives a pardon”); Gilbert v. Cook, 512 F.3d 899, 900
(7th Cir. 2008) (“the plaintiff in an action under 42 U.S.C. §
1983 may not pursue a claim for relief that implies the invalid-
ity of a criminal conviction, unless that conviction has been set
aside by appeal, collateral review, or pardon”). That a pardon
is a favorable termination under Heck is well-settled.
Nevertheless, the defendants assert that Illinois employs
two kinds of pardons, a general pardon and a pardon based on
innocence. They argue that only a pardon based on innocence
is a favorable termination for the purposes of Heck. Because
Savory has obtained only a general pardon and not a pardon
based on innocence, the defendants indicated at oral argument
that they intended to argue on remand that he brought his
claims too soon. The contention that a pardon must be based
on innocence in order to serve as a favorable termination finds
no support in Heck, and we see no reason to impose that
additional limitation on Heck’s holding. If the Court had
wanted to specify that the pardon must be based on innocence,
it certainly could have done so, but it did not. Instead, the
Court offered a list of possible resolutions that would satisfy
the favorable termination requirement, and none require an
affirmative finding of innocence. A conviction need only be
“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. Any
of these outcomes can occur without a declaration of a defen-
dant’s innocence. McDonough added that acquittal is a favor-
able termination under Heck that starts the clock on claim
No. 17-3543 41

accrual, another resolution that does not necessarily imply
innocence. McDonough, 139 S. Ct. at 2161.
The Governor’s pardon of Savory meets the standard
articulated in Heck:
Now, Know Ye, that I, PAT QUINN, Governor of
the State of Illinois, by virtue of the authority vested
in me by the Constitution of the State, do by these
presents: PARDON JOHNNY [sic] L. SAVORY (SID:
23061880) of the said crime of which convicted, and
JOHNNY [sic] L. SAVORY (SID: 23061880) is hereby
acquitted and discharged of and from all further
imprisonment and restored to all the rights of
citizenship which may have been forfeited by the
conviction.
R. 71-3. See Ill. Const. Art. 5, § 12 (“The Governor may grant
reprieves, commutations and pardons, after conviction, for all
offenses on such terms as he thinks proper. The manner of
applying therefore may be regulated by law.”). This full
pardon is followed by language authorizing expungement of
the records of Savory’s conviction, which in Illinois must be
accomplished by application to a court that may, in its discre-
tion order the records sealed. 20 ILCS 2630/5.2(e). It would be
passing strange if the Governor authorized expungement of
the record of conviction without first meaning to expunge the
conviction itself. For the purposes of Heck, as the defendants
themselves conceded on the first page of their brief, Savory’s
42 No. 17-3543

conviction was set aside with this pardon. Under Heck, his
section 1983 claim accrued on that date.10
Finally, we note that the defendants’ failure to raise this
third possible accrual date in the district court and on appeal
appears to have been a deliberate choice. In the district court,
the defendants also moved to dismiss Savory’s state law
claims, and Savory has not challenged that dismissal on
appeal. One of Savory’s state law claims was for the Illinois
tort of malicious prosecution. R. 71, at 16. To proceed on that
tort claim, Illinois requires that the plaintiff prove that the
underlying criminal proceedings terminated in a manner
indicative of the innocence of the accused, a higher standard than
Heck’s favorable termination accrual rule. See Swick v. Liautaud,
662 N.E.2d 1238, 1242 (Ill. 1996) (“a malicious prosecution
action cannot be predicated on underlying criminal proceed-
ings which were terminated in a manner not indicative of the
innocence of the accused”). The defendants argued in the
district court that Savory’s general pardon was insufficient to
meet this Illinois standard because it was not indicative of his
innocence. R. 71, at 16–18.
In support of this contention, the defendants relied on a
federal district court case that held that both a state law
malicious prosecution claim and a section 1983 claim resem-

10
The defendants also suggested that the pardon did nothing more than
discharge Savory from any further imprisonment. This assertion would
render the pardon essentially meaningless in light of the commutation of
sentence granted to Savory in 2011 which discharged him from all further
custody. A pardon is broader in scope and effect than a commutation of a
sentence.
No. 17-3543 43

bling malicious prosecution accrued when the plaintiff
received an innocence pardon in 2003 rather than when he
received a general pardon in 1978. Walden v. City of Chicago, 391
F.Supp.2d 660, 671–72 (N.D.Ill. 2005). But unlike the defen-
dants in Walden, the defendants here did not raise that same
argument in the district court in relation to the section 1983
claims. The defendants were therefore aware of this argument
for a third possible accrual date and chose to raise it only in
relation to the state law claim in the district court. And the
defendants conceded on page one of their brief on appeal that
the pardon set aside Savory’s conviction. For all intents and
purposes, the claim is therefore waived and is not open to re-
litigation on remand. Milwaukee Ctr. for Indep., Inc. v. Milwaukee
Health Care, LLC, 929 F.3d 489, 493–94 (7th Cir. 2019) (failure to
bring an argument in the district court results in waiver on
appeal; and a blatant attempt to contradict what has already
been admitted in formal briefing will not be allowed). Because
of this waiver and because Savory’s pardon clearly meets the
Heck standard for favorable termination, we leave for another
day the consideration of whether some state executive action
labeled “pardon” does not meet Heck’s standard.
III.
Heck controls the outcome where a section 1983 claim
implies the invalidity of the conviction or the sentence,
regardless of the availability of habeas relief. Claims that relate
only to conditions of confinement and that do not implicate the
validity of the conviction or sentence are not subject to the Heck
bar. We disavow the language in any case that suggests that
release from custody and the unavailability of habeas relief
means that section 1983 must be available as a remedy. That
44 No. 17-3543

includes the cases on which the district court, in good faith,
reasonably relied. McDonough confirms that habeas exclusivity
is just one part of the rationale for Heck’s holding. Concerns
about comity, finality, conflicting judgments, and “the hoary
principle that civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments” all
underpin Heck’s favorable termination rule. Heck, 512 U.S. at
486. The Supreme Court may revisit the need for the favorable
termination rule in cases where habeas relief is unavailable, but
it has not yet done so.
Savory’s claims, which necessarily imply the invalidity of
his conviction, accrued when he was pardoned by the gover-
nor of Illinois. His section 1983 action, filed within two years of
the pardon, was therefore timely filed. We reverse the district
court’s judgment and remand for further proceedings.
REVERSED AND REMANDED.
No. 17-3543 45

EASTERBROOK, Circuit Judge, dissenting. The court is
unanimous in concluding that only two potential accrual
rules make sense: either a §1983 claim does not accrue until a
criminal judgment has been set aside, or release from prison
marks the claim’s accrual even if the judgment is unaltered.
All the exceptions, variations, and tergiversation found in
earlier decisions of our panels, and other circuits,1 must be
cast aside. One clear rule or the other is essential.
Unlike my colleagues, however, I think that we should
adopt the rule proposed by Justice Souter, concurring in
Heck v. Humphrey, 512 U.S. 477, 491–503 (1994) (joined by
three other Justices), and later espoused by Justice Ginsburg,
see Spencer v. Kemna, 523 U.S. 1, 21–22 (1998), under which
the end of custody marks the end of deferral. One court of
appeals has followed that path. See Poventud v. New York, 715
F.3d 57, 61 (2d Cir. 2013), resolved en banc on other grounds,
750 F.3d 121 (2014); Leather v. Eyck, 180 F.3d 420, 424 (2d Cir.
1999); Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999). We
should too.

1 In one circuit the claim accrues on release if the ex-prisoner “could not
have practicably sought habeas relief while in custody.” Griffin v. Balti-
more Police Department, 804 F.3d 692, 696 (4th Cir. 2015) (cleaned up). In
another the claim accrues on release if the prisoner “was precluded as a
matter of law from seeking habeas redress”. Powers v. Hamilton, 501 F.3d
592, 601 (6th Cir. 2007) (cleaned up). In a third the law is similar, but the
court lists the circumstances that it believes prevent a prisoner from ob-
taining collateral relief. Guerrero v. Gates, 442 F.3d 697, 704–05 (9th Cir.
2006). And in a fourth circuit the claim accrues on release if the prisoner
has not been able to obtain collateral relief “through no lack of diligence
on his part”. Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir. 2010).
None of these approaches enables either a plaintiff or a district judge to
know when a claim has accrued and the clock is ticking.
46 No. 17-3543

The opinion in Heck states that a §1983 claim for uncon-
stitutional conviction or imprisonment does not accrue until
“the conviction or sentence has been reversed on direct ap-
peal, 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”. 512 U.S. at 487. That is the source of my col-
leagues’ bright-line rule. It also has the support of Heck’s
footnote 10, 512 U.S. at 490 n.10:
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
outstanding 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. Post, at 500.
We think the principle barring collateral
attacks—a longstanding and deeply rooted fea-
ture of both the common law and our own ju-
risprudence—is not rendered inapplicable by
the fortuity that a convicted criminal is no
longer incarcerated. JUSTICE SOUTER opines that
disallowing a damages suit for a former state
prisoner framed by Ku Klux Klan-dominated
state officials is “hard indeed to reconcile …
with the purpose of §1983.” Post, at 502. But if,
as JUSTICE SOUTER appears to suggest, the goal
of our interpretive enterprise under §1983 were
to provide a remedy for all conceivable inva-
sions of federal rights that freedmen may have
No. 17-3543 47

suffered at the hands of officials of the former
States of the Confederacy, the entire landscape
of our §1983 jurisprudence would look very
different. We would not, for example, have
adopted the rule that judicial officers have ab-
solute immunity from liability for damages
under §1983, Pierson v. Ray, 386 U.S. 547 (1967),
a rule that would prevent recovery by a former
slave who had been tried and convicted before
a corrupt state judge in league with the Ku
Klux Klan.
I do not think, however, that either aspect of the opinion in
Heck is conclusive.
Statements in Heck (other than note 10) about the need to
wait for a prisoner’s vindication discuss the claim at hand:
by a prisoner then in custody. Opinions are not statutes and
should not be read as if they were. See, e.g., Zenith Radio
Corp. v. United States, 437 U.S. 443, 462 (1978). Footnote 10 is
the only part of the Court’s opinion in Heck to address the
appropriate treatment of plaintiffs whose custody has end-
ed, and a clearer example of dicta is hard to imagine. The
footnote concerns a subject that had not been briefed by the
parties, that did not matter to the disposition of Heck’s
claim, and that the majority thought would not matter to an-
yone, ever. That belief has been embarrassed by the fact that
many former prisoners contend that their convictions were
wrongful but are no longer in a position to seek collateral
review.2 Heck did not present for decision any question

2 This circuit alone has seen dozens of such cases. The cases cited on the
first page (including footnote 1) of this opinion represent the tip of the
iceberg in other circuits. And four more circuits, which read Heck as my
48 No. 17-3543

about the appropriate treatment of this situation. And the
Justices themselves have told us that Heck did not decide the
question.
Members of the Court have expressed the view
that unavailability of habeas for other reasons
may also dispense with the Heck requirement.
See Heck v. Humphrey, 512 U.S. 477, 491 (1994)
(SOUTER, J., concurring in judgment); Spencer v.
Kemna, 523 U.S. 1, 21–22 (1998) (GINSBURG, J.,
concurring). This case is no occasion to settle
the issue.
Muhammad v. Close, 540 U.S. 749, 752 n.2 (2004). To say that
“[t]his case is no occasion to settle the issue” is to say that the
issue is open—in other words, that it was not settled by Heck,
which occasioned an exchange of competing views but did
not yield a holding. No later case has done so either. Certain-
ly McDonough v. Smith, 139 S. Ct. 2149 (2019), did not do so.
McDonough repeats Heck’s conclusion that an acquittal caus-
es the claim to accrue, without discussing the question
whether release from prison at the end of the sentence also
does so. Justice Ginsburg, who joined the opinion in
McDonough, did not suggest that she has abandoned her
view that a sentence’s end permits suit.
Although footnote 10 is dictum, we are bound by the
Court’s rationales for holding that a person still in prison
may not use §1983 to obtain damages on account of the con-

colleagues do, have addressed similar claims. See Figueroa v. Rivera, 147
F.3d 77 (1st Cir. 1998); Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005); Randell
v. Johnson, 227 F.3d 300 (5th Cir. 2000); Entzi v. Redmann, 485 F.3d 998 (8th
Cir. 2007).
No. 17-3543 49

viction and confinement. There are three: first, the rule from
Preiser v. Rodriguez, 411 U.S. 475 (1973), that §1983 cannot be
used to obtain relief from ongoing custody (the right remedy
is a collateral attack under 28 U.S.C. §§ 2241, 2254, or 2255);
second, the rule that people in state custody must exhaust
state remedies before obtaining federal review (see 28 U.S.C.
§2254(b)(1)); third, the rule that a criminal conviction is a
judgment that the loser normally may not contradict in an-
other court. The first two rationales drop out after a person
has been released from prison, and the third is not a federal
bar when the judgment was entered by a state court. The
effect of a state judgment depends on state law. 28 U.S.C.
§1738; Marrese v. American Academy of Orthopaedic Surgeons,
470 U.S. 373 (1985).
Neither §1983 nor any other federal statute specifies
when a claim accrues. That time has been established by the
Supreme Court as a matter of federal common law. See Wal-
lace v. Kato, 549 U.S. 384, 388 (2007). Wallace adjusted the ac-
crual rules to address claims arising under the Fourth
Amendment, a category of suits that had been the subject of
dictum in some of Heck’s other footnotes (512 U.S. at 486–87
nn. 6, 7) but did not represent a holding any more than note
10 did. Then Manuel v. Joliet, 137 S. Ct. 911 (2017), adjusted
Wallace to address situations in which custody without prob-
able cause continued after an initial judicial appearance.
Both Wallace and Manuel set out to produce accrual doctrines
that respect the need to allow remedies for serious wrongdo-
ing, while avoiding premature litigation. We can and should
do the same.
The Justices expressed concern in Manuel and its succes-
sor McDonough about a rule starting the time so early that
50 No. 17-3543

legitimate claims would be lost. We should be equally con-
cerned about a rule starting the time so late that claims never
accrue. The majority’s approach does just that.
Some sentences are too short to allow collateral relief. We
routinely see cases in which it has taken a decade to pursue a
direct appeal, collateral review in state court, and collateral
review in federal court. If confinement ends before collateral
review begins, the custody requirement prevents all further
review. If the sentence is fully served while state collateral
review is ongoing, federal collateral review cannot begin.
(Only state prisoners “in custody” can seek review under
§2254(a).) So a rule under which a §1983 claim does not ac-
crue as long as the criminal judgment stands means that
thousands of defendants sentenced to less than five or ten
years in prison can never present a §1983 claim, no matter
how egregious the constitutional violations that led to
wrongful conviction and custody.
Released prisoners can obtain relief under the majority’s
approach if their convictions are set aside by pardon (Sa-
vory’s situation) or certificate of innocence. Yet in most states
pardons are rare, and pardons for federal crimes are rarer
still. Getting a certificate of innocence is wickedly hard in
both state and federal systems, because the applicant must
show factual innocence, and even an acquittal does not es-
tablish that. See Pulungan v. United States, 722 F.3d 983 (7th
Cir. 2013). Proof of innocence—the need to prove a nega-
tive—is difficult to come by. Again Savory may be an excep-
tion; he eventually found conclusive DNA evidence. Few
wrongly convicted persons are so fortunate.
Delayed availability of evidence is another problem.
Proof that a given police officer systematically lied or fabri-
No. 17-3543 51

cated evidence in a way that produced convictions may not
become available until any particular sentence is over. It may
take decades for official misconduct to come to light. Under
the majority’s rule this delay means that a §1983 claim will
never accrue unless the former prisoner can obtain a pardon
or certificate of innocence. On my view, by contrast, the
claim accrues no later than release from prison.
Even after a prisoner’s release, suit may be blocked by
the preclusive effect of the state judgment, but that is a
matter of state law under §1738 and should be dealt with in
the same way as any other invocation of issue or claim pre-
clusion. Likewise, if a state claim does not accrue as a matter
of state law—if, for example, exoneration is an element of a
malicious-prosecution claim—a federal court should honor
that rule.
Ex-prisoners who, despite exercising reasonable dili-
gence, cannot obtain essential evidence within two years of
their release, may invoke the doctrine of equitable tolling to
postpone the time to litigate. It is neither necessary nor ap-
propriate to have a federal rule that defers accrual indefinite-
ly. Savory’s claim may well be timely on my approach, but
he did not make an equitable-tolling argument in the district
court, see 338 F. Supp. 3d 860, 866 (N.D. Ill. 2017), and does
not make one here.
Congress could create by legislation a rule foreclosing
damages until a plaintiff, although no longer in prison, has
been vindicated by a pardon or certificate of innocence, but
such a rule cannot be found in any enacted statute. As long
as accrual is governed by federal common law we ought to
implement a rule that protects the states’ principal interests
(avoiding the use of §1983 to attack ongoing custody and en-
52 No. 17-3543

suring that prisoners present their contentions to the state
judiciary) without needlessly blocking potentially legitimate
federal claims. Savory’s victory today comes at a terrible
price—the extinguishment of many substantively valid con-
stitutional claims.