concurring in result only.
I think the court is clearly correct on the malicious prosecution issue and, since by keeping this claim alive we give the plaintiff his day in court on this strange episode, I am willing to concur in the result. I am concerned about other aspects of this decision, however, including questions implicitly raised but not answered.
Although the parties to this appeal do not discuss it, the root of the problem presented lies in the undefined overlap between state common law tort actions and federal civil rights actions brought pursuant to the provisions of 42 U.S.C. § 1983. Ever since the Supreme Court made clear in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that “[t]he federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked,” id. at 183, 81 S.Ct. at 482, the federal courts have had to grapple with the interrelationship of state and federal laws. If state exhaustion were a prerequisite, the accrual date of a federal cause of action would be clear. But because the federal cause of action is tied to the alleged wrong *908and not the failure, inadequacy, or absence of state procedures, we must deal with questions such as are presented here. Monroe v. Pape is also primarily the source of our having to deal with state wrongs which have no unique federal aspect to them. Justice Frankfurter’s fears enunciated in his dissent in Monroe have all come true; once “color of law” was equated with any action by a public official, whether such action was right or wrong, authorized or unauthorized, the federal courts became largely enforcers of state tort law. In an attempt to get out from under the resulting avalanche of cases, we appear now to be in the business, from the Supreme Court on down, of finding ways to limit this application of section 1983 in a manner paralleled only by the attempts to limit the effects of the fourth amendment’s exclusionary rule.
It is clear, as the court points out in this case, that whatever may be this plaintiff’s cause of action and whenever it may have accrued the period of limitations is three years. What is not clear, however, is just what is his cause of action.
Prior to Wilson v. Garcia, when statute of limitations questions arose in the context of section 1983 litigation, this circuit allowed the plaintiff's complaint to be parsed. Each identifiable separate wrong alleged in the complaint would be judged by its own most analogous state statute of limitations. Thus, for example, an excessive force claim might be analogized to a state assault and battery claim and assigned a three-year statute of limitations, while the companion false arrest claim might be subject to the state’s one-year false imprisonment statute. However, now that each wrong alleged in the section 1983 action is subject to the same limitations period, it is no longer as clear as it once may have seemed that all related wrongdoing should not now be considered as one cause of action. This is particularly true in the context of a case such as this where it cannot be demonstrated that any wrong was committed until this plaintiff was in some way vindicated of the state criminal charges. Where the claim of one implicated in a state's criminal justice system is that he is innocent, and that innocence is what makes the state action wrongful, it makes little sense to require a federal suit to be filed until innocence or its equivalent is established by the termination of the state procedures in a manner favorable to the state criminal defendant. More so than in Michigan, this would be particularly true in a state such as Ohio where this court has concluded that the statute of limitations for section 1983 actions is one year. See Mulligan v. Hazard, 777 F.2d 340 (6th Cir.1985), cert. denied, 476 U.S. 1174, 106 S.Ct. 2902, 90 L.Ed.2d 988 (1986).
I would suggest that the rule the court applies in this case simply will not suffice. If the vindication of a defendant in a state criminal proceeding is a necessary ingredient to his ability to establish a section 1983 claim, then none of the claims that are dependent on vindication should accrue until vindication occurs.
On the other hand, if the claims, though they are a part of what might be viewed as a related series of events, have a basis not dependent on vindication, then the cause of action should accrue when the event occurs. For example, if police use excessive force in making an arrest, a section 1983 claim will lie that is independent of the guilt or innocence of the party arrested and the statute should start to run from the day of the beating for that particular claim.
We are already on record in this circuit that a section 1983 action will not lie where resolution of the claim involves a collateral attack on a state court conviction, and that, in such a circumstance, a plaintiff must first seek habeas relief. Hadley v. Werner, 753 F.2d 514 (6th Cir.1985). Another way of stating the Hadley rule is that if vindication is necessary to your claim, you have no claim until you are vindicated. The status of a plaintiff’s claim while he seeks vindication is still in limbo in this circuit. We visited this issue again in Jones v. Shankland, 800 F.2d 77 (6th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 2177, 95 L.Ed.2d 834 (1987), but the court found it unnecessary to resolve this question since the plaintiff waited more than the period of limitations after vindication before filing suit.
*909It would appear there are three ways this matter could be resolved. We could treat the section 1983 action as viable before vindication and a district court would abstain pending resolution of the related state proceeding keeping the case alive on its docket. Alternately, the case could be dismissed without prejudice pending vindication, but this would not protect the plaintiff from the running of a limitations period unless we also concluded that a dismissal without prejudice amounts to a tolling of the statute of limitations. Finally, we could, as I suggest, conclude that the section 1983 cause of action does not accrue until vindication. Under any of the three proposals there is the possibility that a federal court will one day find itself litigating a very old claim. However, the approach which I suggest at least has the virtue of keeping a district court’s docket clear of old cases that are inactive. Furthermore, there is a possibility that after vindication a potential plaintiff will never bother to file suit, whereas if he already had a suit pending, he may be more likely to pursue it.
Another alternative arises when money damages are the object of a section 1983 suit. We might have to go back and revisit our decision in Hadley v. Werner. Hadley was bottomed on Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Preiser dealt only with equitable relief, however, and really stands for little more than the fact that one cannot duck state exhaustion requirements by dressing up a habeas petition as a section 1983 action. When the Hadley Court dismissed the plaintiffs case without prejudice, it may have thought it was preserving a remedy for the plaintiff, but a dismissal without prejudice does not in and of itself toll the running of a statute of limitations. Thus, we are left, or more correctly, plaintiffs are left, with a no man’s land as to the status of their section 1983 actions while they march down the often lengthy road to vindication.
As I stated at the outset, no great harm is done to this plaintiff since he gets another bite at the apple. Furthermore, his claim is not really that he committed no crimes but, rather, that he was “authorized” to do so. Thus, his claim sounds less in innocence than it does in desertion by the police officers who allegedly put him up to it. Thus, this may not be a good example of a true “vindication” case. In any event, this court will have to address at another day the implications of Hadley, Jones, and this decision.