               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 18-3084
                      ___________________________

                             Terry Lynn Olson

                                  Plaintiff - Appellant

                                     v.

     Janis Amatuzio, Former Wright County Medical Examiner, Tom Roy,
   Commissioner, Minnesota Department of Corrections, Joan Fabian, former
            Commissioner, Minnesota Department of Corrections

                                 Defendants - Appellees
                               ____________

                  Appeal from United States District Court
                       for the District of Minnesota
                              ____________

                        Submitted: October 17, 2019
                            Filed: January 3, 2020
                               [Unpublished]
                              ____________

Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
                              ____________

PER CURIAM.
       Terry Olson appeals the district court’s 1 dismissal of his complaint because it
determined Heck v. Humphrey, 512 U.S. 477 (1994), and the Minnesota statute of
limitations, Minn. Stat. § 541.05, subd. 1(5), barred his claims. We affirm.

       In 1979, police found a dead body on a road in Wright County, Minnesota.
State v. Olson, No. A08-0084, 2009 WL 2147262, at *1 (Minn. Ct. App. July 21,
2009). “The police investigation was inconclusive and the case eventually went
cold.” Id. In 2005, after police reopened the investigation, then Wright County
Medical Examiner Janis Amatuzio changed the classification of the death from
undetermined to homicide. A grand jury indicted Olson later that year, and
Amatuzio testified at Olson’s trial in 2007 that the 1979 death was caused by one or
two blows to the head. Id. at *1, *4. A jury convicted Olson of second and third
degree murder. Id. at *3.

       After his direct appeal and petitions for state post-conviction relief, Olson
filed a petition for a writ of habeas corpus in federal court. The petition was
eventually resolved when the county prosecuting authority stipulated “to the
issuance of a Conditional Writ of Habeas Corpus.” The stipulation stated that the
prosecuting authority did “not admit any fault or wrongdoing in the original
sentence” but agreed to a modification of the sentence “in an effort to bring finality
to [the] proceeding and the underlying conviction.” The district court issued a writ
and order remanding the case to state court for resentencing. Olson was resentenced
and released, and he stipulated to dismissing all his habeas claims with prejudice.
The district court subsequently vacated its writ and dismissed the case with
prejudice.

      Then, in January 2018, Olson filed a complaint against Amatuzio and the
current and former commissioners of the Minnesota Department of Corrections,
Tom Roy and Joan Fabian respectively (collectively, “Commissioners”). Under 42


      1
        The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

                                         -2-
U.S.C. § 1983, Olson alleged that the Commissioners violated his substantive due
process, equal protection, and Eighth Amendment rights by “imposing and
maintaining” an objectively unreasonable sentence, and he argued that the sentence
they imposed violated his rights under the Ex Post Facto Clause of the United States
Constitution. Also under § 1983, Olson alleged that Amatuzio violated his
substantive due process rights, and he brought a negligence claim against her for her
decision to change the classification of the 1979 death from undetermined to
homicide.

      Amatuzio and the Commissioners filed motions to dismiss, see Fed. R. Civ.
P. 12(b)(6), and the district court—the same district court that issued the conditional
writ of habeas corpus—granted their motions. It determined that Olson’s § 1983
claims were Heck-barred. It also determined that Olson’s negligence claim was
barred by the statute of limitations. Olson appeals.

      We review de novo the district court’s dismissal of Olson’s claims under Rule
12(b)(6). Minter v. Bartruff, 939 F.3d 925, 926 (8th Cir. 2019). To survive a motion
to dismiss under Rule 12(b)(6), a complaint must include “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).

      Olson first argues that his § 1983 claims are not barred by Heck v. Humphrey.
In Heck, the Supreme Court held that to recover damages under § 1983 for an alleged
“unconstitutional conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,” the “plaintiff
must prove that the conviction or sentence has 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.” 512 U.S. at 486-87. If a plaintiff cannot make this showing,
dismissal is appropriate. Id. at 487.




                                         -3-
       Olson argues, as he did before the district court, that the district court’s writ
of habeas corpus called into question his sentence. He highlights the fact that the
district court’s order said that “the interests of fairness, justice, and equity will be
served by the issuance of an order.”

       We begin by emphasizing that the same judge who issued the federal writ of
habeas corpus also decided this matter. In finding that the § 1983 claims were Heck-
barred, the district court judge said Olson’s “shortened sentence was achieved via a
stipulation between the parties and wherein the state expressly disavowed any
illegality with respect to Olson’s sentence.” It noted that “[t]he stipulation and the
Court’s subsequent writ did not mention the . . . administration of Olson’s sentence”
and determined that there was “no finding that the [Minnesota Department of
Corrections] unlawfully incarcerated Olson.” Moreover, the district court later
vacated its writ after the parties’ agreement was achieved, meaning it was “as if it
had never been written.” Medici v. City of Chicago, 856 F.3d 530, 533 (7th Cir.
2017); see also Vacate, Black’s Law Dictionary (11th ed. 2019) (“To nullify or
cancel; make void; invalidate”). Under Heck’s plain language, we agree with the
district court that neither Olson’s conviction nor his sentence were called into
question by the (later vacated) conditional writ issued in this case. We thus conclude
that the district court properly dismissed Olson’s § 1983 claims.

       Olson next argues that the district court erroneously determined that his
negligence claim against Amatuzio is barred by the statute of limitations. In his
complaint, Olson says Amatuzio was negligent by relying on eyewitness testimony
“in changing the manner of [the 1979 death] from ‘undetermined’ to ‘homicide,’
an[d] by failing to conduct an objectively reasonable investigation as to the manner
of [the] death.” According to Olson, the eyewitness testimony was not credible. His
complaint also says that Amatuzio admitted in a January 2012 affidavit and in her
testimony during his post-conviction proceedings that if she had known the
eyewitness was not credible, she would not have reclassified the cause of death.




                                          -4-
       Amatuzio changed the classification of the 1979 death in 2005 and testified at
Olson’s trial in 2007. Olson did not file his complaint until 2018, well after
Minnesota’s six-year statute of limitations had run. Minn. Stat. § 541.05, subd. 1(5);
see Hermeling v. Minn. Fire & Cas. Co., 548 N.W.2d 270, 274 (Minn. 1996)
(explaining that the statute of limitations begins to run from the date of the action
that caused the injury), overruled on other grounds by Oanes v. Allstate Ins. Co.,
617 N.W.2d 401 (Minn. 2000).

       Olson nevertheless argues that the statute of limitations should be tolled
because Amatuzio “fraudulently concealed the facts underlying his cause of action”
when she testified at his trial. The district court dismissed Olson’s claim because it
determined that Olson did not plead sufficient facts that Amatuzio concealed the
facts relevant to the cause of action. See Guy v. Swift & Co., 612 F.2d 383, 385 (8th
Cir. 1980) (per curiam) (“Where it appears from the face of the complaint itself that
the limitation period has run, an action is properly subject to dismissal for failure to
state a claim under Fed.R.Civ.P. 12(b)(6).”). We agree.

       “Fraudulent concealment tolls the statute of limitations until the party
discovers, or has a reasonable opportunity to discover, the concealed defect.”
Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 918 (Minn. 1990). To “make a
valid claim of fraudulent concealment sufficient to toll the statute of limitations,” a
plaintiff must show that (1) the defendant made “a statement or statements that
concealed [the] potential cause of action, (2) the statement or statements were
intentionally false, and (3) the concealment could not have been discovered by
reasonable diligence.” Williamson v. Prasciunas, 661 N.W.2d 645, 650 (Minn. Ct.
App. 2003).

        Olson claims that Amatuzio concealed the reason why she changed the
classification of the 1979 death by implying in her testimony that she made the
change based on forensic science rather than witness testimony. But according to
the transcript excerpt of Amatuzio’s testimony in Olson’s complaint, Amatuzio
testified that she based her decision to change the classification on her “review of


                                          -5-
the evidence.” She did not say she based her decision on the “forensic science,” nor,
based on the excerpt in the complaint, did she give any indication which evidence
ultimately influenced her decision. Olson’s complaint says Amatuzio did not
“clarify that the sole reason she changed the manner of death” was the eyewitness
testimony, but “[i]n no case . . . is mere silence or failure to disclose sufficient in
itself to constitute fraudulent concealment.” Goellner v. Butler, 836 F.2d 426, 431
(8th Cir. 1988) (interpreting Minnesota law). Olson’s factual allegations do not
support an inference that Amatuzio intentionally concealed his cause of action.

        We also agree with the district court that Olson’s complaint does not contain
facts that suggest he could not have discovered the alleged concealment by
reasonable diligence. See Clark v. Fabian, No. A08-0308, 2008 WL 4977605, at *5
(Minn. Ct. App. Nov. 25, 2008) (“Nor does [the plaintiff] provide any allegations
that, if true, would support a determination that this concealment could not have
been discovered with due diligence before the statutes of limitations ran.”). For
example, Olson’s complaint does not contain facts showing that he could not have
asked Amatuzio to clarify upon which evidence she relied in making her decision
during cross examination at his trial. Cf. Wild v. Rarig, 234 N.W.2d 775, 795 (Minn.
1975) (“The party claiming fraudulent concealment has the burden of showing that
the concealment could not have been discovered sooner by reasonable diligence on
his part and was not the result of his own negligence.”). Olson thus did not “state
with particularity the circumstances constituting fraud.”2 See Fed. R. Civ. P. 9(b);



      2
        After the parties submitted their briefs, Olson submitted a letter pursuant to
Rule 28(j) of the Federal Rules of Appellate Procedure, arguing that the Supreme
Court’s decision in McDonough v. Smith, 139 S. Ct. 2149 (2019), “bears directly”
on the statute of limitations issue. But McDonough involved a fabricated evidence
claim under § 1983, where the Supreme Court determined the statute of limitations
did not begin to run until “the criminal proceeding has ended in the defendant’s
favor,” 139 S. Ct. at 2158, not a negligence claim under Minnesota state law, where
the statute of limitations begins to run from the date of the action that caused the
injury, Hermeling, 548 N.W.2d at 274. See McDonough, 139 S. Ct. at 2155 n.2
(“Accordingly, we do not address what the accrual rule would be for a claim rooted

                                         -6-
Summerhill v. Terminix, Inc., 637 F.3d 877, 880 (8th Cir. 2011) (“Under Rule 9(b)’s
heightened pleading standard, allegations of fraud, including fraudulent
concealment for tolling purposes, must be pleaded with particularity.” (internal
quotation marks and brackets omitted)).

      Finally, we conclude that the district court did not abuse its discretion by not
granting Olson leave to amend his complaint. See Soueidan v. St. Louis Univ., 926
F.3d 1029, 1036 (8th Cir. 2019) (reviewing the denial of a request to amend a
complaint for an abuse of discretion). Olson did not submit a motion to amend his
complaint, nor did he submit a proposed amendment, which we have held a party
must do to “preserve the right to amend a complaint.” See Wolgin v. Simon, 722
F.2d 389, 395 (8th Cir. 1983).

      For the foregoing reasons, we affirm.
                      ______________________________




in other types of harm independent of a liberty deprivation, as no such claim is before
us.”).

                                         -7-
