In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1004

Ronald Robinson,

Plaintiff-Appellant,

v.

John Doe, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99 C 1073--Joe B. McDade, Chief Judge.

Submitted October 9, 2001--Decided November 26, 2001



  Before Posner, Manion, and Rovner, Circuit
Judges.

  Posner, Circuit Judge. The plaintiff
sued several police officers under 42
U.S.C. sec. 1983, charging that they had
used excessive force in arresting him; he
was later convicted of a drug offense,
partly because of evidence (crack cocaine
plus cash) seized in a search that
accompanied the arrest. The district
court dismissed the suit as barred by the
two-year statute of limitations
applicable to such claims. The plaintiff
had mailed his complaint to the district
court within the two-year period but it
had been returned to him without being
filed, pursuant to Rule 16.3(A)(8) of the
U.S. District Court for the Central
District of Illinois, because it was
unaccompanied by a filing fee or, in lieu
of the fee, a motion to proceed in forma
pauperis, that is, without paying the
fee.

  The statute of limitations in a suit
based on federal law, as this one is,
stops running when the complaint is
filed, e.g., Henderson v. United States,
517 U.S. 654, 657 n. 2 (1996); Williams-
Guice v. Chicago Board of Education, 45
F.3d 161, 162 (7th Cir. 1995); Gilardi v.
Schroeder, 833 F.2d 1226, 1233 (7th Cir.
1987); Martin v. Demma, 831 F.2d 69, 71
(5th Cir. 1987), though it may resume
running later. Williams-Guice v. Chicago
Board of Education, supra, 45 F.3d at
164-65; Elmore v. Henderson, 227 F.3d
1009, 1011 (7th Cir. 2000). The complaint
is "filed" for purposes of this rule when
the court clerk receives the complaint,
not when it is formally filed in
compliance with all applicable rules
involving filing fees and the like,
Martin v. Demma, supra, 831 F.2d at 71;
for a "clerk shall not refuse to accept
for filing any paper presented for that
purpose solely because it is not
presented in proper form as required by
these rules or any local rules." Fed. R.
Civ. P. 5(e) (emphasis added). And so the
Central District’s Rule 16.3(A)(8) could
not compress the time within which the
plaintiff, once he filed his complaint--
albeit not in proper form, because
unaccompanied by the fee or in lieu
thereof by a motion for leave to proceed
in forma pauperis--could sue. E.g.,
Gilardi v. Schroeder, supra, 833 F.2d at
1233; Ordonez v. Johnson, 254 F.3d 814
(9th Cir. 2001) (per curiam); McDowell v.
Delaware State Police, 88 F.3d 188, 190-
91 (3d Cir. 1996). The Committee Note to
Fed. R. Civ. P. 5(e) disapproves of the
practice of returning complaints that
don’t comply with local rules, but in any
event that practice cannot defeat a
right, which in this case is a right to
arrest the running of the statute of
limitations by filing a complaint in the
district court, that is conferred by the
national rules. Fed. R. Civ. P. 83; GCIU
Employer Retirement Fund v. Chicago
Tribune Co., 8 F.3d 1195, 1201 (7th Cir.
1993); Brown v. Crawford County, 960 F.2d
1002, 1008 (11th Cir. 1992); Carver v.
Bunch, 946 F.2d 451, 453 (6th Cir. 1991).

  All this would be of little moment in
this case if the plaintiff’s case were so
lacking in merit that it could not
survive a motion to dismiss for failure
to state a claim. And it might seem that
since he was convicted on the basis of
evidence obtained as an incident to the
arrest that he is challenging, his suit
is indeed barred at the threshold, by
Heck v. Humphrey, 512 U.S. 477 (1994).
Not so. He isn’t challenging the arrest,
or the seizure of evidence pursuant to
it, but the (alleged) use of excessive
force by the police in effecting the
arrest. It might appear that because the
defendants deny having used excessive
force, the plaintiff could not prevail in
this suit without proving them to be
liars; and that would undermine the
testimony on the basis of which the
arrest itself and the search incident to
it were held lawful in Robinson’s
criminal trial. Not necessarily. Police
might well use excessive force in
effecting a perfectly lawful arrest. And
so a claim of excessive force in making
an arrest does not require overturning
the plaintiff’s conviction even though
the conviction was based in part on a
determination that the arrest itself was
lawful. Nelson v. Jashurek, 109 F.3d 142,
145-46 (3d Cir. 1997); see also
Washington v. Summerville, 127 F.3d 552,
556 (7th Cir. 1997); Ove v. Gwinn, 264
F.3d 817, 823 (9th Cir. 2001); Willingham
v. Loughnan, 261 F.3d 1178, 1183 (11th
Cir. 2001); Jackson v. Suffolk County
Homicide Bureau, 135 F.3d 254, 257 (2d
Cir. 1998); cf. Heck v. Humphrey, supra,
512 U.S. at 487 n. 7; Gonzalez v.
Entress, 133 F.3d 551 (7th Cir. 1998).

  Our decision in Okoro v. Bohman, 164
F.3d 1059, 1061 (7th Cir. 1999), is not
inconsistent with these cases. The
plaintiff claimed that he’d been framed;
that the police who arrested him for
supposedly selling heroin to them had
really come to purchase not heroin but
gems, which they subsequently stole from
him and then fabricated the tale of his
selling them heroin. The testimony of the
police that they had bought heroin from
the plaintiff was essential to his
conviction, yet had he proved his false-
arrest case the testimony would have been
completely discredited. The rule of Heck
is that unless and until a criminal
defendant gets his conviction overturned,
he can’t base a civil case on evidence
that if true shows he was wrongly
convicted; that is an impermissible end
run around the conviction. But this is
not such a case.

  The plaintiff still must lose, however.
He did not try to establish the
timeliness of his complaint until after
the district court had given him more
than a month to reply to the defendants’
motion to dismiss his suit as untimely.
He has given no legitimate excuse for his
tardiness in replying to the motion and
the judge therefore did not abuse
hisdiscretion in dismissing the suit for
want of prosecution. Bolt v. Loy, 227
F.3d 854, 856 (7th Cir. 2000); cf.
McCormick v. City of Chicago, 230 F.3d
319, 328 (7th Cir. 2000); Berwick Grain
Co. v. Illinois Dept. of Agriculture, 189
F.3d 556, 560 (7th Cir. 1999). Compliance
with the rules regarding the proper
filing of a complaint is not excused
merely because a noncompliant complaint
interrupts the running of the statute of
limitations.

Affirmed.
