                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-2056

C HRISTOPHER P ARISH, et al.,
                                             Plaintiffs-Appellants,
                                 v.

C ITY OF E LKHART, et al.,
                                            Defendants-Appellees.


              Appeal from the United States District Court
       for the Northern District of Indiana, Hammond Division.
                 No. 07-cv-452—Rudy Lozano, Judge.



        A RGUED A PRIL 9, 2010—D ECIDED JULY 30, 2010




  Before P OSNER, FLAUM and W ILLIAMS, Circuit Judges.
  F LAUM, Circuit Judge. In this case, we are confronted
with the question of when claims of police misconduct
resulting in false arrest, false imprisonment, and inten-
tional infliction of emotional distress (“IIED”), accrue
for the purpose of the general two-year statute of limita-
tion in Indiana. After serving eight years of a thirty-
year prison sentence for attempted murder, plaintiff-
appellant, Christopher Parish, was released from prison
2                                               No. 09-2056

and the charges were dropped. After his release, Parish
filed a complaint against the City of Elkhart and several
officers who worked the case. Parish brought two
claims under § 1983 for violations of his constitutional
rights and three claims for violations of his rights under
state law. The district court dismissed all of Parish’s
state law claims on the ground that they were barred by
Indiana’s statute of limitations. Inherent in that decision
was the ruling that the claims accrued at the time of
arrest and at the time Parish was held over for trial
rather than at the time Parish was exonerated. Parish
appeals. We affirm the district court’s dismissal of the
false arrest and false imprisonment claims. We reverse
the district court’s dismissal of Parish’s claim for IIED.


                      I. Background 1
  On the evening of October 29, 1996, Michael Kershner
was shot in the abdomen outside his mother’s home in
Elkhurst, Indiana. When the police arrived at the scene,
Kershner’s family told the officers that the shooting
occurred inside the home during a home invasion. There
was no evidence of a home invasion because none took
place; the shooting occurred in a parking lot during a
drug deal. Still, despite a lack of corroborating evidence
the police pursued the home invasion theory. Parish
was arrested and tried on the theory that he was one of


1
  Because this appeal stems from a motion to dismiss, we
take the facts from the complaint as true. Johnson v. Rivera,
272 F.3d 519, 520 (7th Cir. 2001).
No. 09-2056                                               3

two individuals who broke into the home and shot
Kershner. At trial, Parish introduced evidence that he
was in Illinois at the time of the shooting and therefore
could not have committed this crime. Parish did not
challenge the state’s evidence regarding the location
of the shooting or the circumstances surrounding the
shooting. The jury found Parish guilty and the court
sentenced Parish to thirty years in prison.
   In 2006, after eight years of post-conviction litigation,
Parish’s conviction was vacated. During the post-convic-
tion litigation, evidence came out that the shooting oc-
curred outside of the home and that the police coerced
several witnesses into identifying Parish as the shooter.
The Indiana Court of Appeals reversed the denial of
Parish’s petition for post-conviction relief and the state
then dropped the charges. Shortly thereafter, Parish,
Parish’s children, Parish’s fiancée, and Parish’s mother
filed suit against the City of Elkhart and three former
officers of the city’s police department. The key factual
allegation in the complaint is: “Almost immediately
after the Kershner shooting, defendants Rezutko, Abrose,
Cutler, and the other law enforcement defendants deter-
mined to falsely implicate Parish and to build a false
case against him, with the aim of securing his false
arrest and then his false imprisonment.” (Complaint,
¶ 16.) The complaint further alleges that to accomplish
these goals, “the officers used improper and suggestive
interview and photo identification techniques, manipu-
lated witnesses, threatened or coerced witnesses, engaged
in staging a crime scene in Kershner’s mother’s apart-
ment, and further fabricated and destroyed evidence.”
4                                                 No. 09-2056

(Complaint, ¶ 17.) Crucial to our analysis, the complaint
also alleges that, in carrying out these acts, “the law
enforcement defendants kept secret and failed to
disclose what they had done or how they had done it.”
(Complaint, ¶ 20.)
  Parish’s complaint alleged two § 1983 claims (denial of
the right to a fair trial and false arrest) and four supple-
mental state law claims (false arrest, false imprisonment,
IIED, and malicious prosecution). Defendants moved
to dismiss all of the claims. Parish did not challenge the
motion to dismiss the § 1983 false arrest claim or the
state law malicious prosecution claim. The district court
denied the motion to dismiss with regard to the § 1983
denial of a fair trial claim. The district court granted the
motion to dismiss with regard to the state law claims for
false arrest, false imprisonment, and IIED on the ground
that they are time-barred. Parish initially appealed the
dismissal of all state law claims.2 However, at oral argu-
ment Parish conceded that the district court properly
found that the claims for false arrest and false imprison-
ment were timed-barred. Therefore, the only remaining
issue in this appeal is whether the district court properly
dismissed the IIED claim.


2
  Because the district court’s September 5, 2008, Order did not
dispose of the entire case—at least one § 1983 claim remained
for further adjudication in the trial court—the defendants
sought certification of the Order dismissing the state law
claims as a final judgment pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure. The district court granted
the certification.
No. 09-2056                                                5

                      II. Discussion
  We review an appeal from a motion to dismiss pursu-
ant to Fed. R. Civ. P. 12(b)(6) de novo. Johnson v. Rivera,
272 F.3d 519, 520 (7th Cir. 2001). When reviewing a
motion to dismiss, we accept all facts alleged in the com-
plaint as true and draw all reasonable inferences in
the light most favorable to the plaintiff. Id. Whether
the claim for IIED is barred by Indiana’s two-year statute
of limitations, which would make dismissal of the claim
appropriate, is the only issue on appeal. Because this
is a state law claim, we apply Indiana law regarding
the statute of limitations and any rules that are an
integral part of the statute of limitations, such as tolling
and equitable estoppel. Hollander v. Brown, 457 F.3d 688,
694 (7th Cir. 2006). The parties agree that the timeliness
of Parish’s claim is governed by Indiana Code 34-11-2-4,
which requires that an action be brought within two
years of the date on which the action accrued. If the
claim accrued at the time of arrest, then this claim is time-
barred. If the claim accrued at the time Parish was ex-
onerated, this claim is not time-barred. We take our
inquiry in two steps. First, we determine, from a purely
legal standpoint, when a claim for IIED accrues under
Indiana law. Then we turn to the specific facts of this
case and apply that rule.


A. The Legal Principles Governing When a Claim for
   IIED Accrues
  There are four cases that are directly relevant to the
analysis of when a claim for IIED accrues under Indiana
6                                               No. 09-2056

law. Two cases come from the Supreme Court of the
United States: Heck v. Humphrey, 512 U.S. 477 (1994), and
Wallace v. Kato, 549 U.S. 384 (2007). Two cases come
from the Indiana courts: Scruggs v. Allen County/City of
Fort Wayne, 829 N.E.2d 1049 (Ind. Ct. App. 2005), and
Johnson v. Blackwell, 885 N.E.2d 25 (Ind. Ct. App. 2008).3
We review these cases in chronological order because
each case is informed by the preceding cases.
  In Heck v. Humphrey, the Supreme Court addressed
the issue of whether an individual convicted of a state
crime could bring a § 1983 claim against the prosecutors
and investigators involved with the state conviction for
engaging in an “unlawful, unreasonable, and arbitrary
investigation” leading to the plaintiff’s arrest, destroying
exculpatory evidence, and employing an illegal voice
identification procedure at trial, while the state convic-
tion was still valid. 512 U.S. 477. The Court found that
the petitioner could not pursue the § 1983 action because
the § 1983 action served as a collateral attack on the
conviction through a procedure other than habeas
corpus. Id. at 485. To arrive at this holding, the Court
specifically analyzed the claims in the complaint and
found that the claims directly attacked the validity of
the conviction. Id. at 486-87. The Court analogized the



3
  Although the Indiana Supreme Court has not directly ruled
on this issue, we find the decisions of the Indiana Court of
Appeals on this issue persuasive authority on the approach
the high court would take. See Maher v. Harris Trust and
Savings Bank, 506 F.3d 560 (7th Cir. 2007).
No. 09-2056                                              7

claims to the common law tort of malicious prosecution.
Id. at 484. Following the common law principle that a
plaintiff cannot bring a claim for malicious prosecution
until the prior criminal proceedings have been ter-
minated in his favor, the Court found that the plaintiff in
Heck could not bring the claims in his complaint until
his conviction had been overturned. Id. The Court care-
fully limited its holding to claims that directly attack
the validity of the conviction:
   We hold that, in order to recover damages for allegedly
   unconstitutional conviction or imprisonment, or for
   other harm caused by actions whose unlawfulness
   would render a conviction or sentence invalid, a § 1983
   plaintiff must prove that the conviction or sentence
   has been reversed on direct appeal, expunged by ex-
   ecutive 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, 28 U.S.C. § 2254. A claim for damages
   bearing that relationship to a conviction or sentence
   that has not been so invalidated is not cognizable
   under § 1983. Thus, when a state prisoner seeks dam-
   ages 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 dis-
   missed unless the plaintiff can demonstrate that the
   conviction or sentence has already been invalidated.
   But if the district court determines that plaintiff’s
   action, even if successful, will not demonstrate the
   invalidity of any outstanding criminal judgment
8                                              No. 09-2056

    against the plaintiff, the action should be allowed
    to proceed, in the absence of some other bar to suit.
Heck, 512 U.S. at 486-87. Under the Heck framework, a
claim that directly attacks the validity of a conviction
cannot accrue until after the conviction has been termi-
nated in a manner favorable to the plaintiff.
  The Indiana courts adopted the Heck framework in
Scruggs, 829 N.E.2d 1049. In Scruggs, several criminal
defendants brought a civil action against the state and
a number of state actors alleging that their imprison-
ment violated the state constitution because they were
not indicted by a grand jury. 829 N.E.2d at 1050. The
Indiana Court of Appeals found that the complaint
failed to state a claim for which relief could be granted.
Id. at 1052. The Scruggs Court based its holding on two
grounds: (1) there was no violation of the state constitu-
tion because the state constitution did not require that
an individual be indicted through the grand jury
process rather than on information, and (2) adopting
Heck, the plaintiffs could not move forward in their
claims for false imprisonment because their claims
would directly attack the validity of their convictions and
they could not show that their convictions had been
overturned or dismissed. 829 N.E.2d at 1051.
  Following Heck and Scruggs, both the Supreme Court
and the Indiana Court of Appeals revisited the issue of
claim accrual for individuals with claims of false arrest
and other claims associated with overturned convictions.
In Wallace v. Kato, the Supreme Court found that a claim
No. 09-2056                                               9

for false arrest or false imprisonment accrues at the
time the individual is brought before a magistrate or
arraigned on charges. 549 U.S. 384. The Court applied
federal common law to the question of claim accrual
because the plaintiff brought the claim in a § 1983 action.
Id. at 388. Relying on federal common law, the Court
held that the claim cannot accrue until the tort of false
imprisonment ends. Id. The Court recognized that this
rule may be informed by “the reality that the victim
may not be able to sue while he is still imprisoned.” Id. at
390. Then, the Court turned to the question of when
false imprisonment ends:
    Reflective of the fact that false imprisonment consists
    of detention without legal process, a false imprison-
    ment ends once the victim becomes held pursuant to
    such process—when, for example, he is bound over
    by a magistrate or arraigned on charges. Thereafter,
    unlawful detention forms part of the damages for
    the “entirely distinct” tort of malicious prosecution,
    which remedies detention accompanied, not by ab-
    sence of legal process, but by wrongful institution of
    legal process. . . . Thus, petitioner’s contention that
    his false imprisonment ended upon his release from
    custody, after the State dropped the charges against
    him, must be rejected. It ended much earlier, when
    the legal process was initiated against him, and the
    statute would have begun to run from that date, but
    for its tolling by reason of petitioner’s minority.
Wallace, 549 U.S. at 389.
  The Court distinguished Wallace from Heck on the
ground that the claim in Heck was analogous to the tort to
10                                               No. 09-2056

malicious prosecution rather than false imprisonment.
Id. While a claim of malicious prosecution would inevi-
tably impugn a conviction, a claim of false imprison-
ment only impugns an anticipated future conviction
because the claim ends well before the conviction occurs
(or before the plaintiff knows whether charges will even
be pursued). Our Circuit recently had cause to interpret
Wallace in Evans v. Poskon, 603 F.3d 362 (7th Cir. 2010).
In Evans we characterized Wallace as holding “a claim
that accrues before a criminal conviction may and
usually must be filed without regard to the conviction’s
validity.” Id. at 363. This description of the holding in
Wallace hones in on the factual distinction between
Heck and Wallace: the tort of false arrest is complete, and
therefore begins to accrue, once the individual is
brought before a magistrate; the tort of malicious pros-
ecution is not complete until a conviction occurs and
that conviction has been overturned, and therefore the
statute of limitations for malicious prosecution does not
begin to accrue until that time. Id.
  The Indiana Court of Appeals again addressed the
issue of claim accrual in Johnson v. Blackwell. 885 N.E.2d 25.
The court in Johnson interpreted Wallace in much the
same way we interpreted Wallace in Evans. In Johnson,
the plaintiff-appellate, Jon S. Johnson, filed a complaint
against several members of the Madison County Sheriff’s
Department, alleging civil rights violations, false impris-
onment, false arrest, wrongful infliction of emotional
distress, and invasion of privacy by intrusion. 885 N.E.2d
at 28. Although Johnson brought the civil suit in Indiana
state court, the underlying criminal charge was federal.
No. 09-2056                                              11

Johnson had been arrested and convicted for possession
with intent to distribute crack cocaine. The arrest and
conviction were the result of an anonymous tip that led
the officers (the defendants in the civil suit) to Johnson’s
house. The officers went to Johnson’s house without a
search warrant. At the house, the detectives threatened
Johnson until he allowed them into the home to search.
The officers found drugs in the home and federal charges
were brought. Johnson was convicted. Our Court vacated
the conviction and ordered the case remanded to the
district court for an evidentiary hearing on whether the
detectives lacked reasonable suspicion to seize Johnson.
The district court found that the officers did lack rea-
sonable suspicion and the indictment was dismissed.
Johnson’s complaint against the officers focused exclu-
sively on the officers’ threats to enter the house and their
actions when they searched Johnson’s house and arrested
him without probable cause. Johnson brought his claim
more than two years after the search of his home. The
Indiana Court of Appeals found that all of the claims
were time-barred. Id.
  The Johnson court determined that Indiana’s two-year
statute of limitations, I.C. 34-11-2-4, governed and then
discussed when the claims accrued. Id. at 30. The court
adopted the rule from Wallace v. Kato for the false ar-
rest/false imprisonment claims and found that the
period of limitations began to run when the alleged
false imprisonment ended—at the time Johnson was
arraigned. Id. at 30. In addressing the other claims (civil
rights violations, wrongful infliction of emotional
distress, and invasion of privacy by intrusion), the court
12                                                  No. 09-2056

found that they accrued when the house was searched.
Id. at 31. Notably, in addressing these claims the court
did not apply the same bright-line rule from Wallace that
accrual happens upon arraignment. Instead, the court
applied the standard discovery rule for accrual and
considered when the tort occurred and when Johnson
knew, or should have known, about the tort. Id. The only
claimed tortious conduct occurred during the time of
the illegal search and Johnson was present for the
entire duration of the tortious conduct. Therefore, the
court found that those claims accrued on the day that the
search occurred and Johnson could not benefit from the
tolling doctrine of continuing wrong. Id. at 32.
  Defendants claim that the Indiana Court of Appeals in
Johnson overruled their earlier decision in Scruggs to
adopt the Heck reasoning. That is not true. Johnson’s
claims did not attack the validity of the conviction. Johnson
claimed that the wrongful conduct of the defendant
officers was their aggressive behavior during the search
of his house. These allegations do not amount to a chal-
lenge to the conviction.4 As such, Johnson’s complaint
did not invoke the Heck framework and we do not read
the Johnson opinion to be a recantation of Indiana’s prior


4
  The Supreme Court in Heck envisioned claims such as those
in Johnson and specifically stated that the Heck reasoning
did not reach those claims. Heck, 512 U.S. at 487 n.7 (“For
example, a suit for damages attributable to an allegedly unrea-
sonable search may lie even if the challenged search produced
evidence that was introduced in a state criminal trial re-
sulting in the § 1983 plaintiff’s still-outstanding conviction.”).
No. 09-2056                                                 13

adoption of Heck. Instead, we read these cases to rely on
the same general distinction we relied on in Evans:
whether the claimed tort occurred and was completed
before conviction—as would be the case with a claim for
false arrest, false imprisonment, or IIED resulting from
offensive behavior at the time of arrest—or the claimed
tort was not complete prior to conviction—as would be
the case with a claim for malicious prosecution or IIED
resulting from actions that lead to a false conviction. If the
claimed tort occurred and was completed before the
conviction, such as the claims in Johnson, the claims
accrue immediately upon the completion of the tort. If
the claimed tort continued through, or beyond, the point
of conviction, the court must ask whether the claims
would directly implicate the validity of the conviction.
If the claims would not directly implicate the validity of
the conviction, the court should follow the standard
discovery rule applied in Indiana: The claim accrues at
the time the individual knew or should have known of
the tort. See Johnson, 885 N.E.2d at 30 (citing Filip v. Block,
879 N.E.2d 1076, 1082 (Ind. 2008)). If the claim would
directly implicate the validity of the conviction, then
Heck and Scruggs come into play and the claim does not
accrue until the conviction has been disposed of in a
manner favorable to the plaintiff.


B. Applying the Rule for IIED Claim Accrual to
   Parish’s Claims
 To prevail on a claim for IIED under Indiana law, Parish
must show that the defendants, by extreme or outrageous
14                                             No. 09-2056

conduct, intentionally or recklessly caused him severe
emotional distress. See Cullison v. Medley, 570 N.E.2d 27,
31 (Ind. 1991). Parish claims that officers created a fake
crime scene, fabricated evidence, tampered with evidence,
destroyed or withheld exculpatory evidence, either
actively suborned or deliberately turned a blind eye to
perjured testimony, and testified falsely under oath,
leading to his wrongful conviction. Parish also claims
that the officers covered up their actions to maintain the
continued incarceration of Parish. First, looking only at
the actions of the officers, it is clear that this tort was
not completed prior to the conviction. The officers al-
legedly took steps through all stages of the investigation
and trial that cumulatively amounted to the tort of IIED.
Additionally, the conviction was an essential piece of
this tort because it was the wrongful conviction that led
to the emotional strain and mental anguish that Parish
faced. Therefore, unlike the claimed tortious conduct
in Johnson, which was complete immediately after the
search occurred, Parish’s claim of IIED was not complete
prior to the time of conviction because the conviction
was the crux of the claim.
  Turning to the second part of the analysis, we con-
sider whether the facts alleged to support Parish’s claim
of IIED directly attack the validity of the conviction. The
Heck Court was explicitly concerned about opening up
avenues to challenge a conviction through means other
than the state or federally proscribed channels, such
as habeas corpus. Heck, 512 U.S. at 482. At the heart of
Parish’s complaint is a claim that the defendant offi-
cers fabricated an entire case against him that led to his
No. 09-2056                                              15

wrongful conviction. The factual allegations that Parish
was innocent and that the officers committed perjury,
falsified evidence, coerced witnesses to commit perjury,
and withheld exculpatory evidence are all challenges to
the conviction that would only have been proper while
the conviction was still outstanding if Parish brought
them through proscribed post-conviction relief channels.
Therefore, under Indiana’s adoption of Heck, Parish
could not have brought these claims until his conviction
was disposed of in a manner favorable to him. Parish
brought his claim within two years of when the claim
accrued upon his exoneration, thereby making the
claim timely.


                     III. Conclusion
  For the reasons discussed above, we R EVERSE the
district court’s dismissal of Parish’s IIED claim. Also,
based on Parish’s concession at oral argument, we A FFIRM
the district court’s dismissal of the false arrest and false
imprisonment claims.




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