                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 13a0175p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                X
                                                 -
 JESSIE HARRISON,
                                                 -
                                 Plaintiff-Appellant,
                                                 -
                                                 -
                                                     No. 10-2185
           v.
                                                 ,
                                                  >
                                                 -
                       Defendants-Appellees. -
 STATE OF MICHIGAN, et al.,
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
                 No. 1:10-cv-570—Janet T. Neff, District Judge.
                              Decided and Filed: July 10, 2013
Before: DAUGHTREY and ROGERS, Circuit Judges; ZOUHARY, District Judge.*

                                      _________________

                                           COUNSEL
ON BRIEF: Jessie Harrison, Ionia, Michigan, pro se.

         DAUGHTREY, J., delivered the opinion of the court, in which ZOUHARY,
D. J., joined. ROGERS, J. (pp. 14–16), delivered a separate dissenting opinion.
                                      _________________

                                            OPINION
                                      _________________

        MARTHA CRAIG DAUGHTREY, Circuit Judge. Plaintiff Jessie Harrison filed
this civil rights action pro se, seeking damages and injunctive relief stemming from his
unlawful confinement in the Michigan prison system. In 1986, Harrison was sentenced
to consecutive terms of imprisonment following a jury conviction for two crimes that,
under state law, were subject to concurrent sentencing only. Harrison was released from


        *
           The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.


                                                  1
No. 10-2185         Harrison v. State of Mich., et al.                                Page 2


prison in 1990, some 18 months after serving the statutory maximum for the offenses of
conviction. On collateral review, the Michigan Court of Appeals held that Harrison had
been improperly sentenced and ordered that a corrected judgment be issued. People v.
Harrison, No. 279123, 2008 WL 4276544 (Mich. Ct. App. Sept. 16, 2008). In 2010,
Harrison filed the instant action against the State of Michigan and a number of state
defendants, seeking damages and a reduction in a subsequent, unrelated prison sentence
that he was still serving at the time this action was filed. The district court dismissed the
complaint, holding that some of the defendants were immune from suit under the
Eleventh Amendment; that the claims against the remaining defendants were time-
barred; and that the claim concerning the failure to commute his 1991 sentence was non-
cognizable. Harrison v. Michigan, No. 10-cv-570, 2010 WL 2925992 (W.D. Mich. July
21, 2010). Although we find no error in the district court’s rulings on the question of
sovereign immunity and on the commutation issue, we conclude that Harrison’s claim
for damages under 42 U.S.C. § 1983 is not time-barred. We therefore reverse the district
court’s judgment and remand the case for further proceedings.

                FACTUAL AND PROCEDURAL BACKGROUND

        In 1986, Harrison was charged with second-degree murder and carrying a firearm
during the commission of a felony ("felony-firearm"). Following a jury trial, Harrison
was convicted of reckless use of a firearm resulting in death – a lesser-included
misdemeanor – and felony-firearm. Harrison received consecutive sentences. He
notified prison officials that his sentence was too long, but the warden and the parole
board ignored his protestations. As a result, he was not released until March 1990.
Following his release, Harrison subsequently committed another, unrelated firearm
offense in 1991, was found guilty, and returned to prison.

        Apparently, incarceration provided Harrison with time to research Michigan law
and, in 2003, Harrison filed a motion in state court for relief from the 1986 judgment
under Michigan Court Rule 6.502. Harrison asserted that his 1986 sentence was
improper because the felony-firearm sentence could not run consecutively to a sentence
for a misdemeanor. This error, Harrison argued, resulted in his serving 18 months of
No. 10-2185        Harrison v. State of Mich., et al.                               Page 3


illegal imprisonment. The state trial court denied relief but that decision was reversed
on appeal. In spite of the fact that he was no longer in prison on the conviction that led
to the sentence under challenge and had not raised the issue on direct appeal, the
Michigan Court of Appeals ruled that the sentence he received was “invalid” and, as
such, constituted “actual prejudice.” With the state’s concurrence, the court also
excused Harrison’s delay in filing the motion for relief from judgment, finding that the
delay was caused by ineffective assistance of counsel on the part of his trial and
appellate counsel, who had failed to challenge his sentence at trial or on direct appeal.
As a result, the Michigan Court of Appeals reversed the 1986 sentence and ordered the
lower court to issue a new judgment. Harrison, 2008 WL 4276544, at *2. The state trial
court promptly did so.

       Armed with his favorable decision from the state appellate court and the
corrected judgment, Harrison petitioned the Michigan Department of Corrections
(MDOC) to give him 18 months’ credit on the 1991 sentence that he was still serving,
but he was told that there was no authority to do so, because the new decision related to
his 1986 conviction only. Undeterred, Harrison filed an application for a commutation
of the last two years of his 1991 sentence with the Michigan Parole Board and, later,
with the Governor, but met with no success.

       Harrison then filed this action in 2010, under 42 U.S.C. § 1983. In his complaint,
he alleged that the State of Michigan, the Michigan Parole Board, MDOC, Governor
Jennifer Granholm, Wayne County, and a number of MDOC officials violated his
constitutional rights by failing to commute his 1991 sentence and sought money
damages for the 18 months he served beyond the statutory maximum provided for his
1986 convictions. The district court dismissed the claims against the State, MDOC, and
the Parole Board on the basis of sovereign immunity. Harrison, 2010 WL 2925992, at
*2. With regard to the claims against the individual defendants, the district court held
that they were time-barred, after applying a three-year statute of limitations triggered by
Harrison’s release from prison in 1990 and citing as support Wallace v. Kato, 548 U.S.
384, 389 (2007). Id. at *3-4. The district court then dismissed the complaint sua sponte
No. 10-2185         Harrison v. State of Mich., et al.                                Page 4


for failure to state a claim. It did so without waiting for a response from the state, citing
42 U.S.C. § 1997e(c)(1). That statute allows a district court, on its own motion, to
dismiss an action filed by a prisoner “if the court is satisfied that the action is frivolous,
malicious, fails to state a claim upon which relief can be granted, or seeks monetary
relief from a defendant who is immune from such suit.” The district court also relied on
28 U.S.C. § 1915(a)(3) in certifying that an appeal could not be taken “in good faith.”

        Harrison has, nevertheless, appealed the district court’s order of dismissal,
asserting, inter alia, that the statute of limitations did not begin running in 1990 when
he was released from custody on the sentence in question but, instead, in 2010 when he
received a favorable decision from the state court that corrected his 1986 sentence. We
granted Harrison the right to proceed in forma pauperis and now review the district
court’s decision in the absence of an appearance by the defendants, who declined to file
a brief in this matter.

                                        ANALYSIS

Standard of Review

        In dismissing the complaint for failure to state a claim, the district court was
required to accept all well-pleaded facts as true, J.P. Morgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 581 (6th Cir. 2007), and apparently did so. That leaves us with
questions of law, which we review de novo. McGore v. Wrigglesworth, 114 F.3d 601,
604 (6th Cir. 1997), overruled on other grounds in LaFountain v. Harry, ___F.3d ___,
___ (6th Cir. 2013).

Sovereign Immunity

        The district court correctly held that the State, MDOC, and the state parole board
were immune from suit under the Eleventh Amendment. “There can be no doubt . . . that
suit against [a] State and its Board of Corrections is barred by the Eleventh Amendment,
unless [the State] has consented to the filing of such a suit,” Alabama v. Pugh, 438 U.S.
781, 782 (1978), or unless Congress has expressly abrogated Eleventh Amendment
immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984).
No. 10-2185         Harrison v. State of Mich., et al.                                Page 5


It is well established that § 1983 does not abrogate the Eleventh Amendment, see Quern
v. Jordan, 440 U.S. 332, 341 (1979), and that Michigan has not consented to the filing
of civil rights suits against it in federal court. See Abick v. Michigan, 803 F.2d 874, 877
(6th Cir. 1986). We have consistently held that neither MDOC nor the parole board is
a “person” that may be sued for money damages under § 1983. See, e.g., Diaz v. Mich.
Dep’t of Corr., 703 F.3d 956, 962 (6th Cir. 2013) (finding MDOC immune from suit on
Eleventh Amendment grounds); Carson v. Mich. Parole Bd., 852 F.2d 1287 (6th Cir.
1988) (table) (finding the Michigan Parole Board immune from suit under § 1983 on
Eleventh Amendment grounds). For these reasons, the district court properly dismissed
those defendants from the case.

Commutation of the 1991 Sentence

        Harrison has provided no legal basis under Michigan state law for his request to
shorten his 1991 sentence to somehow rectify the error made with regard to his 1986
sentence, and we know of none. We therefore hold that the district court did not err in
dismissing this claim.

Timeliness of the Complaint

        With regard to the statute of limitations, however, the district court was mistaken
when it concluded that the controlling authority on the question of timeliness in
Harrison’s case was Wallace v. Kato, which involved a § 1983 claim for false arrest,
rather than for an invalid conviction or sentence. 549 U.S. at 389. The latter situation,
which forms the cause of action here, is instead controlled by the Supreme Court’s
opinion in Heck v. Humphrey, 512 U.S. 477 (1994). In that case, plaintiff Heck, a state
prisoner serving time for voluntary manslaughter, filed a § 1983 action in federal court
seeking damages for various constitutional violations that he alleged had occurred during
his prosecution. Id. at 479. The district court dismissed Heck’s § 1983 suit “because the
issues it raised ‘directly implicate the legality of [petitioner’s] confinement,’” id. at 479
(alteration in original), and the Seventh Circuit affirmed. See Heck v. Humphrey,
997 F.2d 355 (7th Cir. 1993).
No. 10-2185         Harrison v. State of Mich., et al.                                 Page 6


        The Supreme Court also affirmed the decision. It held 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 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, 28 U.S.C. § 2254.” Heck, 512 U.S. at 486-87 (emphasis added). As
a result, the Heck court said, “A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not cognizable under § 1983.”
Id. at 487. On the other hand, “if the district court determines that the plaintiff’s action,
even if successful, will not demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed to proceed, in the absence
of some other bar to the suit.” Id. (italics omitted).

        In this case, Harrison’s 1986 sentence has, in fact, been “declared invalid by a
state tribunal authorized to make such determination.” That favorable termination
occurred when the Michigan Court of Appeals reversed Harrison’s sentence in 2008,
holding that “[he] was improperly sentenced to consecutive terms for his convictions,”
and remanded the case for entry of a corrected judgment. People v. Harrison, 2008 WL
4276544, at *1. Harrison then filed the instant § 1983 suit in 2010, within Michigan’s
three-year statute of limitations. As a result, this federal action is not untimely.

        Contrary to the district court’s conclusion, Wallace v. Kato does not control this
case because here, it is not a false arrest that is challenged but an invalid sentence. In
Wallace, the Supreme Court held that a § 1983 cause of action for false arrest accrues
at the time of the arrest, because a “petitioner could have filed suit as soon as the
allegedly wrongful arrest occurred, subjecting him to the harm of involuntary detention.”
Wallace, 549 U.S. at 388. Hence, the Court ruled, “the statute of limitations would
normally commence to run from that date.” Id. By contrast, Heck established a delayed
accrual date in cases involving challenges to an invalid conviction or sentence:
No. 10-2185          Harrison v. State of Mich., et al.                               Page 7


          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. That
          makes it unnecessary for us to address the statute-of-limitations issue
          wrestled with by the Court of Appeals, which concluded that a federal
          doctrine of equitable tolling would apply to the § 1983 cause of action
          while state challenges to the conviction or sentence were being exhausted
          . . . . Under our analysis the statute of limitations poses no difficulty
          while the state challenges are being pursued, since the § 1983 claim has
          not yet arisen. Just as a cause of action for malicious prosecution does
          not accrue until the criminal proceedings 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.

Heck, 512 U.S. at 489-90 (citations and internal quotation marks omitted) (emphasis
added).

          The other case relied upon by the district court was Collyer v. Darling, 98 F.3d
211, 220 (6th Cir. 1996), which the court cited as authority for the proposition that
Harrison’s complaint was untimely because Harrison “knew of the injuries done to him
at the time they occurred,” as evidenced by his effort to have MDOC correct his 1986
sentence while it was being served. Harrison, 2010 WL 2925992, at *4. But Collyer
is plainly distinguishable. There the plaintiff was a state employee who brought a
§ 1983 action for wrongful discharge from employment, based on a due process claim
involving lack of both pre-deprivation and post-deprivation processes. The Collyer court
recognized that although state law determines what statute of limitations applies in a
§ 1983 case, federal law determines when the statutory period begins to run, Collyer,
98 F.3d at 220, and applied the standard rule in this circuit, holding that “the statute of
limitations period begins to run when the plaintiff knows or has reason to know that the
act providing the basis of his or her injury has occurred.” Id. (citing Friedman v. Estate
of Presser, 929 F.2d 1151, 1159 (6th Cir.1991)). Combining the accrual ruling in
Collyer with the holding in Wallace, the district court observed that Harrison knew of
his “false imprisonment” while incarcerated on the 1986 conviction and, therefore, that
No. 10-2185        Harrison v. State of Mich., et al.                            Page 8


the statute of limitations in his case began to run in 1990, when he was released from
imprisonment.

       But that analysis by the district court mixes apples with oranges and cannot be
correct, because we know from Heck that a damages claim for a wrongful criminal
conviction or sentence does not accrue until the conviction “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.” Heck, 512 U.S. at 487. Thus, if Harrison had brought a § 1983 suit
in 1990 when released from prison on the 1986 conviction, it would necessarily have
been dismissed for failure to state a claim, because Harrison’s 1986 conviction had not
yet been reversed or his sentence corrected. That did not happen until the Michigan
Court of Appeals ordered the state trial court to take such action in 2008. Before that
date, any claim that Harrison might have alleged asserting the invalidity of his 1986
conviction, regardless of the relief sought, would have been – in the words of the Heck
Court – “not cognizable under § 1983” for lack of a favorable termination. Id.

       In this case, however, the dissenting opinion posits that Heck’s favorable-
termination requirement is not applicable, based on what the dissent describes as a
“holding” set out by Justice Souter in his concurring opinion in Spencer v. Kemna,
523 U.S. 1 (1998). That case involved a habeas petition, brought by a prisoner who
claimed that his parole status had been wrongfully revoked, violating due process. The
Supreme Court held 8-1 that because Spencer was no longer in custody by the time the
district court addressed the merits of his action, and because parole revocation carried
no collateral consequences serious enough to support a post-release federal habeas
challenge, Spencer’s habeas claim was moot. Justice Souter “join[ed] the Court’s
opinion as well as the judgment,” but he took issue with the implication that Spencer
would be barred from bringing a § 1983 action against state officials for wrongful
confinement if, as a matter of law, he could no longer impugn the basis for that
confinement through a federal habeas action. 523 U.S. at 18 (Souter, J., concurring).
Justice Souter was joined in his comments by three of his colleagues on the Court. In
No. 10-2185             Harrison v. State of Mich., et al.                                             Page 9


addition, Justice Stevens, dissenting because he believed Spencer’s habeas claim was not
moot, dropped a footnote in his dissent, endorsing Justice Souter’s approach – the fifth
member of the court to do so. Id. at 25 n.8 (Stevens, J., dissenting).

         In the wake of Spencer, a circuit split has developed concerning the significance
of Justice Souter’s concurring opinion, with several circuits convinced that it must be
considered dictum because it was unnecessary to the holding of the case (i.e., that
Spencer’s habeas claim was moot),1 and other circuits, including our own, equally
convinced that because a majority of the Court endorsed it, the concurring opinion
created an exception to Heck’s favorable-termination requirement. See Powers, 501 F.3d
at 601. Hence, even though, in the 15 years since Spencer, the Supreme Court has never
recognized such an exception, we are bound by Powers and, therefore, must treat Justice
Souter’s “holding” as law. Nevertheless, Powers has no bearing on this case because,
as Justice Souter made clear in his concurrence in Spencer, the exception applies only
to those § 1983 litigants who are unable as a matter of law to satisfy Heck’s favorable-
termination requirement or, at least, those unable as a matter of law to satisfy it by means
of a federal habeas action. See 523 U.S. 1, 21 (Souter, J., concurring).2 Certainly, that
is how this court interpreted Justice Souter’s concurrence in Powers. 501 F.3d at 601
(“It seems unlikely that Justice Souter intended to carve out a broad Heck exception for

         1
           We recently noted in United States v. Stevenson, 676 F.3d 557, 562 (6th Cir. 2012), that dictum
consists of language that is not necessary to the holding, a traditional definition. It seems clear that Justice
Souter’s ruminations in his concurring opinion in Spencer were dicta. Because Justice Souter joined both
the Court’s opinion that Spencer’s habeas claim was moot and the judgment affirming the district court’s
decision to that effect, the question he raised about whether Spencer could nevertheless maintain a § 1983
action for damages was not only unnecessary to the holding of the case but could also be described as
purely hypothetical. At this point, however, we are bound by Powers v. Hamilton County Public Defender
Commission, 501 F.3d 592, 602-03 (6th Cir. 2007), in which the panel chose to treat the Souter
concurrence as establishing a rule of law, rather than dictum. As noted in the text, however, Powers
sharply limits the applicability of Justice Souter’s “holding” to cases involving prisoners who could not,
as a matter of law, seek habeas relief. Spencer thus has no bearing on this case.
         2
           In his concurrence in Spencer, Justice Souter appears to assume that the federal habeas statute
provides the only means of satisfying the Heck favorable-termination requirement. He posits, for example,
that “any application of the favorable-termination requirement to § 1983 suits brought by plaintiffs not in
custody would produce a patent anomaly: a given claim for relief from unconstitutional injury would be
placed beyond the scope of § 1983 if brought by a convict free of custody, . . . when exactly the same
claim could be redressed if brought by a former prisoner who had succeeded in cutting his custody short
through habeas.” Spencer, 523 U.S. at 21 (Souter, J., concurring). But Justice Souter’s formulation fails
to take into consideration the fact that plaintiffs who seek damages for wrongful conviction or sentencing
under § 1983 are, by definition, state prisoners – or ex-prisoners – suing state officials and, as a result,
can also secure favorable terminations in the state courts under state law, either by direct appeal or by post-
conviction litigation. See Heck, 512 U.S. at 487. That is, of course, precisely what occurred in this case.
No. 10-2185         Harrison v. State of Mich., et al.                             Page 10


all former prisoners. The better reading of [Souter’s] analysis [in Spencer] is that a
§ 1983 plaintiff is entitled to a Heck exception if the plaintiff was precluded ‘as a matter
of law’ from seeking habeas redress, but not entitled to such an exception if the plaintiff
could have sought and obtained habeas relief while still in prison but failed to do so.”)
Because the plaintiff in Powers was imprisoned “for at least one, but not more than thirty
days,” we concluded that he was precluded, as a matter of law, from seeking habeas
redress and, therefore, was entitled to take advantage of the exception in Spencer to
Heck’s favorable-termination requirement. In this case, however, Harrison was not
prevented from seeking habeas relief in prison by the brevity of his sentence. Nor was
he prevented by law from satisfying the favorable-termination requirement by other
means – as is evident by the fact that he succeeded in securing a favorable termination
before he brought this § 1983 suit. As a result, both Spencer and Powers are irrelevant
to Harrison’s claim.

        It should also be noted that in all of the cases recognizing and applying the so-
called Heck exception (including Spencer itself), the purpose was to allow the plaintiff
access to federal or state court to make his or her § 1983 case. See, e.g., Spencer,
523 U.S. at 21 (“[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.”) (Souter, J. concurring); Powers, 501 F.3d at 603 (“[T]he
favorable-termination requirement [sh]ould not be deployed to foreclose federal review
of asserted deprivations of federal right by habeas-ineligible plaintiffs.”); Leather v. Ten
Eyck, 180 F.3d 420, 424 (2nd Cir. 1999) (holding that plaintiff’s § 1983 action could
proceed despite non-compliance with the favorable-termination requirement); Nonnette
v. Small, 316 F.3d 872, 875-77 (9th Cir. 2002) (same); Harden v. Pataki, 320 F.3d 1289,
1298-99 (11th Cir. 2003) (same); Wilson v. Johnson, 535 F.3d 262, 267-68 (4th Cir.
2008) (same). It thus appears that the dissenting opinion in this case has turned the so-
called Heck exception on its head by using Justice Souter’s concurrence to deny Harrison
access to the court to pursue his § 1983 claim, rather than clearing the way for him to do
so, as all the circuits invoking a Heck exception have done.
No. 10-2185          Harrison v. State of Mich., et al.                          Page 11


          The dissent also contends that our opinion in Ruff v. Runyon, 258 F.3d 498 (6th
Cir. 2001), requires us to affirm the district court. To the contrary, however, we are
convinced that Ruff actually buttresses our analysis in this case, as well as the result.
Ruff and several of his fellow postal employees were convicted on the basis of
incriminating evidence fabricated by undercover informants, who had been hired as part
of an investigation by the United States Postal Service (USPS) to make controlled
purchases of illegal drugs from postal employees in Cleveland. Five USPS employees
were indicted in 1991 and, although convinced of their innocence, they pleaded guilty
to greatly reduced charges in state court and lost their jobs with the USPS as the result
of their convictions. In April 1995, one of the rogue informants admitted to having
framed the USPS employees, who then filed motions in state court to withdraw their
guilty pleas, based on proof that the indictments were procured by false information
presented to the grand jury. The state court granted the motions and ordered a new trial,
but the county prosecutor dismissed the charges with prejudice in March 1996.

          In August 1997, Ruff and his co-plaintiffs filed a suit against the Postmaster
General and other USPS officials in a Bivens action, the federal equivalent of a § 1983
action. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S.
388 (1971). The defendants responded with motions to dismiss the action as untimely
under the Ohio two-year statute of limitations. They argued that because the plaintiffs
had long since served their sentences and been released, under Spencer their claim
accrued in 1991, when they were indicted or, at the latest, in April 1995, when they
moved to withdraw their guilty pleas. Applying the standard rule in tort actions that the
statute of limitations does not begin to run until plaintiffs “knew or should have known
of their injury,” we nevertheless invoked Heck and held that “Plaintiffs’ injury – being
wrongfully convicted – was . . . not known until the charges against them were
dismissed.” Id. at 503. Because the action was filed within two years of that dismissal,
we remanded the case to the district court to permit the Ruff plaintiffs to proceed under
Bivens.
No. 10-2185        Harrison v. State of Mich., et al.                             Page 12


       In this case, the dissent cites Ruff for the proposition that “where a defendant is
no longer in custody and has knowledge of his injury, ‘the statute of limitations would
begin to run when the plaintiff has satisfied his term of imprisonment.’” Rogers, J.,
dissenting at ___ (quoting Ruff, 258 F.3d at 502). What the dissent fails to acknowledge,
however, is the Ruff court’s conclusion that even though the USPS employees knew as
a matter of fact that one of the informants had recanted his testimony against them at
least by April 1995, they did not “have knowledge of their injury,” as a matter of law,
until the prosecutor dropped all charges against them on March 26, 1996, when they
were no longer in custody. Id. at 503. It was only then that they achieved what Heck
refers to as a favorable termination. Applying the same logic to Harrison’s sentence
means that, even though he apparently learned that he was being held unlawfully while
still in prison, Harrison did not “have knowledge of his injury,” as a matter of law, until
September 16, 2008, when the Michigan Court of Appeals established that he had
suffered such an injury, thereby triggering the statute of limitations applicable to
Harrison’s § 1983 damages claim.

       Finally, the dissent fears that our holding opens the door for future § 1983
plaintiffs to “game the system” by choosing to wait until their release from custody to
launch an attack on their convictions rather than seeking judicial review while in prison,
thereby avoiding the procedural hurdles of federal habeas review. However, our concern
in Powers – preventing a collateral attack on a conviction via a § 1983 claim when the
plaintiff could have sought habeas review while in custody – does not apply here. True,
Harrison did not seek habeas review. Instead, he successfully utilized the Michigan
post-conviction process to set aside his wrongful sentence before filing this § 1983
action. No exception to the favorable-termination requirement needs to be invoked here
because Harrison actually achieved a favorable termination through post-conviction
relief. In short, Harrison is not gaming the system because he is not invoking § 1983 to
attack his invalid sentence – that invalid sentence has already been set aside.
No. 10-2185        Harrison v. State of Mich., et al.                          Page 13


                                    CONCLUSION

       Applying either the Ruff formulation of the accrual standard or the Supreme
Court’s mandate in Heck, the proper result here is plain: the statute of limitations
applicable to Harrison’s § 1983 complaint was not triggered until the Michigan Court
of Appeals issued its ruling in 2008. As a result, that complaint was timely when filed
in 2010, and Harrison is entitled to pursue his claim on the merits. We therefore
REVERSE the district court’s judgment and REMAND the case for further proceedings.
It appears to us that resolution of the remaining issues would be facilitated by the
appearance of lawyers for both parties in this litigation.
No. 10-2185        Harrison v. State of Mich., et al.                             Page 14


                                ___________________

                                     DISSENT
                                ___________________

       ROGERS, Circuit Judge, dissenting. The district court reached the correct result
in dismissing all of Harrison’s claims. The statute of limitations bars Harrison’s claims
against the non-state defendants to the extent he seeks relief based on the excess time
served for the 1986 conviction. The statute of limitations for filing a civil rights claim
in Michigan is three years. See Mich. Comp. Laws § 600.5805(10); Carroll v.
Wilkerson, 782 F.2d 44 (6th Cir. 1986) (per curiam). Harrison’s claims arising from his
1986 sentence accrued upon his release from prison in 1990. The instant suit, filed in
2010, is therefore untimely.

       Harrison argues that his claim did not accrue until the Michigan Court of Appeals
held, in 2008, that Harrison had been improperly sentenced, but he is incorrect. A
plaintiff’s § 1983 claim does not accrue until “the plaintiff has a complete and present
cause of action, that is, when the plaintiff can file suit and obtain relief.” Wallace v.
Kato, 549 U.S. 384, 388 (2007) (internal quotation marks and citations omitted). Heck
v. Humphrey, 512 U.S. 477 (1994), created a favorable-discharge rule, under which a
claim relating to “a conviction or sentence that has not been . . . invalidated is not
cognizable under § 1983.” Id. at 487. Heck established that a plaintiff seeking redress
under § 1983 “must prove that the conviction or sentence has been reversed on direct
appeal, expunged by executive order . . . or called into question by a federal court’s
issuance of a writ of habeas corpus.” Id. at 486-87. Heck did not “engraft an exhaustion
requirement upon § 1983, but rather den[ied] the existence of a cause of action” until the
plaintiff secures favorable discharge. Id. at 489. Were Heck the end of the inquiry,
Harrison’s § 1983 claim would not have accrued until he received the favorable
discharge from the Michigan Court of Appeals in 2008, and the instant claims therefore
would have been timely.

       The Heck rule is complicated, however, by the Supreme Court’s decision in
Spencer v. Kemna, and the holding reflected in Justice Souter’s concurrence. 523 U.S.
No. 10-2185           Harrison v. State of Mich., et al.                                    Page 15


1, 18–21 (1998) (Souter, J., concurring). Justice Souter indicated that the favorable-
termination requirement does not apply after a plaintiff/prisoner is released from
custody. Id. In those situations, Justice Souter reasoned, any habeas petition brought
by a plaintiff would be dismissed as moot. To bar § 1983 actions pending favorable
discharge, therefore, would immunize potentially unconstitutional behavior from federal
judicial review. Id. at 21. Justices O’Connor, Ginsburg and Breyer joined this
concurrence. Justice Stevens expressed approval for the position in a dissent, thereby
providing a majority of the Supreme Court. See id. at 25 n.8 (Stevens, J., dissenting).



        There is a circuit split regarding the interplay of Spencer and Heck, but we have
already determined that Justice Souter’s concurrence in Spencer is the law.1 See Powers
v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 602-03 (6th Cir. 2007). In
Shamaeizadeh v. Cunigan, we acknowledged that Spencer “clearly excludes from Heck’s
favorable termination requirement former prisoners no longer in custody.” 182 F.3d
391, 396 n.3 (6th Cir.1999). We have further recognized that where a defendant is no
longer in custody and has knowledge of his injury, “the statute of limitations would
begin to run when the plaintiff has satisfied his term of imprisonment.” Ruff v. Runyon,
258 F.3d 498, 502 (6th Cir. 2001) (internal quotation marks and citations omitted).
Applying this rule to Harrison, the statute of limitations began to run when he was
released from prison, making his current action untimely.

        The gloss on the Spencer rule provided in Powers, 501 F.3d at 601, does not
compel a different conclusion. In Powers, a defendant had been wrongly incarcerated
for one day. Id. The defendant argued that the Heck favorable-discharge rule did not
apply because he had been released from prison. Id. This court agreed that the
favorable-discharge rule did not apply, reasoning in part:




        1
          The Second, Fourth, Seventh, Ninth, and Eleventh Circuits have also accepted the Spencer
concurrence as law. See Huang v. Johnson, 251 F.3d 65, 75 (2d Cir. 2001); Wilson v. Johnson, 535 F.3d
262, 267–68 (4th Cir. 2008); Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir.1999); Nonnette v. Small,
316 F.3d 872, 876–77 (9th Cir. 2002); Harden v. Pataki, 320 F.3d 1289, 1298 (11th Cir. 2003).
No. 10-2185        Harrison v. State of Mich., et al.                             Page 16


       What is dispositive in Powers’s situation is not that he is no longer
       incarcerated, but that his term of incarceration—one day—was too short
       to enable him to seek habeas relief. It seems unlikely that Justice Souter
       intended to carve out a broad Heck exception for all former prisoners.
       The better reading of his analysis is that a § 1983 plaintiff is entitled to
       a Heck exception if the plaintiff was precluded “as a matter of law” from
       seeking habeas redress, but not entitled to such an exception if the
       plaintiff could have sought and obtained habeas review while still in
       prison but failed to do so. See, e.g., Guerrero v. Gates, 442 F.3d 697,
       705 (9th Cir. 2006) (holding that the plaintiff could not “now use his
       failure timely to pursue habeas remedies as a shield against the
       implications of Heck”) (internal quotation marks omitted).

Id. This language suggests that the Spencer exception is limited, and reflects a concern
that applying Spencer broadly would open the courthouse doors to every released
prisoner. To the extent that this language can be read to limit the scope of the Spencer
exception to Heck, the limit was not necessary to our holding in Powers, which applied
Spencer (rather than the limit).

       The policy animating the language in Powers, however, is not applicable in the
statute-of-limitations context. The Powers gloss reflects a need to prevent a defendant
from collaterally attacking a conviction where he had the opportunity to raise a habeas
claim but did not. To effectuate this purpose, Powers proposed limiting the Spencer
exception to instances where unconstitutional conduct could evade federal judicial
review as a matter of law. It is, therefore, contrary to the purpose of Powers to extend
the statute of limitations based on the Powers rule. In this case, allowing Harrison to use
his purported failure to qualify for a Spencer exception as a shield against the statute of
limitations would aggravate rather than allay the concern expressed in Powers. Were
we to allow Harrison’s claim, future plaintiffs could game the system—a prisoner could
avoid the procedural hurdles of federal habeas review by simply not filing a petition.
Where a defendant had the opportunity to file a habeas petition but did not, he cannot
use that tactical decision to excuse an untimely § 1983 claim.
