                  NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                             File Name: 05a0169n.06
                               Filed: March 3, 2005
                                    No. 03-3296

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                             )
                                             )
ALBERT HODGE                                 )
                                             )               ON APPEAL FROM THE UNITED
       Plaintiff-Appellant,                  )               STATES DISTRICT COURT
                                             )               FOR THE NORTHERN DISTRICT
v.                                           )               OF OHIO AT CLEVELAND
                                             )
CITY OF ELYRIA, et al,                       )               OPINION
                                             )
       Defendants-Appellees.                 )
                                             )



Before: MERRITT and DAUGHTREY, Circuit Judges, and NIXON, District Judge.*

       JOHN T. NIXON, District Judge. Plaintiff-Appellant Albert Hodge (“Plaintiff” or

“Hodge”) appeals the decision of the district court dismissing his claim of excessive force

brought pursuant to 42 U.S.C. § 1983 as untimely. The issue presented for our review concerns

when the statute of limitations on Hodge’s excessive force claim began to run. For the reasons

stated herein we hold that the statute of limitations on Appellant’s § 1983 claim began to run at

the time of his arrest, when he alleges the excessive force was used against him. As such,

Hodge’s claim was brought after the applicable two-year statute of limitations had passed.

Accordingly, we AFFIRM the district court’s ruling dismissing Hodge’s § 1983 claim as


       *
        The Honorable John T. Nixon, United States District Judge for the Middle District of
Tennessee, sitting by designation.

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untimely.


                                       I. BACKGROUND

       Plaintiff-Appellant Albert Hodge was driving his car through an apartment complex in

Elyria, Ohio on or about August 12, 2000, when he was stopped by City of Elyria Police Officers

Michael Fairbanks and Paul Lesner after he ran a stop sign. Plaintiff was ordered out of his

vehicle by the officers. When questioned by the officers, Plaintiff could not answer because he

had something in his mouth that appeared to Officer Lesner to be crack cocaine. After the

officers asked him what was in his mouth, Hodge turned away from the officers and attempted to

swallow the substance in his mouth. Officer Lesner told Hodge to stop and spit it out. Then,

after Hodge denied swallowing drugs, he was handcuffed and placed under arrest. While he was

handcuffed, Hodge claims he was choked, forced to the ground, and kneed until he coughed up

blood. As a result of this alleged assault, Hodge required surgery for fractured ribs and a torn

rotator cuff. After being advised of his Miranda rights, Hodge agreed to a urinalysis which

tested positive for cocaine.

       On October 18, 2000, Plaintiff was indicted in the Lorain County Court of Common

Pleas on charges of tampering with evidence, pursuant to Ohio Rev. Code § 2921.12(A)(1), and

possession of drugs, pursuant to Ohio Rev. Code. § 2925.11(A). On April 24, 2001, Plaintiff

pled no contest to the charges, and was sentenced to probation. On August 27, 2001, Hodge

filed a notice of appeal. His conviction was affirmed by the Ohio Ninth District Court of

Appeals on February 20, 2002. Hodge then filed the current complaint on August 27, 2002,

against the City of Elyria, Elyria Police Chief Michael Medders, and Elyria Police Officers

Fairbanks and Lesner (collectively “Defendants”), under 42 U.S.C. § 1983 (“§ 1983"), alleging

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that the search conducted by the Elyria police was unconstitutional and that the force used in

stopping and arresting him was excessive.

       Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) or, in the alternative, a motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56, to which Plaintiff filed a motion in opposition. On January 15, 2003, the district

court granted Appellees’ motion to dismiss Hodge’s unconstitutional search and his excessive

force claims. In dismissing Hodge’s unconstitutional search claim, the Court relied on the

Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme

Court held, “in order to recover damages for allegedly unconstitutional . . . 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 . . ..” Heck, 512 U.S. at 486-87. As

the Ohio Ninth District Court of Appeals upheld Hodge’s criminal conviction, and that

conviction still stands, the district court was correct in stating that Hodge is not eligible for

damages related to the search that supported his conviction.

       The district court correctly dismissed Hodge’s unconstitutional search claim without

prejudice, mindful of the fact that if Hodge is able to get his conviction reversed or otherwise

expunged in the future, Hodge could then re-assert this claim. In so holding, the lower court

relied on Shamaeizadeh v. Cunigan, 182 F.3d 391, 396 (6th Cir. 1999), which held that “a cause

of action under § 1983 that would imply the invalidity of a conviction does not accrue until the

conviction is reversed or expunged, and therefore the statute of limitations does not begin to run

until such an event occurs, if ever.”

       With regard to Hodge’s excessive force claim brought pursuant to § 1983, the lower court


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found that because Hodge’s excessive force claim does not rely on the validity of his conviction,

the claim is immediately cognizable. See Washington v. Summerville, 127 F.3d 552, 556 (7th

Cir. 1997). After concluding that Heck would not barr Hodge from asserting his excessive force

claim, the Court noted that a § 1983 claim in Ohio is governed by a two-year statute of

limitations, pursuant to Ohio Rev. Code § 2305.10. The lower court concluded that Hodge’s

excessive force claim accrued on August 12, 2000, the day that he was arrested, and that as

Hodge did not file his complaint until August 27, 2002, his claim was untimely under Ohio’s

two-year statute of limitations. In so finding, the lower court dismissed Hodge’s excessive force

claim with prejudice.

       Plaintiff has now appealed the lower court’s ruling on his excessive force claim, arguing

that the district court erred in applying Heck to this case. We review de novo a district court's

grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Tahfs v. Proctor,

316 F.3d 584, 590 (6th Cir. 2003).



                                        II. DISCUSSION

       Plaintiff concedes that his § 1983 claims are governed by Ohio’s two-year statute of

limitations. The issue before us now is when this statute began to accrue on Hodge’s § 1983

claim of excessive force claim. The question of when the statute of limitations beings to run is

governed by federal law. Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001) (citing Wilson v.

Garcia, 471 U.S. 261, 268-71 (1985)). “Under federal law the statute begins to run when

plaintiffs knew or should have known of the injury which forms the basis of their claims.” Id.

(citations omitted). We must look at when the harm in question occurred, guided by the


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principle that “a plaintiff has reason to know of his injury when he should have discovered it

through the exercise of reasonable diligence. Sevier v. Turner, 742 F.2d 262, 273 (6th Cir.1984)

(citing Briley v. California, 564 F.2d 849, 855 (9th Cir. 1977)).

       Hodge argues in his brief that his permanent injury was not revealed to him until

November 2000. We disagree. As the Seventh Circuit has held, when asserting a claim under §

1983 for the use of excessive force, the “injury” occurs on the date of the constitutional injury,

the date the allegedly excessive force is used. Washington, 127 F.3d at 556-57. Plaintiff claims

that on the date of his arrest, August 12, 2000, while he was handcuffed, he was choked and

forced to the ground by the arresting officers, and kneed and choked until he coughed up blood.

These acts constitute the alleged constitutional injury. Regardless of whether Hodge realized the

precise nature or extent of his physical injuries at that time, or not until November 2000, as he

asserts, the constitutional injury of excessive force alleged occurred on August 12, 2000.

       Plaintiff relies on Shamaeizadeh v. Cunigan, 182 F.3d 391 (6th Cir. 1999), and Ruff v.

Runyon, 258 F.3d 498 (6th Cir. 2001), and argues that the statute of limitations on § 1983 cases

begins to run at the conclusion of the criminal case. Thus, Plaintiff concludes, since his criminal

case was not concluded until February 20, 2002 when the Ninth District Court of Appeals upheld

his conviction, his claim of excessive force filed August 27, 2002 was timely.

       In Shamaeizadeh, the Plaintiff Ali Shamaeizadeh sued the police department and officers

pursuant to § 1983 alleging an illegal search of his home by state officials, after which

Shamaeizadeh and others were charged with drug and weapons crimes. The criminal charges

against Shamaeizadeh were eventually dismissed. Shamaeizadeh subsequently filed his § 1983

action, and the district court ruled that his claim was barred by the statute of limitations. A panel


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of this court reversed, relying on Heck, and held that the statute of limitations did not begin to

run until the criminal charges were dismissed. The Supreme Court in Heck held, “in order to

recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm

caused by action whose unlawfulness would render a conviction or sentence invalid, a § 1983

plaintiff must prove that the conviction or sentence has been reversed . . ..”Heck, 512 U.S. at

486-87.

          The Shamaeizadeh court acknowledged that Heck did not address the statute of

limitations issue, but found that the concerns underlying the decision in Heck led clearly to the

proper analysis of this issue. According to the Sixth Circuit, the Supreme Court’s ruling in Heck

evinced a concern that allowing a plaintiff to bring a § 1983 claim for harm whose unlawfulness

would render a conviction or sentence invalid would necessarily have the effect of impugning

the validity of a future or outstanding criminal conviction. We held in Shamaeizadeh, “it is only

appropriate that the statute of limitations not begin to run for criminal defendants seeking to file

the same § 1983 claims until the disposition of any pending criminal proceedings. After the

disposition of the criminal proceedings, if the § 1983 claim may go forward under Heck, the

plaintiff may seek all damages related to the allegedly illegal search.” Shamaeizadeh, 182 F.3d

at 399.

          Plaintiff fails to recognize that the concerns of Heck are not implicated by his § 1983

claim alleging excessive force because, regardless of the outcome of the claim, whether the

Defendants are found to have used excessive force or not, the validity of Hodge’s criminal

conviction will not be effected. Hodge’s conviction related to drug possession and tampering

with evidence, charges wholly unrelated to excessive force. As such, Heck does not create a bar


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to this claim proceeding, and the statute of limitation begins to run as of the date when the

plaintiff knew or should have known of the injury which forms the basis of his claims. As stated

above, August 12, 2000, the date of Hodge’s arrest and the date he claims the officers used

excessive force in arresting him, is the date on which the two-year statute of limitations began to

run.

          Hodge also relies on Ruff v. Runyon, 258 F.3d 498 (6th Cir. 2001), in support of his

argument that the statute of limitations does not accrue until the final determination of the

criminal proceedings.. In Runyon, a group of former employees of the United States Postal

Service made constitutional tort claims under Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Investigation, 403 U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”). They

asserted that in an internal investigation of possible drug activities, Defendants illegally targeted

African-American postal workers, and excluded Caucasian employees from the investigation.

Based on information from informants, the Plaintiffs were indicted on multiple drug charges, and

pleaded guilty, although believing themselves innocent, to receive lesser charges and fewer

counts.

          Eventually, the informant was exposed as having wrongly implicated the Plaintiffs, and

the charges against them were dismissed. After Plaintiffs brought their Bivens and FTCA

claims, the Magistrate Judge assigned to the matter dismissed the claims, finding that they were

barred by the applicable statute of limitations. The Magistrate Judge concluded that Plaintiffs’

claims accrued when they filed their motions to withdraw their guilty pleas in state court, since

that was when they knew that the indictments were based on false information. A panel of this

court reversed, and held in reliance on the holding in Shamaeizadeh, that the statute of


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limitations will not accrue “until the disposition of any pending criminal charges.” Runyon, 258

F.3d at 502.

       Again, Hodge fails to appreciate the distinction between the situation before us in Runyon

and that presented by his case. While Runyon dealt with a Bivens claim rather than a § 1983

claim, we held in Runyon that our holding in Shamaeizadeh, regarding the accrual of the statute

of limitations for § 1983 claims, applies with equal force to Bivens claims. In Runyon we held

that the Plaintiffs’ claims began to accrue only after the charges against them were dismissed

because prior to that point, Plaintiffs did not “know” of their injury for the purposes of the statute

of limitations. Furthermore, in Runyon, the Plaintiffs’ Bivens claim alleged the injury of a

wrongful conviction. Clearly, a claim challenging the validity of Plaintiffs’ conviction would

have the effect of presenting a “collateral attack on pending or outstanding state convictions or

sentences,” as was the Supreme Court’s concern in Heck. Id. Hodge’s excessive force claim,

though, does not implicate the concerns of Heck. As stated above, regardless of whether

Hodge’s excessive force claim is successful, there will be no effect on the status or validity of his

conviction. Thus, unlike in Runyon, here Hodge’s § 1983 claim began to accrue when he first

knew of the constitutional injury, or August 12, 2000.



                                       III. CONCLUSION

         Plaintiff’s § 1983 claim for excessive force does not call into question the validity of his

conviction, and as such, is not barred by Heck. Accordingly, Hodge’s claim began to accrue on

the date when he first knew of the alleged constitutional injury, the day of his arrest. Because

Plaintiff filed his claim on August 27, 2002, over two years after the incident in question, his

claim is barred by Ohio’s two-year statute of limitations. The decision of the district court is


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AFFIRMED.




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