                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-2950
MARY JOHNSON,
                                             Plaintiff-Appellant,
                                v.

JOHN DOSSEY, HANOVER PARK POLICE DEPARTMENT,
RONALD MOSER, VILLAGE OF HANOVER PARK,
KEVIN LAUDE, DUPAGE COUNTY STATE’S ATTORNEY,
JOSEPH BIRKETT, COUNTY OF DUPAGE, DENNIS ROGERS,
DUPAGE COUNTY FIRE INVESTIGATION TASK FORCE,
DUPAGE COUNTY SHERIFF ’S OFFICE, JOHN ZARUBA,
JOHN RAYBURN, DROPKA & RAYBURN FIRE INVESTIGATION,
INC., KEVIN MCMAHON, and THE ALLSTATE CORPORATION
a/k/a ALLSTATE INSURANCE COMPANY,
                                          Defendants-Appellees.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
          No. 06 C 787—Charles R. Norgle, Sr., Judge.
                         ____________
 ARGUED DECEMBER 3, 2007—DECIDED FEBRUARY 12, 2008
                    ____________


 Before BAUER, EVANS, and SYKES, Circuit Judges.
  EVANS, Circuit Judge. In March 2002, the house Mary
Johnson was leasing in Hanover Park, Illinois, sustained
severe fire damage. Johnson submitted a claim for her
losses to her insurer, The Allstate Insurance Company.
2                                               No. 06-2950

Rather than having her claim paid, however, Johnson
was arrested five months later and charged with arson.
She was in jail for about a month before she posted bail. In
January 2004, she was tried and convicted. She was
sentenced to 9 1/2 years in prison, where she remained
from January 23, 2004, through February 10, 2005,
when her court-appointed counsel discovered a previously
undisclosed exculpatory report of the DuPage County
Fire Investigation Task Force. Based on the report, she
filed a motion for a new trial, a request which was
granted. She was released from custody, and in Septem-
ber 2005, following a new trial, she was acquitted. Pursu-
ant to 42 U.S.C. § 1983, Johnson sued a number of
defendants—including Hanover Park and its police
department, the DuPage County state’s attorney, the
DuPage County Fire Investigation Task Force, Dropka &
Rayburn Fire Investigation, Inc., The Allstate Insurance
Company, and others. The defendants filed various
motions to dismiss the case, in response to which Johnson
filed a motion to amend her complaint. Ultimately, the
district judge dismissed the case. He said there was
probable cause to arrest Johnson and that the statute of
limitations had run out on her § 1983 claim. The pendent
state law claims were dismissed as well. He also denied
the request to amend. Johnson appeals.
  We will return to the facts in more detail after we
explain why the facts to which we return must be derived
from Johnson’s amended complaint. As relevant here,
Rule 15(a) of the Federal Rules of Civil Procedure pro-
vides that a “party may amend the party’s pleading once
as a matter of course at any time before a responsive
pleading is served . . . .” A motion to dismiss the complaint
is not a responsive pleading. Crestview Vill. Apartments v.
U.S. Dep’t of Hous. and Urban Dev., 383 F.3d 552 (7th Cir.
2004); Duda v. Franklin Park Pub. Sch. Dist. 84, 133
F.3d 1054 (7th Cir. 1998). When an amended complaint
No. 06-2950                                              3

is filed, the prior pleading is withdrawn and the amended
pleading is controlling.
  In this case, no responsive pleading has ever been filed.
Johnson therefore had a right to file an amended com-
plaint. There was no need for her to file a motion to amend
her pleading, and in fact her doing so may have caused
some confusion.
   Confusion aside, the amended pleading should have been
filed, and it controls the remainder of our discussion,
which continues because, although we have said that the
right to amend is “absolute,” see Peckham v. Scanlon, 241
F.2d 761 (7th Cir. 1957), we have acknowledged one
exception. A district court need not allow the filing of an
amended complaint, even when no responsive pleading
has been filed, if it is clear that the proposed amended
complaint is deficient and would not survive a motion to
dismiss. Duda; Mitchell v. Collagen Corp., 67 F.3d 1268
(7th Cir. 1995). As we said in Duda,
   Rather than simply reverse the judgment and
   remand the case to the district court, consider-
   ations of judicial economy counsel that we scruti-
   nize the amended complaint at this stage of the
   proceedings and determine its viability.
At 1057. With that principle in mind, we will look at the
amended complaint to see whether filing it would be
an exercise in futility.
  Johnson’s amended complaint sets forth claims under
42 U.S.C. § 1983 and state tort law—false imprison-
ment, malicious prosecution, and conspiracy. We, of course,
take the facts as she alleges them. Conley v. Gibson, 355
U.S. 41 (1957). The defendants in the amended complaint
are John Dossey, a Hanover Park police officer; Dennis
Rogers, an officer with the DuPage County sheriff ’s
department; Kevin Laude, an assistant state’s attorney
4                                               No. 06-2950

for DuPage County; John Rayburn a certified fire investi-
gator employed by defendant Dropka & Rayburn Fire
Investigation, Inc., and Kevin McMahon, an insurance
claims investigator who is an agent of defendant The
Allstate Corporation a/k/a Allstate Insurance Company.
Essentially, Johnson alleges that the defendants con-
spired to deny her insurance claims by prosecuting her
(or having her prosecuted) for arson even though they
were in possession of documents which cast significant
doubt on any contention that the fire which destroyed the
home was caused by arson.
  Right after the fire, on March 26, 2002, Johnson was
interviewed by Officers Dossey and Rogers, and the same
day she made a claim for loss to her insurer, Allstate. A
few days later, Rogers discussed the investigation with
McMahon, Allstate’s claims adjuster. Then McMahon
and Rayburn, on behalf of Allstate, inspected the property
but did not take any evidence from the scene. Also,
McMahon interviewed Johnson regarding her claim. On
April 5, the DuPage County Fire Investigation Task Force
issued its report indicating that the cause and origin of
the fire were undetermined and that, after a thorough
search, no flammable or combustible accelerants which
could have triggered the fire were found. Dossey, Rogers,
Laude, McMahon, and Rayburn met and made a joint
decision to disregard the findings of the task force. At this
point, Rayburn returned to the scene of the fire and
collected samples, which were submitted to Great Lakes
Analytical, Inc. for analysis. The report was provided to
the other defendants.
  Allstate denied Johnson’s claim and, in turn, her attor-
ney sent a letter to Allstate raising issues of bad faith.
Meanwhile, McMahon was in communication with law
enforcement personnel regarding the investigation. The
results of both the law enforcement investigation and
Allstate’s investigation remained inconclusive. Neverthe-
No. 06-2950                                              5

less, Johnson was arrested and charged with arson on
August 13, 2002, even though there was no probable
cause to believe that a crime had been committed. She
accuses Dossey of lying to the grand jury when he know-
ingly testified falsely that the lab analysis showed that
charcoal lighter fluid was used to start the fire. She
says the criminal prosecution of her was instigated by
Allstate, who wanted to deny her claim for damages
under its insurance policy.
  Because federal jurisdiction is dependent on the § 1983
claims, we will look at them first. The essence of the
claims is that withholding the task force report was a
violation of Johnson’s due process rights, as set out
long ago in Brady v. Maryland, 373 U.S. 83 (1963). Brady
held that the suppression of evidence favorable to the
accused violates due process where the evidence is mate-
rial either to guilt or to punishment. Clearly the amended
complaint sufficiently alleges a Brady violation. Running
through the briefing in this case, though, is the argu-
ment, relied on by the district court in dismissing the
original complaint, that Johnson’s claims are barred by
the 2-year Illinois statute of limitations set out in 735
Ill. Comp. Stat. 5/13-202. That is the applicable statute
of limitation, but defendants misapprehend the appro-
priate accrual date for Johnson’s cause of action.
  The defendants base their statute of limitations argu-
ment on Wallace v. Kato, 127 S. Ct. 1091 (2007). That case,
however, deals with the accrual date of a § 1983 claim
for false imprisonment which, the court said, was the
date on which the defendant appeared before a magistrate
and was bound over for trial. A Brady claim, on the other
hand, is not controlled by Wallace but rather by Heck v.
Humphrey, 512 U.S. 477 (1994). Heck involved a claim
of malicious prosecution which, if the plaintiff prevailed,
would render the criminal conviction invalid. The Court
differentiated between actions under § 1983 and those
6                                               No. 06-2950

for habeas corpus and determined that a civil tort action
was not the proper vehicle for challenging the validity
of criminal judgments:
    in order to recover damages for allegedly unconsti-
    tutional 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 tribu-
    nal 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.
At 486-87 (footnote omitted).
  It follows, then, that the claim based on a Brady viola-
tion did not accrue until Johnson was acquitted on Sep-
tember 2, 2005. Her complaint here was timely filed on
February 10, 2006.
  Various defendants present separate issues. The private
defendants can be subject to a § 1983 action only if
they conspired with the state actors to violate Johnson’s
civil rights. The conspiracy allegations are clearly suffi-
cient against McMahon and Rayburn.
  The corporate defendants require a bit more attention.
Both claim to be sued solely under a theory of respondeat
superior or vicarious liability. Like public municipal
corporations, they cannot be sued solely on that basis:
a “private corporation is not vicariously liable under § 1983
for its employees’ deprivations of others’ civil rights.”
Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir.
1982); see also Jackson v. Illinois Medi-Car, Inc., 300 F.3d
760 (7th Cir. 2002). However, like a municipality, a private
corporation can be liable if the injury alleged is the
result of a policy or practice, or liability can be “demon-
No. 06-2950                                                 7

strated indirectly ‘by showing a series of bad acts and
inviting the court to infer from them that the policy-
making level of government was bound to have noticed
what was going on and by failing to do anything must have
encouraged or at least condoned . . . the misconduct of
subordinate officers.’ ” Woodward v. Corr. Med. Servs., 368
F.3d 917, 927 (7th Cir. 2004). As to municipalities,
we have said that “the complaint must allege that an
official policy or custom not only caused the constitutional
violation, but was ‘the moving force’ behind it.” Estate of
Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 514
(7th Cir. 2007), quoting City of Canton, Ohio v. Harris,
489 U.S. 378, 389 (1989). A policy may be found if the
constitutional injury was caused “by a person with final
policymaking authority.” Sims, at 515.
  The allegations against Allstate are that, after Johnson
raised issues of bad faith, the “criminal prosecution of . . .
JOHNSON, was instigated, in part, by . . .
ALLSTATE . . . .” There is also reference to the Allstate
investigation of the fire. And more tellingly, there is an
allegation that Allstate paid for the expert witnesses to
testify at Johnson’s criminal trial. These are direct allega-
tions against the company. It cannot be said that the only
allegations against Allstate are based on its vicarious
liability for McMahon’s actions.
  It is true that there are also allegations that McMahon
acted as the agent or employee of Allstate. However, this
is not the familiar situation in which the only allega-
tions against the municipality (or the company) are
that its employee committed a constitutional violation
for which the company is alleged to be vicariously liable.
It is a vastly different allegation to say that an agent of
the company committed a violation on behalf of the
company than to say that the employee committed a
violation about which the company may not even have
known, but for which the company is vicariously liable.
8                                             No. 06-2950

Here, the allegation is that McMahon was doing Allstate’s
bidding, not his own. It is highly unlikely that McMahon
paid the expert witness. Allstate did that. Payment of
an expert witness almost by definition had to be done
by someone with authority. The allegations include, in
effect, that Allstate is the moving force behind the vio-
lations. There is nothing inherently futile about these
claims.
  Dropka & Rayburn presents a closer question, but again
there are allegations that implicate the company itself.
There is an allegation that the company conspired with
law enforcement personnel to deny Johnson’s constitu-
tional rights. In addition, as with McMahon, Rayburn is
alleged to have acted as the direct agent of the company;
in other words he was the company. We cannot say
the allegations are futile. Accordingly, the company can’t
get out of this case at this time.
  Assistant state’s attorney Laude claims that he has
absolute immunity from suit. We find, however, that the
allegations are that Laude was part of the investigaion
of the fire and of a conspiracy that targeted Johnson. He
may claim, as can the other investigators, a qualified, but
not an absolute, immunity. Buckley v. Fitzsimmons, 509
U.S. 259 (1993).
  We turn to the pendent state law claims of malicious
prosecution, false arrest, and false imprisonment. Relying
on Wallace v. Kato, the defendants argue that the
claims are time-barred. At least two things prevent us
from agreeing. Wallace involved the accrual date for a
claim of false arrest and false imprisonment, but not as
to state law accrual dates. The Court specifically stated
that, while the statute of limitations in § 1983 cases
is derived from the analogous state law, the “accrual
date of a § 1983 cause of action is a question of federal
law that is not resolved by reference to state law.” 127
No. 06-2950                                            9

S. Ct. at 1095. Wallace has no effect on Illinois law.
Secondly, Ms. Johnson has specifically alleged that
limitations tolling provisions in Illinois law—§ 13-215—
Fraudulent Concealment, and the doctrine of equitable
tolling—are relevant to her claims. The allegations are
sufficient to escape a finding of futility.
  Accordingly, the judgment of the district court is
REVERSED and the case is REMANDED for further proceed-
ings. Rule 36 shall apply on remand.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                 USCA-02-C-0072—2-12-08
