The Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994) held that a §1983 constitutional claim that "necessarily" implies the invalidity of the plaintiff's conviction is not "cognizable" unless the conviction was overturned on appeal, collateral review, or executive order. The Heck doctrine has had a major impact on §1983 litigation and has generated numerous difficult issues. This column will focus on two important recent circuit court decisions applying the doctrine, Roberts v. City of Fairbanks, 947 F.3d 1181 (9th Cir. 2020) and Savory v. Cannon, 947 F.3d 409 (7th Cir. 2020) (en banc).

Background

The decision in Heck v. Humphrey was based primarily on the principles and policies underling the "favorable termination" element of a common-law malicious prosecution claim. Favorable termination in malicious prosecution law is generally defined to mean termination with affirmative indications of innocence. Lanning v. City of Glens Falls, 908 F.3d 19 (2d Cir. 2018). The favorable termination element of a malicious prosecution claim avoids parallel litigation over the validity of a conviction and the danger of conflicting decisions in the criminal prosecution and civil tort action. The Heck court referenced "the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Heck, 512 U.S. 486.

The Heck doctrine is strong medicine. As a strong general rule, §1983 does not require the exhaustion of state judicial or administrative remedies. Monroe v. Pape, 365 U.S. 167 (1961) (judicial remedies); Patsy v. Board of Regents Florida, 457 U.S. 496 (1982) (administrative remedies); see Heck, 512 U.S. at 483 ("§1983 contains no exhaustion requirement beyond what Congress has provided."). But Heck is not a mere exhaustion rule: When a §1983 plaintiff's claim is subject to Heck and the plaintiff's conviction was not overturned, the claim is not "cognizable at all." Heck, 512 U.S. at 489.

A §1983 plaintiff's failure to satisfy Heck's favorable termination requisite results in dismissal of her claim, albeit usually without prejudice. Section 1983 litigators, therefore, generally view Heck as primarily a pro-§1983 defendant doctrine. In recent years, however, an increasing number of §1983 plaintiffs have been invoking Heck in an effort to head off a statute of limitations defense by arguing for a delayed accrual date. This happens so frequently that courts and litigators often refer to the Heck "deferred accrual rule," clearly a pro-plaintiff concept.

'Roberts'

Among the many difficult issues generated by Heck is whether the Heck requirement that the plaintiff's conviction was overturned is identical to the common-law malicious prosecution "favorable termination" element. The Ninth Circuit recently addressed this issue in Roberts v. City of Fairbanks, 947 F.3d 1191 (9th Cir. 2020). The four §1983 plaintiffs in Roberts asserted §1983 claims, including Brady and malicious prosecution claims. The defendants argued that because these claims necessarily implicated the validity of plaintiffs' convictions, they were non-cognizable under Heck.

Section 1983 Brady and malicious prosecution claims invariably do , by their nature, attack the plaintiff's conviction. But, prior to the commencement of the §1983 action, the plaintiffs had entered into a settlement agreement with the state of Alaska providing:

(1) the parties jointly stipulated to request the state court to vacate the plaintiffs' convictions;

(2) the "parties have not reached agreement as to [plaintiffs'] actual guilt or innocence"; and

(3) the original jury verdicts and judgments of conviction were validly entered based on proof beyond a reasonable doubt.

Pursuant to the agreement, the state court vacated the plaintiff's' convictions, the prosecutors dismissed the indictments, and the plaintiffs who were still imprisoned were released. There were no further prosecutions of the plaintiffs. 947 F.3d at 1195.

The circuit court held, 2-1, that the state court's vacation of the plaintiff's' convictions satisfied Heck. The court reasoned: "Because all convictions … were vacated and underlying indictments ordered dismissed, there remain[ed] no outstanding criminal judgment nor any charges pending against Plaintiffs. The absence of a criminal judgment here renders the Heck bar inapplicable; the plain language of [Heck] requires the existence of a conviction in order for a §1983 suit to be barred." 947 F.3d at 1198.

This result held even though the settlement agreement confirmed the validity of the original convictions and sentences. In other words, although the settlement agreement and the vacation of plaintiffs' convictions did not constitute the "affirmative indications of innocence" necessary to constitute favorable termination for the purpose of a malicious prosecution claim, the state court's vacation of the plaintiffs' convictions satisfied Heck. Roberts, 947 F.3d at 1201 ("Heck's favorable-termination requirement is distinct from the favorable-termination element of a malicious-prosecution claim.") (citations omitted). See also McDonough v. Smith, 139 S. Ct. 2149, 2158, 2160 n.10 (2019). The dissent in Roberts found that the plaintiffs did not satisfy Heck because they failed to have their convictions declared invalid, "but instead reached an agreement with the state to vacate their convictions." 947 F.3d at 1215 (dissenting opinion). The majority responded that the dissent's position improperly conflated malicious prosecution favorable termination with Heck favorable termination, that is, with Heck's articulation of the means for overturning a conviction. The upshot of Roberts v. City of Fairbanks is that Heck favorable termination and malicious prosecution favorable termination, while obviously related concepts, are separate concepts.

'Savory'

In Roberts, the Heck doctrine was invoked by the §1983 defendants defensively in an attempt to have the §1983 claims rendered non-cognizable. In Savory v. Cannon, 947 F.3d 409 (7th Cir. 2020), the plaintiff invoked the Heck doctrine offensively in an attempt to delay the accrual of his §1983 claim for relief, and the defendants countered that Heck was inapplicable.

Johnnie Lee Savory was incarcerated for 30 years for a double murder he claimed he did not commit. After serving 30 years of a 40-80 year sentence of imprisonment, he was paroled in 2006. Five years later the governor of Illinois commuted the remainder of his sentence, thereby terminating his parole and custody, but leaving his conviction in place. On Jan. 12, 2015, the governor pardoned Savory and declared him "acquitted and discharged from all further imprisonment."

Savory filed his §1983 action in federal district court in Illinois on Jan. 11, 2017. The complaint alleged constitutional claims based on coercing a false confession from Savory; malicious prosecution; and denial of a fair trial. In Illinois, the governing limitations period for §1983 claims is two years. But when did Savory's claims accrue? Accrual of a §1983 claim is a matter of federal law, which inquires when the plaintiff had a "complete and present" cause of action. McDonough, 138 S. Ct. at 2155. Of course, a claim that is non-cognizable under Heck cannot be a "complete and present" cause of action.

The §1983 defendants argued that Savory's §1983 claims were untimely because they accrued back in 2011 when the governor commuted the remainder of Savory's sentence and he was no longer in custody. The defendants reasoned that this lifted the Heck bar because, once Savory was released from custody, he could no longer bring a federal habeas corpus proceeding. In other words, the defendants argued that Heck does not apply when the plaintiff does not have access to federal habeas corpus. Savory countered that the Heck bar continued to apply even after he was released from custody until the Governor pardoned him in 2015, and that his claims did not accrue until that time.

Analysis

What is going on here is very interesting. The defendants are arguing for a narrower scope of Heck in order to secure dismissal on statute of limitations grounds, while the plaintiff is advancing a broader view of Heck in order to delay the accrual of his §1983 claims for relief.

The issue, then, is whether the Heck doctrine is inapplicable when a §1983 plaintiff cannot pursue federal habeas corpus because he is not in custody. A §1983 plaintiff who challenges her conviction might not be in custody because she was, for example, only fined, subject to a short term of imprisonment, or completed a lengthy term of imprisonment. (Note that a person who is paroled is considered to be "in custody.").There is dicta in Heck stating that the Heck doctrine "is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated." Heck, 512 U.S. at 490 n. 10 (disagreeing with Justice Souter's concurrence). However, in Spencer v. Kemna, 523 U.S. 1, 21, 25 n.18 (1998), five Justices (Souter, Stevens, O'Connor, Ginsburg and Breyer) in concurrences and dissents advanced the view that §1983 plaintiffs who are not "in custody" should not be subject to the Heck doctrine. In the great majority of cases in which this issue has arisen, it has been the §1983 plaintiff who has invoked the position of the Spencer five in attempting to escape a holding of non-justiciability, but in Savory it was the §1983 defendants who took that position.

Whether the Heck doctrine applies to a §1983 who is not in custody is a sticky issue that has generated a variety of positions in the circuits. See Martin A. Schwartz, Vol. 1B, Section 1983 Litigation: Claims and Defenses, §10.06 (4th ed. Wolters Kluwer 2020). The Second Circuit has expressed agreement with the position of the Spencer five, but arguably not in a definitive opinion. Poventud v. City of New York, 715 F.3d 57 (2d Cir. 2013), vacated on reh'g, 750 F.3d 121 (2d Cir. 2014) (en banc); Leather v. Eyck, 180 F.3d 420,  424(2d Cir. 1999); Jenkins v. Haubert, 179 F.3d 19,27 (2d Cir. 1999). See Savory, 947 F.3d at 427 (describing discussions of the issue in Leather and Jenkins as "dicta").

The circuit court in Savory concluded that the Heck doctrine applies even if the plaintiff does not have access to federal habeas corpus. The circuit court found the position of the Spencer five was not controlling precedent because "it is axiomatic that dicta from a collection of concurrences and dissents may not overrule majority opinions." 947 F.3d at 421 (citations omitted). The court explained why Heck should apply regardless of the availability of federal habeas:

Heck was concerned with more than the exclusivity of the habeas remedy for persons in custody, or the intersection between habeas corpus and section 1983. The favorable termination rule in Heck also rested on concerns arising generally from collateral attacks on extant criminal convictions through civil law suits. [R]equiring a section 1983 plaintiff to prove favorable termination of the criminal conviction avoids parallel litigation over probable cause and guilt, and precludes the possibility that a plaintiff might succeed in a civil tort action after having been convicted in the underlying criminal prosecution, allowing the creation of conflicting judgments … .

947 F.3d at 41 (citing Heck, 51 U.S. at 485-86); see also McDonough v. Smith, 139 S. Ct. at 2156-57.

Savory's §1983 claims thus did not accrue until the governor granted him a pardon, an "executive order" overturning Savory's conviction that satisfied Heck's favorable termination rule. That rendered Savory's §1983 claims timely. But in other cases, adoption of the Seventh Circuit §1983/ habeas position might render the plaintiff's claims non-cognizable. The Heck doctrine is truly a double-edged sword.

Martin A. Schwartz is a professor emeritus of law and the author of a multi-volume Section 1983 Litigation treatise published by Wolters Kluwer Law and Business.