In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2056

CHRISTOPHER PARISH, et al.,

Plaintiffs-Appellants,

v.

CITY OF ELKHART, 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.

ARGUED APRIL 9, 2010—DECIDED JULY 30, 2010

Before POSNER, FLAUM and WILLIAMS, Circuit Judges.

FLAUM, Circuit Judge. In this case, we are confronted

with the question of when claims of police misconduct

resulting in false arrest, false imprisonment, and intentional infliction of emotional distress (“IIED”), accrue

for the purpose of the general two-year statute of limitation in Indiana. After serving eight years of a thirtyyear prison sentence for attempted murder, plaintiffappellant, Christopher Parish, was released from prison
2 No. 09-2056

Because this appeal stems from a motion to dismiss, we 1

take the facts from the complaint as true. Johnson v. Rivera,

272 F.3d 519, 520 (7th Cir. 2001).

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. Background1

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
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-conviction litigation, evidence came out that the shooting occurred 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 determined 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, manipulated witnesses, threatened or coerced witnesses, engaged

in staging a crime scene in Kershner’s mother’s apartment, and further fabricated and destroyed evidence.”
4 No. 09-2056

Because the district court’s September 5, 2008, Order did not 2

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.

(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 supplemental 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. However, at oral argu- 2

ment Parish conceded that the district court properly

found that the claims for false arrest and false imprisonment were timed-barred. Therefore, the only remaining

issue in this appeal is whether the district court properly

dismissed the IIED claim.
No. 09-2056 5

II. Discussion

We review an appeal from a motion to dismiss pursuant 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 complaint 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 timebarred. If the claim accrued at the time Parish was exonerated, 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

Although the Indiana Supreme Court has not directly ruled

3

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).

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 conviction 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
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 terminated 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 carefully 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 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. 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 damages 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 dismissed 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 terminated 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 imprisonment 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 constitution 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 imprisonment 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 absence 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 inevitably impugn a conviction, a claim of false imprisonment 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 prosecution 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 imprisonment, 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 reasonable suspicion and the indictment was dismissed.

Johnson’s complaint against the officers focused exclusively 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 arrest/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

The Supreme Court in Heck envisioned claims such as those 4

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 unreasonable search may lie even if the challenged search produced

evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff’s still-outstanding conviction.”).

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 challenge to the conviction. As such, Johnson’s complaint 4

did not invoke the Heck framework and we do not read

the Johnson opinion to be a recantation of Indiana’s prior
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 allegedly 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 consider 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 officers 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 REVERSE the

district court’s dismissal of Parish’s IIED claim. Also,

based on Parish’s concession at oral argument, we AFFIRM

the district court’s dismissal of the false arrest and false

imprisonment claims.

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