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Cannon v. Newport

United States Court of Appeals, Seventh Circuit

March 3, 2017

Billy Cannon, Plaintiff-Appellant,
Dean Newport, et al, Defendants-Appellees.

          Submitted February 21, 2017

         Appeals from the United States District Court for the Eastern District of Wisconsin. Nos. 2:15-cv-01397-PP & 2:15-cv-01370-PP - Pamela Pepper, Judge.

          Before Wood, Chief Judge, and Posner and Hamilton, Circuit Judges.

          POSNER, Circuit Judge.

         Billy Cannon appeals the dismissal of two civil rights complaints, see 42 U.S.C. § 1983, that accuse Milwaukee police, prosecutors, and judges of having violated his constitutional rights during a series of investigations and prosecutions.

         In 2008 a state investigator obtained from a Wisconsin court authorization to intercept calls made to and from a telephone number being used by suspected drug traffickers. That telephone number was not Cannon's, but he says he was intercepted during this wiretap. Then on March 17 of the following year Milwaukee police obtained consent from Cannon's son to search the home where he lived with his father. The police found $14, 000 in cash in the home, and arrested Cannon for drug and gun crimes on the basis of a report by a government informant that the informant had purchased cocaine, and borrowed a gun, from Cannon. The day after his arrest the judge set bail for each of the crimes charged at $2, 500. Cannon posted the required bail but was not released because the police filed another complaint, charging him with a third crime-giving a gun to an unauthorized person. Wis.Stat. § 941.29(4) (2007). A different judge reviewed that complaint the next day, found probable cause, and set bail at $2, 500. Cannon did not post this additional amount.

         He appeared in court on March 20, and prosecutors filed an amended criminal complaint covering all three charges, leading to the judge's raising Cannon's bail to $250, 000. He eventually made bail, but in August was again arrested, this time for bail jumping after he changed his residence without notifying the police. He was jailed, but released a few days later without being charged.

         Cannon was finally tried in 2011, and though acquitted of the drug charge pleaded guilty to illegal possession of the gun (the second gun charge was dismissed) and was sentenced to two years in prison. Just before he'd pleaded guilty, however, a warrant had been issued for his arrest on new gun and drug charges. Two days later a state trooper stopped him for a traffic violation and upon learning his identity arrested him on the outstanding warrant. Four days after that Cannon appeared for a probable cause hearing.

         In 2013 Cannon got hold of what he calls "exculpatory" material-copies of police reports and other documents relating to his March 2009 arrest-and on the basis of this documentation filed suit under 42 U.S.C. § 1983 against the police, prosecutors, and judges claiming that his prosecutions in 2009 and 2011 had been the elements of a conspiracy to violate his constitutional rights. That suit was dismissed as premature, because appeals by him in both criminal cases were pending. In 2014 he was convicted of the 2011 drug and gun charges and sentenced to 16 years' imprisonment, a term he is currently serving.

         In November 2015 he filed the two suits, both also under 42 U.S.C. § 1983, that have given rise to the appeals before us. In one, which focuses on the events of 2009, he claims that Milwaukee police officers, prosecutors, and judges violated his constitutional rights under the Fourth, Sixth, Eighth, and Fourteenth Amendments to the Constitution- that the police had lacked probable cause when they arrested him in March and August 2009, that he had been denied counsel when the first two criminal complaints were reviewed by two different judges before he appeared in court on March 20, 2009, that the $250, 000 bail set that day had been excessive, and that the defendants had conspired maliciously to prosecute him. The district court dismissed the complaint as barred by the six-year statute of limitations applicable to section 1983 claims in Wisconsin. Wis.Stat. § 893.53; Gray v. Lacke, 885 F.2d 399, 409 (7th Cir. 1989).

         Cannon tries to sidestep the statute of limitations in three ways. He argues that he was unaware of the violations of his rights until he received the "exculpatory" material; that the defendants' actions from the time of his arrest in March 2009 until they released that material to him in June 2013 constituted a "continuing violation" of his rights, amounting to a "custom and policy" of unconstitutional behavior; and that a plaintiff is not required to address in his complaint affirmative defenses to his claims.

         The district judge was correct that Cannon's claim that the police falsely arrested him in violation of the Fourth Amendment is time-barred. A claim to have been arrested in violation of the amendment accrues "at the time of (or termination of) the violation." Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008). Cannon was brought before a judge three days after his March 2009 arrest, and his Fourth Amendment claim accrued then because by virtue of the arrest he was now "detained pursuant to legal process." Wallace v. Kato, 549 U.S. 384, 397 (2007). And since any violation of the Fourth Amendment caused by his August 2009 arrest had ended when he was released on September 3, 2009, without charges being filed, id. at 389-90; Harrington v. City of Nashua, 610 F.3d 24, 28 (1st Cir. 2010), the latest he could have sued concerning his two arrests were March 20, 2009, and September 3, 2015, respectively.

         His attempt to excuse his lateness is unpersuasive. Nothing in the material he attaches to his complaint reveals circumstances of the arrests or of the charging and bail procedures that he wouldn't have known at the time. Nor can he "use a theory of a continuing civil conspiracy to recover for individual overt acts that would themselves be time-barred." Rosado v. Gonzalez, 832 F.3d 714, 718 (7th Cir. 2016). And when a complaint reveals that the action is untimely, the court can dismiss it. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).

         His claim that he was denied counsel in violation of the Sixth Amendment when judges reviewed the first two criminal complaints against him has not yet accrued, because his conviction has not been set aside. He is not allowed to seek damages that would impugn a conviction, see Heck v. Humphrey,512 U.S. 477, 486-87 (1994); Gilbert v. Cook,512 F.3d 899, 900 (7th Cir. 2008), though his claim to have been denied ...

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