Johnetta Carr v. Louisville-Jefferson County, Kentucky Metro Government

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0130p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHNETTA CARR,
Plaintiff-Appellant,
v.
LOUISVILLE-JEFFERSON COUNTY, KENTUCKY METRO
GOVERNMENT; TONY FINCH, GARY HUFFMAN, TERRY
JONES, JIM LAWSON, and SHAWN SEABOLT, Police
Detectives, in their individual capacities; TROY
PITCOCK and JAMES HELLINGER, Louisville Police
Sergeants, in their individual capacities,
Defendants-Appellees.
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No. 21-5736
Appeal from the United States District Court for the Western District of Kentucky at Louisville.
No. 3:20-cv-00818—Charles R. Simpson III, District Judge.
Argued: May 5, 2022
Decided and Filed: June 16, 2022
Before: SILER, GIBBONS, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Elliot Slosar, LOEVY & LOEVY, Chicago, Illinois, for Appellant. Peter F. Ervin,
JEFFERSON COUNTY ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellees.
ON BRIEF: Elliot Slosar, Amy Robinson Staples, Margaret Campbell, LOEVY & LOEVY,
Chicago, Illinois, for Appellant. Peter F. Ervin, Susan K. Rivera, JEFFERSON COUNTY
ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellees.
>

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No. 21-5736 Carr v. Louisville-Jefferson Cnty, Ky. et al. Page 2
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OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. In 2008, Johnetta Carr entered an Alford plea
to second degree manslaughter, pleading guilty but maintaining her innocence. Over a decade
later, she was pardoned. Carr then sued Louisville-Jefferson County, the City of Louisville, and
several police officers under 42 U.S.C. § 1983, alleging her conviction was the result of
constitutional violations. The district court granted defendants’ motion to dismiss, finding Carr’s
§ 1983 claims were not cognizable under the Supreme Court’s precedent in Heck v. Humphrey,
512 U.S. 477 (1994). As Carr’s pardon satisfies the requirements of Heck, we reverse the district
court and remand for Carr to pursue her claims.
I
In 2005, Planes Michael Adolphe was found murdered in front of his apartment building.
Adolphe and Carr had been dating at the time. Carr, who was sixteen, was arrested for
Adolphe’s murder. She was indicted and entered an Alford plea1 in 2008 to second degree
manslaughter, conspiracy to commit robbery, conspiracy to commit burglary, and tampering with
physical evidence. She was sentenced to twenty years of imprisonment. She was paroled in
2009 and discharged in 2018.
On December 6, 2019, Carr applied for a pardon, asserting her innocence. The Kentucky
Innocence Project filed letters in support of her application. Three days later, Kentucky
Governor Matthew Bevin pardoned Carr. In the pardon, he notes “Johnetta Carr is a strong and
highly motivated woman with a very bright future.” DE 20-2, Pardon, Page ID 113. He
expressed his confidence “that she will contribute in powerful ways to society as a whole and to
those in her community specifically.” Id. He granted “her the full and unconditional pardon she
has requested.” Id. The pardon ends,
1“[A]n ‘Alford plea’ refers to a defendant who pleaded guilty but maintained that [she] is innocent.”
United States v. Tunning, 69 F.3d 107, 110 (6th Cir. 1995); see North Carolina v. Alford, 400 U.S. 25 (1970).

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No. 21-5736 Carr v. Louisville-Jefferson Cnty, Ky. et al. Page 3
NOW, THEREFORE, I Matthew G. Bevin, Governor of the Commonwealth of
Kentucky, in consideration of the foregoing, and by the virtue of the authority
vested in me by Sections 77, 145, and 150 of the Constitution of the
Commonwealth of Kentucky, do hereby unconditionally pardon Johnetta Carr and
return to her all rights and privileges of a citizen of this Commonwealth.
Id.
A year later, Carr sued under § 1983, alleging that defendants violated her constitutional
rights by investigating and prosecuting her for Adolphe’s murder. Specifically, she alleges they
fabricated evidence, coerced false statements, and withheld exculpatory evidence. Defendants
moved to dismiss Carr’s complaint, arguing her § 1983 claims were not cognizable under Heck.
The district court agreed and dismissed Carr’s § 1983 claims. With dismissal of the federal
claims, the court declined to exercise supplemental jurisdiction over Carr’s state law claims.
II
We review the grant of a motion to dismiss de novo. Wilmington Tr. Co. v. AEP
Generating Co., 859 F.3d 365, 370 (6th Cir. 2017). We take “as true all well-pleaded material
allegations in the . . . pleadings, and affirm the district court’s grant of the motion only if the
moving party is entitled to judgment as a matter of law.” Id. We may “consider materials in
addition to the complaint if such materials are public records or otherwise appropriate for the
taking of judicial notice.” New England Health Care Emps. Pension Fund v. Ernst & Young,
LLP, 336 F.3d 495, 501 (6th Cir. 2003).
III
We begin with a discussion of Heck v. Humphrey, 512 U.S. 477 (1994), in which the
Supreme Court addressed when an individual may sue under § 1983 and allege constitutional
violations relating to a criminal conviction. Heck was convicted of voluntary manslaughter and
was serving a fifteen-year sentence when he filed a § 1983 suit alleging such constitutional
violations. Heck, 512 U.S. at 478–79. The Court held he could not proceed on his § 1983
claims. Id. at 490.

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No. 21-5736 Carr v. Louisville-Jefferson Cnty, Ky. et al. Page 4
First, the Court noted that habeas is the exclusive means to seek release from custody. Id.
at 481. However, Heck was seeking damages. Id. To determine whether Heck’s claims were
cognizable under § 1983, the Court began by comparing § 1983 to malicious prosecution
because “§ 1983 creates a species of tort liability.” Id. at 483 (citation omitted). To prove
malicious prosecution, a plaintiff must show “termination of the prior criminal proceeding in
favor of the accused.” Id. at 484. The Court noted this element avoids parallel litigation and
collateral attacks on a conviction. Id. Expanding to § 1983, the Court explained “the hoary
principle that civil tort actions are not appropriate vehicles for challenging the validity of
outstanding criminal judgments applies to § 1983 damages actions that necessarily require the
plaintiff to prove the unlawfulness of his conviction or confinement . . . .” Id. at 486. Therefore,
[I]n 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.
Id. at 486–87 (footnote omitted). A court must first “consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence.” Id. at 487. If the
answer is yes, then “the complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.” Id.
A
Carr does not contest that her § 1983 claims implicate Heck. However, she argues her
conviction has already been invalidated through her pardon. In Heck, the Court listed four ways
a conviction could be invalidated: (1) reversal on direct appeal; (2) executive expungement;
(3) declared invalid by a state tribunal; or (4) called into question by a writ of habeas corpus.
512 U.S. at 486–87. Carr argues her pardon falls under executive expungement.
1
We have never previously considered whether a pardoned individual can pursue a § 1983
claim relating to her conviction. Courts that have considered the issue unanimously agree that

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No. 21-5736 Carr v. Louisville-Jefferson Cnty, Ky. et al. Page 5
pardons in some way fall under Heck’s reach. See Savory v. Cannon, 947 F.3d 409, 428–30 (7th
Cir. 2020) (en banc); Wilson v. Lawrence Cnty., 154 F.3d 757, 760–61 (8th Cir. 1998); Walden v.
City of Chicago, 391 F. Supp. 2d 660, 671–72 (N.D. Ill. 2005); Snyder v. City of Alexandria, 870
F. Supp. 672, 686–87 (E.D. Va. 1994). Heck holds a plaintiff can show her conviction was
invalidated by showing it was “expunged by executive order.” 512 U.S. at 487. In considering
whether a pardon falls under this category, the Eighth Circuit noted “‘expunge’ has two different
connotations.” Wilson, 154 F.3d at 760. Expunge can mean physically destroying information,
or a “more common meaning” of destroying or obliterating figuratively. Id. To choose a
definition, the court looked to the other methods of invalidating a conviction under Heck—
“direct appeal, state collateral proceedings, and federal habeas review.” Id. at 761. These
methods do not require “literal destruction,” so the court adopted the figurative meaning of
expunge. Id. A full pardon, the court found, obliterates a conviction and therefore qualifies as
expungement by executive order. Id. The Seventh Circuit, similarly, has “often used ‘pardon’ or
‘executive pardon’ as synonyms for ‘expunged by executive order.’” Savory, 947 F.3d at 429.
A figurative meaning of expunge is supported by the fact that many states do not have
literal expungement by executive order.2 In Kentucky, the governor has pardon power.
Ky. Const. § 77. However, a pardon does not automatically entitle the pardoned individual to
expungement of her criminal record. Harscher v. Commonwealth, 327 S.W.3d 519, 522 (Ky. Ct.
App. 2010). The pardoned individual can petition a court to have her conviction expunged.
Ky. Rev. Stat. Ann § 431.073(1)(c); Bedford v. Commonwealth, No. 2017-CA-001907-MR,
2018 WL 4261782, at *1 (Ky. Ct. App. Sept. 7, 2018). Therefore, Kentucky has executive
pardons and judicial expungement. “There is no reason in principle or policy for the Supreme
Court, for these purposes, to distinguish between prisoners in states where executive
expungement orders are available, and prisoners in states . . . that do not recognize such a
remedy.” Snyder, 870 F. Supp. at 686. Although “executive pardons and judicial expungement
orders are not specifically listed [in Heck], they certainly seem to be within the reach of the
Court’s language.” Id.
2See, e.g., Tenn. Code Ann. § 40-32-101 (Tennessee); Howard v. State, 231 So. 3d 198, 199–200 (Miss. Ct.
App. 2017) (Mississippi); Olson v. State, 286 P.3d 296, 298 (Okla. Civ. App. 2012) (Oklahoma); Walden, 391 F.
Supp. 2d at 671 n.5 (Illinois); Snyder, 870 F. Supp. at 686 (Virginia).

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No. 21-5736 Carr v. Louisville-Jefferson Cnty, Ky. et al. Page 6
We join our sister circuits in holding that a pardoned individual has had her conviction
expunged by executive order under Heck.
2
Defendants argue that Carr’s pardon does not invalidate her conviction under Heck
because the pardon did not contain language indicating Carr was innocent.
In Savory v. Cannon, the en banc Seventh Circuit found no support in Heck for requiring
that a pardon be based on innocence to meet the invalidation requirement. 947 F.3d at 429.
Savory was convicted of first-degree murder. Id. at 412. After thirty years in prison, he was
paroled and his sentence was later commuted. Id. Then, he received a general pardon from
Illinois Governor Pat Quinn. Id. at 412, 428. He sued the City of Peoria and several officers
under § 1983. Id. at 412. Addressing the difference between a general pardon and a pardon of
innocence, the Seventh Circuit wrote, “The contention that a pardon must be based on innocence
in order to serve as a favorable termination finds no support in Heck, and we see no reason to
impose that additional limitation on Heck’s holding.” Id. at 429. The en banc court emphasized
that none of the other methods of invalidation under Heck “require an affirmative finding of
innocence.” Id. Therefore, Savory’s general pardon satisfied Heck’s invalidation requirement.
Id. at 429–30.3 We agree with the Seventh Circuit.
A full pardon, even one that does not indicate an individual is innocent, fulfills the
purposes of Heck’s invalidation requirement. Heck sought to avoid parallel litigation and to
prevent collateral attacks on a conviction through a civil suit. Heck, 512 U.S. at 484–85. A full
pardon removes all legal consequences of the individual’s conviction, avoiding the concern of
parallel litigation with an outstanding criminal proceeding. See United States v. Barrett,
504 F.2d 629, 634 (6th Cir. 1974) (“A pardon is full when it freely and unconditionally absolves
the person from all the legal consequences of his crime and of his conviction, direct and
collateral, including punishment, whether . . . imprisonment, pecuniary penalty, or whatever else
the law has provided . . . .”). As for collateral attacks, the Eighth Circuit addressed this concern:
3The only other circuit to consider the issue, the Eighth Circuit, did not directly state whether an
implication of innocence is required. See Wilson, 154 F.3d at 759–61.

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The gist of Heck is that section 1983 is not an appropriate vehicle for attacking
the validity of a state conviction. [The plaintiff] does not seek to put it to this
improper use. He used the executive clemency process, which the Supreme Court
has expressly approved, as the forum in which to challenge his criminal
conviction.
See Wilson, 154 F.3d at 761.4
While a full pardon does not always indicate that the individual is innocent, Heck does
not require a finding of innocence. Heck did not impose a prerequisite of innocence to seek
relief under § 1983. Instead, it gave examples of state procedures amounting to invalidation of a
conviction. It did not mention innocence as a requirement, and there is “no reason to impose that
additional limitation [of innocence] on Heck’s holding.” Savory, 947 F.3d at 429.
B
Defendants argue that under Kentucky law a pardon does not invalidate a conviction.
Because § 1983 is a federal statute, federal law governs its interpretation. See Wilson, 154 F.3d
at 760; see also Maine v. Thiboutot, 448 U.S. 1, 4–8 (1980) (using federal law to interpret
§ 1983); Armstrong v. Mich. Bureau of Servs. for Blind Persons, 969 F.3d 337, 341–42 (6th Cir.
2020) (same). State law, however, does play a role.
We look to state law for the limited purpose of determining whether a particular pardon is
full and unconditional, such that it falls within the meaning of Heck. A pardon in Kentucky “is
the act or an instance of officially nullifying punishment or other legal consequences of a crime.”
Harscher, 327 S.W.3d at 522 (cleaned up). “A full and complete pardon also restores all civil
rights to the pardoned felon.” Id. While a pardon removes all legal consequences, it does not
4The Supreme Court recently addressed the lack of an innocence requirement in a Fourth Amendment
claim under § 1983. Thompson v. Clark, 142 S. Ct. 1332 (2022). Thompson was charged in state court proceedings,
but “the charges were dismissed before trial without any explanation by the prosecutor or judge.” Id. at 1335. He
sued the police officers who initiated the criminal proceedings under § 1983, alleging they maliciously prosecuted
him in violation of the Fourth Amendment. Id. The Court compared Thompson’s Fourth Amendment claim to
malicious prosecution, noting that a favorable termination of the underlying criminal proceedings is required to
succeed in a malicious prosecution claim. Id. at 1337–39. Emphasizing the purposes of the favorable termination
requirement—to avoid parallel litigation, preclude inconsistent judgments, and prevent improper collateral attacks—
the Court held an affirmative showing of innocence is not required. Id. at 1338–41. Thompson is distinguishable
because the plaintiff was never convicted, but the case highlights the purposes of the favorable termination
requirement and that an affirmative showing of innocence is not required to satisfy those purposes. See id.

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No. 21-5736 Carr v. Louisville-Jefferson Cnty, Ky. et al. Page 8
eliminate collateral consequences. Id. A pardon “does not wipe out either guilt or the fact of the
conviction.” Id. As discussed above, none of the examples in Heck require innocence or
complete elimination of the fact of conviction. Rather, Heck requires only that the conviction
has been sufficiently invalidated to avoid parallel litigation and an inappropriate collateral attack
on a conviction. A full pardon in Kentucky removes all legal consequences, so that a plaintiff
can proceed with her § 1983 claims without implicating the concerns in Heck. Therefore, a full
pardon in Kentucky satisfies Heck’s requirements.
IV
We hold that a full pardon, regardless of its implications for the question of innocence,
meets the requirements of Heck. Under this standard, Carr’s pardon satisfies the requirement
because it is a “full and unconditional pardon.” DE 20-2, Pardon, Page ID 113. We reverse the
district court’s dismissal of Carr’s § 1983 claims. After the district court dismissed Carr’s
§ 1983 claims, it declined to exercise supplemental jurisdiction over her state law claims. We
also reverse dismissal of the state law claims and remand for the district court to consider
whether to exercise supplemental jurisdiction.

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