                                           Filed:    September 18, 1996


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                             No. 95-6546
                         (CA-94-1633-2-21AK)



Darryl L. Wright,

                                               Plaintiff - Appellant,

           versus

Larry E. Oliver, etc., et al,

                                              Defendants - Appellees.




                              O R D E R


    The Court amends its opinion filed August 15, 1996, as

follows:
    On page 5, first full paragraph, line 4 -- the phrase "were

expunged in November 1990" is corrected to read "were favorably

terminated in November 1990 . . . ."

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor
                                                    Acting Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DARRYL L. WRIGHT,
Plaintiff-Appellant,

v.
                                                                 No. 95-6546
LARRY E. OLIVER, Lieutenant; EDDIE
FRAZIER, Detective,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
William B. Traxler, Jr., District Judge.
(CA-94-1633-2-21AK)

Submitted: July 9, 1996

Decided: August 15, 1996

Before MURNAGHAN, HAMILTON, and WILLIAMS,
Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded for further proceed-
ings by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Darryl L. Wright, Appellant Pro Se. James Albert Stuckey, Jr.,
STUCKEY & KOBROVSKY, Charleston, South Carolina, for Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Darryl L. Wright, a South Carolina prisoner, brought this action
pursuant to 42 U.S.C. § 1983 (1988) seeking monetary damages for
alleged civil rights violations in connection with his arrest on state
drug charges. Concluding that Wright's action was barred by the
applicable statute of limitations, the district court entered judgment in
favor of Defendants. We placed this case in abeyance pending a deci-
sion in Brooks v. City of Winston-Salem, ___ F.3d ___, 1996 WL
288947 (4th Cir. June 3, 1996) (No. 94-7063). Now that Brooks has
been decided, we affirm in part, vacate in part, and remand for further
proceedings.

Wright claims that in 1989, the Defendants entered into a conspir-
acy to violate his Fourth Amendment rights, that Defendant Eddie
Frazier "planted" cocaine on him, and that in 1990, both Defendants
unlawfully arrested him pursuant to a warrant and subsequently
attempted to coerce him into pleading guilty. Wright further avers that
$48,000 was unlawfully seized from him and that a conspiracy
existed between Defendants and the state's attorney.

The magistrate judge filed a report recommending dismissal of the
action on statute of limitations grounds. The magistrate judge rea-
soned that the search warrant and arrest warrant were dated August
1990, and Wright's complaint made reference only to 1989. There-
fore, the applicable three-year statute of limitations had expired well
before Wright filed his complaint in May 1994.1
_________________________________________________________________

1 Since there are no federal statutes of limitations for § 1983 claims, the
state statute governing personal injury claims provides the applicable
limitations period. Wilson v. Garcia, 471 U.S. 261, 276 (1985). In South
Carolina, for personal injury actions accruing on or after April 5, 1988,
the limitations period is three years. S.C. Code Ann. § 15-3-530(5) (Law.
Co-op. Supp. 1995); see also Simmons v. South Carolina State Ports
Auth., 694 F.2d 63, 64 (4th Cir. 1982) (citing to previous version of stat-
ute).

                    2
In his objections to the magistrate judge's report, Wright argued
that the statute of limitations should have been tolled. He contended
that he "has been imprison [sic] non stop, since October 27, 1990"
(apparently on another charge) and that he "first learned of the Defen-
dants engaging in a Conspiracy to violate [his] Civil and Constitu-
tional Rights, on or about August 14, 1990." Further, Wright alleged
that his cause of action did not accrue until November 1990 when his
August 1990 arrest was judicially expunged. Therefore, according to
Wright, since he was incarcerated at the time of the accrual of his
cause of action, he was entitled to a tolling of the statute.

The district court sua sponte dismissed Wright's suit pursuant to
Fed. R. Civ. P. 12(b)(6), reasoning that all of Wright's causes of
action accrued in August 1990 when he learned of the conspiracy.
Since Wright was not imprisoned until October, the district court con-
cluded that he was not entitled to a tolling of the statute. The court
did not address Wright's expungement argument.

Pursuant to S.C. Code Ann. § 15-3-40 (Law. Co-op. Supp. 1995),
a person imprisoned on a criminal or civil charge at the time the cause
of action accrues is entitled to have the statute of limitations tolled
until five years beyond the applicable limitations period or such time
as he or she is released from prison. In order to toll the statute of limi-
tations, the plaintiff must have been in prison at the time his causes
of action accrued.

Wright contends that he has been imprisoned continuously since
October 1990. Therefore, if Wright's claims accrued at the point in
time that he discovered the conspiracy (August 1990), his claims are
barred. However, if Wright's claims did not accrue until such time as
the charges were expunged (November 1990), his claims were timely
filed, because the statute would have been tolled.

The Supreme Court stated in Heck v. Humphrey, ___ U.S. ___, 62
U.S.L.W. 4594, 4597 (U.S. June 24, 1994), that a prisoner attacking
the legality of his conviction or confinement

        has no cause of action under § 1983 unless and until the
        conviction or sentence is reversed, expunged, invalidated, or
        impugned by the grant of a writ of habeas corpus.

                     3
In its discussion, the Court noted that its holding did not create a stat-
ute of limitations problem, because a § 1983 claim attacking the legal-
ity of a conviction or sentence, like a malicious prosecution action,
would not arise until the conviction or sentence was invalidated. Id.
at 4597-98.

In Brooks, we discussed the application of Heck to various causes
of action:

        a § 1983 action that would not render a conviction or sen-
        tence invalid and that seeks to recover damages other than
        those resulting from conviction or sentence was cognizable
        and could proceed, assuming no other bar to the action was
        present, even though the plaintiff's conviction or sentence
        had not been reversed . . . We gather that if such claims
        properly may go forward, despite the lack of a disposition
        of the criminal charges that is favorable to the§ 1983 plain-
        tiff, then these claims must have accrued.

1996 WL 288947 at *3 (emphasis in original) (citations omitted).
However, we noted in Brooks that § 1983 actions which require proof
of termination of the criminal proceeding favorable to the accused do
not accrue until such favorable termination is obtained. Id. at *4.

Wright's complaint alleges that Defendants conspired to violate his
Fourth Amendment rights, conspired to obstruct justice, and engaged
in behavior constituting malicious prosecution.2 Addressing the con-
spiracy claims first, the accrual of such civil rights conspiracy claims
is subject to the "knew or should have known" rule. See Hunt v.
Bennett, 17 F.3d 1263, 1266 (10th Cir.), cert. denied, ___ U.S. ___,
63 U.S.L.W. 3259 (U.S. Oct. 3, 1994) (No. 93-9079). That is, the
action arises when the plaintiff possesses sufficient facts about the
harm done to him that reasonable inquiry will reveal his cause of
action. Brooks, 1996 WL 288947 at *2. This general rule applies
_________________________________________________________________

2 In his pleadings, Wright uses the term "false arrest." However, his
arrest was made pursuant to a warrant that was allegedly lacking in prob-
able cause. Such allegations state a claim for malicious prosecution and
not false arrest, which addresses only illegal warrantless arrests. Brooks,
1996 WL 288947 at *2.

                     4
because favorable termination is not an element of a civil rights con-
spiracy claim. See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.
1994), cert. denied, ___ U.S. ___, 62 U.S.L.W. 3487 (U.S. Jan. 24,
1994) (No. 93-882). Since Wright admits that he learned of the con-
spiracy in August 1990, his conspiracy claims accrued at that time.
Because these claims accrued almost four years before suit was filed,
they are time barred under the applicable three-year statute of limita-
tions.

Wright's malicious prosecution claim, however, requires a differ-
ent result. Such a claim accrues at the favorable termination of the rel-
evant criminal proceeding. Brooks, 1996 WL 288947 at *4. Assuming
Wright's allegations that his charges were favorably terminated in November
1990, at a point when he was in prison, are true, the statute of limita-
tions on his malicious prosecution claim was tolled and his claim was
therefore filed before the expiration of the limitations period. In addi-
tion, Wright's allegations that the Defendants arrested him pursuant
to legal process that was not supported by probable cause and that the
criminal proceeding terminated in his favor are sufficient to state a
§ 1983 malicious prosecution claim. See Brooks, 1996 WL 288947 at
*4.

Therefore, we hold that the district court properly dismissed as
time barred Wright's § 1983 claim to the extent it was based on a civil
rights conspiracy. However, on the record presently before the court,
the district court erred in concluding that Wright's action was
untimely to the extent that his complaint alleged an unconstitutional
arrest accomplished pursuant to a warrant. While we recognize that
the court did not have the benefit of our opinion in Brooks, a remand
for further proceedings with respect to this claim is nonetheless
required. Accordingly we affirm in part, vacate in part, and remand
for further proceedings. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED
FOR FURTHER PROCEEDINGS

                    5
