                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 95-8557.

                              George N. UBOH, Plaintiff-Appellant,

                                                  v.

Janet RENO, Head of U.S. Dept. Of Justice and Attorney General of the United States, Robert C.
Bonner, Administrator, Drug Enforcement Admin., Janis C. Gordon, Assistant U.S. Attorney, Mary
P. Gholson, Agent, Drug Enforcement Admin., Brian Sullivan, Drug Enforcement Admin., Frank
Smith, Agent, Drug Enforcement Admin., Defendants-Appellees.

                                           May 18, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:94-cv-
1984-RLV), Robert L. Vining, Jr.

Before BIRCH, Circuit Judge, RONEY, Senior Circuit Judge, and O'KELLEY*, Senior District
Judge.

       BIRCH, Circuit Judge:

       This case requires that we decide whether a prosecutor's unilateral decision to dismiss some

counts of an indictment following a defendant's conviction on other counts of the same indictment

constitutes favorable termination for purposes of the defendant's subsequent Bivens1 action for

malicious prosecution. Further, we must determine, in light of the particular facts presented in this

case, when the causes of action alleged in the complaint accrued and whether these claims are

time-barred. The district court dismissed this case after finding that the plaintiff had failed to file




   *
   Honorable William C. O'Kelley, Senior U.S. District Judge for the Northern District of
Georgia, sitting by designation.
   1
   Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91
S.Ct. 1999, 29 L.Ed.2d 619 (1971).
the complaint within the time dictated by the applicable statute of limitations. For the reasons that

follow, we reverse and remand for further proceedings.

                                        I. BACKGROUND

       For purposes of this appeal, the following facts as alleged in the complaint are undisputed:

In 1992, federal agents sought and obtained authorization to wiretap George Uboh's telephone. The

application for the wiretap was based in part on affidavits provided by agents of the Drug

Enforcement Administration (DEA), indicating Uboh's possible involvement in the importation of

heroin and cocaine. Uboh subsequently was indicted, along with nineteen co-defendants, for

charges related to credit card fraud. Unlike any of his co-defendants, however, Uboh was also

indicted on three counts related to the importation of narcotics. Of the nineteen defendants charged

in the indictment, Uboh also was the sole defendant denied bond; specifically, a district court judge

denied bond initially on February 20, 1992, and on appeal on May 14, 1992. The federal prosecutor

based the request for detention without bond on the drug charges set forth in the indictment.

       The district court severed the drug-related charges from those counts of the indictment

alleging credit card fraud. On February 1, 1993, a jury convicted Uboh of credit card fraud. On July

20, 1993, the district court granted the government's motion to dismiss the drug charges.

       Uboh filed this Bivens action2 and alleged, inter alia, that DEA agents Mary P. Gholson,

Brian Sullivan, and Frank Smith falsified affidavits for Assistant United States Attorney (AUSA)

Janis C. Gordon, who knowingly used the false affidavits to obtain authorization for a wiretap on

Uboh's telephone. Uboh further alleged that Gordon intentionally sought his indictment on



   2
    Uboh initially filed this action pursuant to 42 U.S.C. §§ 1983 and 1985(3), but later amended
the complaint to allege correctly a cause of action within the framework of Bivens.

                                                 2
fabricated charges of conspiracy to import and distribute cocaine and heroin, and that the district

court denied him bond solely due to Gordon's assertion that Uboh was involved in illegal drug

activity.

        The defendants moved to dismiss the complaint on the grounds that the claims were

time-barred, the federal defendants were entitled either to absolute or qualified immunity, and the

allegations were insufficient to state a constitutional violation. The district court granted the motion

to dismiss exclusively on the basis of the statute of limitations. The court reasoned that the statute

of limitations for a Bivens claim was analogous to Georgia's two-year personal injury statute of

limitations and that, under our Bivens case law, an action accrued at the time the plaintiff knew or

had reason to know of his claims. The court explicitly rejected Uboh's assertion of a malicious

prosecution cause of action on the ground that this type of claim arose only under state law. The

court further determined that, because Uboh became aware of his claims at the time of his indictment

or, at the latest, when his bond was denied on appeal, the statute of limitations barred his claims.

Uboh filed a motion for reconsideration and argued that, consistent with the analysis set forth by the

Supreme Court in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), his

claims did not accrue until the criminal charges against him were dismissed. The district court

denied the motion for reconsideration.

        On appeal, Uboh argues that, although the district court properly determined that the claims

presented are subject to a two-year statute of limitations, the court erroneously failed to treat his

allegations as akin to the federal constitutional tort of malicious prosecution and, as a result, erred

in determining the date on which the causes of action accrued. The defendants originally asked that

we affirm the district court's decision for the reasons discussed in that court's opinion; in a


                                                   3
supplemental brief, however, the defendants appear to have shifted gears entirely and argue, instead,

that because Uboh has failed to establish the elements of a Bivens, malicious prosecution claim, the

general rule regarding the accrual date of a Bivens cause of action should obtain and the claims

should be deemed time-barred.3

                                           II. DISCUSSION

         We independently review the district court's ruling concerning the applicable statute of

limitations. Byrd v. MacPapers, Inc., 961 F.2d 157, 159 (11th Cir.1992). Federal courts apply their

forum state's statute of limitations for personal injury actions to actions brought pursuant to 42

U.S.C. § 1983; similarly, we have held that the application of the state personal injury statute of

limitations period obtains in the context of Bivens actions as well. See Kelly v. Serna, 87 F.3d 1235,

1238 (11th Cir.1996). It is undisputed in this case that Georgia's two-year personal injury statute

of limitations applies to Uboh's constitutional claims.

        A statute of limitations begins to run when the cause of action accrues. Id. The question of

when the limitations period begins to run, however, is one of federal law. See Wilson v. Garcia, 471

U.S. 261, 268-71, 105 S.Ct. 1938, 1942-44, 85 L.Ed.2d 254 (1985). Here, the district court

construed Uboh's claim of malicious prosecution solely as a state law cause of action and noted that

"the plaintiff ignores that [sic] fact that he is not suing the defendants for violation of any state law;

indeed, Bivens creates a cause of action only for a violation of federally created rights." R1-20 at

3. The district court went on to find that the plaintiff had failed to show that he was unaware of the



   3
    The defendants also reassert their arguments regarding absolute and qualified immunity. As
discussed further below, because we conclude that the district court erred in dismissing this case
on statute of limitations grounds and remand for further proceedings, we decline to address the
defendants additional arguments without benefit of the district court's factual determinations.

                                                    4
alleged injury caused by the wiretaps, the indictment, and the denial of bond at the time those events

transpired. Consequently, because even the last of those events occurred more than two years prior

to the filing of this action, the suit was barred by the statute of limitations. See id.

        In the first instance, the district court erred in failing to recognize in Uboh's complaint the

assertion of an established, federally-protected constitutional right. Indeed, there has been a

remarkable divergence of opinion among the circuit courts as to both the extent to which the claim

of malicious prosecution gives rise to a federal cause of action and, assuming that such a claim is

cognizable, its constitutional source; our court, however, unequivocally has identified malicious

prosecution to be a constitutional tort that is cognizable under § 1983.4 In Whiting v. Traylor, 85

F.3d 581 (11th Cir.1996), for instance, we observed that

        [l]abeling ... a section 1983 claim as one for a "malicious prosecution" can be a shorthand
        way of describing a kind of legitimate section 1983 claim; the kind of claim where the
        plaintiff, as part of the commencement of a criminal proceeding, has been unlawfully and


   4
    See Strength v. Hubert, 854 F.2d 421, 426 n. 5 (11th Cir.1988) ("[F]reedom from malicious
prosecution is a federal right protected by § 1983...."); Accord Sanders v. English, 950 F.2d
1152, 1159 (5th Cir.1992) ("[O]ur circuit recognizes causes of action under § 1983 for false
arrest, illegal detention (false imprisonment), and malicious prosecution.... These causes of
action implicate the constitutional guarantees of the fourth and fourteenth amendments.")
(internal quotation marks and citation omitted). But see Usher v. Los Angeles, 828 F.2d 556, 561
(9th Cir.1987) ("[T]he general rule is that a claim of malicious prosecution is not cognizable
under 42 U.S.C. § 1983 if process is available within the state judicial system to provide a
remedy."). In Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality
opinion), the Supreme Court altered the analytical framework surrounding the federal claim
asserted in this case by deciding that the substantive due process component of the Fourteenth
Amendment did not provide the constitutional source of a right to be free from malicious
prosecution; significantly, however, the Court explicitly left open the possibility that the Fourth
Amendment might serve as an appropriate locus for the claimed right to be free from malicious
process. See id., 510 U.S. at 274-75, 114 S.Ct. at 813-14 ("We have in the past noted the Fourth
Amendment's relevance to the deprivations of liberty that go hand in hand with criminal
prosecutions."). Consistent with the suggestive reasoning advanced by the Court in Albright, our
court has since expressly characterized the right to be free from malicious prosecution as an
independent cause of action that potentially is cognizable under the Fourth Amendment.

                                                   5
        forcibly restrained in violation of the Fourth Amendment and injuries, due to that seizure,
        follow as the prosecution goes ahead.

Id. at 584; accord Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2nd Cir.1995) ("The Fourth

Amendment right implicated in a malicious prosecution action is the right to be free of unreasonable

seizure of the person—i.e., the right to be free of unreasonable or unwarranted restraints on personal

liberty."); Smart v. Board of Trustees of the Univ. of Illinois, 34 F.3d 432, 434 (7th Cir.1994) ("If

malicious prosecution or abuse of process is committed by state actors and results in the arrest or

other seizure of the defendant ... we now know that the defendant's only constitutional remedy is

under the Fourth Amendment...."). Preliminary to our discussion of the merits of Uboh's challenge

to the district court's final disposition with respect to the statute of limitations, therefore, we note

that the district court erred in failing to treat the claims asserted in this case as premised on a theory

of malicious prosecution pursuant to the Fourth Amendment; contrary to the district court's stated

justification for its decision, such a cause of action does constitute a cognizable Bivens claim.5

        Having determined that the complaint presented in this case must be construed as setting

forth allegations that comprise a malicious prosecution claim, we next must decide whether the

causes of action asserted are barred by the statute of limitations. As noted, the issue of whether the

district court properly applied Georgia's two-year statute of limitations regarding personal injury

causes of action is undisputed; the contested point, rather, is when Uboh's claims accrued. Uboh

argues that, consistent with the jurisprudence of this circuit and the Supreme Court pertaining to

malicious prosecution as a federal cause of action, his claims could not have accrued until the



   5
    Although the federal defendants declined to acknowledge the district court's error in either of
their appellate briefs, they did concede at oral argument that the court had erred in failing to
recognize the existence of a federal right to be free from malicious prosecution.

                                                    6
charges against him that relate to this case were resolved in his favor.6 In response, the defendants

submit that Uboh has failed properly to plead the elements of a cause of action for malicious

prosecution; consequently, his claims should be construed not within the context of our decisional

law on malicious prosecution but as general, federal claims that are subject to a residual statute of

limitations for Bivens actions. Under this theory, because Uboh knew or should have known of the

alleged violations simultaneous with their occurrence and because these events undisputedly took

place more than two years before the case was filed, the claims are time-barred.

        Because the species of Fourth Amendment violation alleged in this case arises by way of

analogy to the common law tort of malicious prosecution, courts historically have looked to the

common law for guidance as to the constituent elements of the claim. See Whiting, 85 F.3d at 585

n. 7 ("Where an arrest is made after the filing of an information and the arrest is the basis of a Fourth

Amendment section 1983 claim, we think the tort of malicious prosecution is the most analogous

tort to the section 1983 claim."). See also Hilfirty v. Shipman, 91 F.3d 573, 579 (3rd Cir.1996) ("In

order to state a prima facie case for a section 1983 claim of malicious prosecution, the plaintiff must

establish the elements of the common law tort as it has developed over time.") Georgia law provides

that:

        [a] criminal prosecution which is carried on maliciously and without any probable cause and
        which causes damage to the person prosecuted shall give him a cause of action.

O.C.G.A. § 51-7-40. Further, in order to state a cause of action for malicious prosecution, a plaintiff

must allege and prove that the criminal proceeding that gives rise to the action has terminated in


   6
    The drug charges initially brought against Uboh were dismissed on July 21, 1993. Uboh
filed this action on July 28, 1994. If Uboh's claims accrued on the date the drug charges were
dismissed, the complaint in the instant civil case would have been filed within the applicable
two-year statute of limitations established under Georgia law.

                                                   7
favor of the accused. See Kelly v. Serna, 87 F.3d at 1240-41; Heck v. Humphrey, 512 U.S. 477, 484,

114 S.Ct. 2364, 2371, 129 L.Ed.2d 383 (1994) ("One element that must be alleged and proved in

a malicious prosecution action is termination of the prior criminal proceeding in favor of the

accused.").

       The government's contention that Uboh has not stated the elements of a claim for malicious

prosecution rests on the premise that the prosecutor's decision to dismiss the drug charges at issue

here does not constitute a favorable termination of the underlying criminal proceeding.7 Whether

a prosecutor's unilateral decision to dismiss specific counts of an indictment—and the defendant has

been convicted on other counts of the same indictment—constitutes termination in favor of the

accused for purposes of the constitutional tort of malicious prosecution is an issue of first

impression.

       The Supreme Court has observed that the requirement of favorable termination in the context

of malicious prosecution suits prevents parallel litigation over the issues of probable cause and guilt

and the possible creation of conflicting resolutions arising out of the same or identical transactions.

See Heck, 512 U.S. at 484, 114 S.Ct. at 2371. Courts have further reasoned that "only terminations



   7
    In a supplemental brief, the defendants further aver that Uboh has failed to present probative
evidentiary support for the allegation that the defendants instigated the prosecution on drug
charges without probable cause. We note, at the outset, that this argument is raised for the first
time on appeal and was neither discussed or addressed by the district court. Moreover, we agree
with Uboh's response, as set forth in a reply brief, that the government's challenge to the
evidentiary basis for the allegations is best reserved for summary judgment. We therefore
decline to consider whether, at this point in the proceedings, Uboh has proven the first element
of a malicious prosecution claim. We do find, however, that the pro se complaint—which we
are required to construe liberally—adequately alleges that the wiretap request and indictment
lacked probable cause; stated differently, we conclude that, for purposes of our analysis of the
statute of limitations issue, the complaint does not fail to state a claim with regard to the
probable cause component of malicious prosecution.

                                                  8
that indicate that the accused is innocent ought to be considered favorable." Hilfirty, 91 F.3d at 580

(relying on Restatement (Second) of Torts § 660 cmt. a ("Proceedings are "terminated in favor of the

accused' ... only when their final disposition is such as to indicate the innocence of the accused."));

Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir.1994) (per curiam) (same); Singleton v. City of New

York, 632 F.2d 185, 193 (2nd Cir.1980) (same). Thus, courts have found that withdrawal of criminal

charges pursuant to a compromise or agreement does not constitute favorable termination and, thus,

cannot support a claim for malicious prosecution. See, e.g., Taylor, 36 F.3d at 455-56 (holding that

pretrial diversion agreement, in which accused must acknowledge responsibility for offense conduct,

"does not terminate the criminal action in favor of the criminal defendant for purposes of bringing

a malicious prosecution claim."); Laster v. Star Rental, Inc., 181 Ga.App. 609, 353 S.E.2d 37, 38

(Ga.App.1987) ("[W]here the termination of the prosecution has been brought about by compromise

and agreement of the parties, an action for malicious prosecution can not be maintained.").

Similarly, courts have refused to permit a finding of favorable termination where the stated basis for

the dismissal of criminal charges has been "in the interests of justice," see Singer, 63 F.3d at 118;

Hygh v. Jacobs, 961 F.2d 359, 368 (2nd Cir.1992), or where a conviction has been reversed and the

cause expressly remanded for retrial, see Brandley v. Keeshan, 64 F.3d 196, 199 (5th Cir.1995).

       Consistent with each of the policies underlying the favorable termination requirement,

however, courts have found favorable termination to exist by virtue of an acquittal, an order of

dismissal reflecting an affirmative decision not to prosecute, a dismissal based on the running of the

statute of limitations, an entry of a nolle prosequi, and, in some cases, a granted writ of habeas

corpus. See, e.g. Hilfirty, 91 F.3d at 584-85 (where court determined that when the grant of nolle

prosequi was not the result of a compromise, "grant of nolle prosequi was sufficient to satisfy the


                                                  9
requisite element of favorable termination of the criminal action.") (internal quotation marks and

citation omitted); Brandley, 64 F.3d at 199 ("Even a prosecutor's failure to act on remand will at

some point entitle a defendant to an order of dismissal.").

        Here, the unilateral dismissal by the AUSA of drug charges that had been instituted against

Uboh transpired in a context slightly different from the "terminations" described in the cases cited

above. In this instance, not only were the counts of the indictment that were dismissed originally

part of a larger indictment that gave rise to several convictions, but there was no expressed basis for

the dismissal; as a result, we cannot ascertain with certainty whether the dismissal constitutes

conclusive proof of Uboh's innocence. Actual innocence, however, is not required for a common

law favorable termination. Smith v. Holtz, 87 F.3d 108, 113 (3rd Cir.1996) (citing Restatement of

the Law of Torts §§ 659, 660 (1938)). We find nothing in the record to suggest that the prosecutor's

request to withdraw all drug charges—in the absence of any agreement or compromise involving

Uboh—amounts to anything less than an indication of innocence. Because the drug counts of the

indictment were dismissed after Uboh had already been convicted of credit card fraud, thereby

disposing of all counts of the indictment, there appears to be little risk that the AUSA intended to

renew these charges at a later date; thus, the potential for a renewed prosecution on the same

criminal charges that are implicated in an ongoing malicious prosecution action to result in

inconsistent, parallel proceedings is not present here. The fact that the allegations concerning drug

trafficking were included alongside other charges for which Uboh ultimately was convicted does

not alter our conclusion that the prosecutor's decision to dismiss the drug counts constituted

favorable termination, particularly under the facts of this case. See Janetka v. Dabe, 892 F.2d 187,

190 (2nd Cir.1989) (where plaintiff in malicious prosecution action was convicted on some charges


                                                  10
and acquitted on others, court found that acquittal constituted favorable termination.) Uboh was

charged in the indictment with two distinct offenses, drug importation and credit card fraud. Each

of these offenses contains entirely different elements, neither charge is a lesser-included offense of

the other, and the charges were not tried as part of the same proceeding; in this context, it is

reasonable to interpret the prosecutor's decision to not pursue the drug-related charges as consistent

with (though perhaps not dispositive proof of) a finding of innocence on these specific counts of the

indictment.8

        In sum, we conclude that the dismissal of some charges of the indictment by the

prosecutor—notwithstanding Uboh's earlier conviction on other charges set forth in the

indictment—constituted termination in favor of the accused for purposes of our preliminary inquiry

into the statute of limitations issue raised in this appeal. It is worth noting that the charges involved

in this action were not dismissed pursuant to any agreement among the parties and, under the

particular facts of this case, were extraordinarily unlikely to be renewed in a subsequent action. See

Laster, 353 S.E.2d at 38 ("[Favorable] termination may be caused by the voluntary abandonment

of the case by the party who instituted the prosecution.").

        Having determined that the dismissal of drug charges against Uboh constituted favorable

termination against the accused, we resolve that Uboh's claims for malicious prosecution accrued

on July 21, 1993, the date on which the district court entered its order of dismissal. See Whiting, 85



   8
    Our consideration of these factors is not intended to convey any determination as to whether,
given a different set of circumstances, dismissal of charges that do arise out of the same set of
circumstances as the charges for which a defendant was convicted might constitute termination
in favor of the accused. We only note that the unique combination of factors present in this
particular case further bolsters our conclusion that voluntary dismissal of charges by the
prosecutor is a favorable termination for purposes of malicious prosecution.

                                                   11
F.3d at 585-86 ("[W]here a section 1983 plaintiff is seized following the institution of a prosecution

... and he seeks to recover damages for all the elements of the prosecution, he can properly wait until

the prosecution terminates in his favor to bring his section 1983 claim which alleges that the seizure

was unreasonable.") Because Uboh filed the instant action on June 6, 1994, less than two years after

the claims accrued, the case is not barred by the two-year statute of limitations. The district court

therefore erred in dismissing this case as time-barred.

        We further discern that, had Uboh attempted to file the instant action during the statutory

period proposed by the defendants, his action would have been barred pursuant to the dictates of

Heck v. Humphrey. In that case, the Supreme Court held that § 1983 actions that necessarily call

into question the validity of a conviction or sentence do not accrue until the plaintiff can demonstrate

that the conviction or sentence has been reversed, expunged, or otherwise declared invalid by a

tribunal authorized to make such a finding. See Heck at 487, 114 S.Ct. at 2372. Even assuming, as

the defendants argue, that Uboh's complaint does not fall within the confines of a constitutional

claim for malicious prosecution, there is little doubt that the allegations of fraud and malice with

respect to the wiretap and indictment would, if proven, call into doubt the validity and justification

of the criminal proceedings that were then pending against Uboh.9 In other words, a civil proceeding


   9
    The defendants argument on appeal is, at best, confusing; on the one hand, they submit that
Uboh has failed to state a constitutional claim for malicious prosecution under the Fourth
Amendment, while on the other hand, they suggest that the claim—regardless of what type of
claim it is—should be deemed barred by the statute of limitations. First, we wonder to which
part of the Constitution the defendants perceive this action to refer. Second, we do not
understand the suggestion that, because the plaintiff allegedly has failed to state the requisite
elements of the proposed cause of action, we then should regard his Bivens action as asserting
some unidentified, residual, federal right and dismiss the case on statute of limitations grounds.
If Uboh has failed to state the claim that he proposes he is stating, the case should be dismissed
for failure to state a claim under Fed.R.Civ.P. 12(b)(6); the claim does not transform
automatically into some other indeterminate, unnamed cause of action that is barred by the

                                                  12
challenging the grounds on which the prosecution against Uboh had been commenced indirectly

would implicate the question of Uboh's guilt; this type of parallel inquiry by way of a civil suit prior

to the resolution of a criminal action based on the same set of events is precisely the quandary that

Heck prohibits. The defendants' suggestion that Uboh should have filed his action at the time the

alleged events giving rise to this action transpired would have placed Uboh effectively in a

double-bind: Had he filed the action simultaneously when he discovered the defendants' alleged

misdeeds, his case would have been dismissed under Heck; had he waited to file the action (as he

did) until the criminal proceeding was resolved in his favor, the action would have been dismissed

under the statute of limitations. We decline to adopt a construction of either the complaint or the

applicable law that permanently would preclude the plaintiff from filing any action at all. Rather,

we conclude that the complaint in this case does state a cause of action for malicious prosecution,

that the prosecution did terminate in favor of the accused, and that had the action been filed at the

time these events accrued—as proposed by the defendants—Heck would have barred its

continuation.

                                         III. CONCLUSION

        Uboh asks that we set aside the district court's decision to dismiss this cause of action based

on the statute of limitations. In evaluating the propriety of the district court's order, we must decide

whether a dismissal of some portions of an indictment following a defendant's conviction on other

charges contained in the same indictment constitutes "favorable termination" for purposes of a

subsequent Bivens action for malicious prosecution. We conclude that (1) the district court erred

in failing to treat the complaint filed in this case as a claim for the constitutional tort of malicious



statute of limitations.

                                                  13
prosecution under the Fourth Amendment; (2) Uboh's pro se complaint, which we are bound to

construe liberally, does state a claim for malicious prosecution; (3) the prosecutor's dismissal of

those charges in the indictment underlying the instant action did constitute termination in favor of

the accused; (4) the cause of action stated by Uboh accrued at the time the drug charges were

dismissed; and (5) regardless of the specific constitutional provision under which the complaint is

construed, Heck v. Humphrey dictates that this action could not have been filed prior to the favorable

resolution of the drug charges initially included in the indictment. This cause of action, therefore,

is not barred by the statute of limitations and may proceed. Because the district court has not yet

had an opportunity to address the defendants' claims regarding absolute and qualified immunity, we

decline to consider the merits of those arguments and permit the district court to conduct the

requisite factual and legal analysis in the first instance.

        REVERSED and REMANDED for further proceedings consistent with this opinion.




                                                   14
