                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            OCT 5 1999
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    PHILIP ROBERTS,

                  Plaintiff-Appellant,

    v.                                                    No. 98-4190
                                                    (D.C. No. 98-CV-168-K)
    PAT ROE; PAULA SAWYER;                                 (D. Utah)
    RAYMOND EDWARDS; DAVID
    BATEMAN; DAVID LAMPH,

                  Defendants-Appellees.




                              ORDER AND JUDGMENT          *




Before BRORBY, EBEL , and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Philip Roberts brought this action asserting a variety of claims

under 42 U.S.C. § 1983 as well as state law claims relating to his arrest and

incarceration in Spanish Fork, Utah County, Utah in July 1993. Defendants, who

are employees of the Utah County jail and sheriff’s office, moved for dismissal of

the federal law claims under Fed. R. Civ. P. 12(b)(6) on the basis that the claims

were time-barred and, alternatively, for summary judgment. Although the district

court indicated there were material issues of fact that would preclude summary

judgment, it agreed with defendants that the statute of limitations had run on

plaintiff’s federal law claims, and it granted their motion to dismiss. It also

dismissed plaintiff’s state law claims without prejudice for lack of pendant

jurisdiction. Plaintiff appeals. Reviewing de novo the district court’s dismissal

pursuant to Rule 12(b)(6),   see Sutton v. Utah State Sch. for the Deaf & Blind   ,

173 F.3d 1226, 1236 (10th Cir. 1999), we affirm in part and reverse in part.

      Plaintiff was arrested by a Spanish Fork police officer on July 26, 1993,

and charged by Spanish Fork and Utah County with driving a vehicle without

registration and insurance, operating a vehicle without a driver’s license, and

providing false information to a police officer. He was incarcerated in the Utah

County jail until July 30. The charges filed against him by Utah County, which

plaintiff contends are the only ones at issue in this case, were dismissed on

September 27, 1994. In March 1996, plaintiff filed his first § 1983 complaint


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against the present defendants plus others, and he voluntarily dismissed that

complaint in April 1997. He filed the instant complaint on March 11, 1998.

      The district court held that the four-year statute of limitations provided by

Utah Code Ann. § 78-12-25(3) applied to plaintiff’s § 1983 claims. Because the

court concluded that plaintiff’s claims arose no later than July 30, 1993, it

determined that the statute expired on July 30, 1997, and that plaintiff’s

subsequently filed complaint was too late. On appeal, plaintiff contends that his

claims are not barred by the statute of limitations because his claims matured

sometime after July 30, 1997; defendants fraudulently concealed facts necessary

to discovery of his claims; the limitations period was extended by the savings

provision of Utah Code Ann. § 78-12-40; his claims did not arise until the

criminal charges were dismissed on September 27, 1994; and a longer limitations

period applies to his claims.

      We agree with the district court that Utah’s four-year limitations period

provided by Utah Code Ann. § 78-12-25(3) applies to plaintiff’s § 1983 claims.

See Arnold v. Duchesne County , 26 F.3d 982, 983 (10th Cir. 1994). To determine

whether the statute has run on his claims, we must first determine what claims

plaintiff asserted in his complaint. In its decision, the district court did not

identify plaintiff’s claims, and on appeal the parties disagree on what claims

plaintiff properly presented to the district court.


                                           -3-
       Construing plaintiff’s pleadings liberally because he appears pro se, as

he did in the district court,   see Haines v. Kerner , 404 U.S. 519, 520 (1972), we

conclude that plaintiff asserted the following claims: false arrest; false

imprisonment; deprivation of property without due process; a challenge to his

conditions of confinement; conspiracy; denial of equal protection, apparently

based on religious grounds; denial of right to counsel; infringement on freedom

of speech and religion; abuse of process; and malicious prosecution. Plaintiff

contends that he also asserted a fraud claim, but his mention of fraud in his papers

refers only to defendants’ allegedly fraudulent concealment of facts relating to his

claims and to their litigation tactics, and he did not assert a separate claim for

fraud. Defendants contend that he did not assert a claim for malicious

prosecution, but though he did not use that name, his complaint, liberally

construed, includes a malicious prosecution claim.     1
                                                           Moreover, in his responses to


1
        Plaintiff’s complaint stated that

       The case of the State v. Philip Roberts was on 2 counts of False
       Information in alleged violation of 53-5-217, for not giving up his
       fingerprints and photograph based on a religious conviction and was
       filed in August of 1993, in the Fourth Circuit Court in Spanish Fork,
       Utah. and later dismissed on motion from the county attorney in the
       interest of justice for good and sufficient cause on Sept 27th, 1994.
       One could honestly say that their was a malicious Arrest and abuse of
       the law.

R. Doc. 3 at 15 (sic generally). While we conclude this is sufficient for present
                                                                      (continued...)

                                            -4-
defendants’ motion to dismiss, he referred to a malicious prosecution claim,

including an argument supported by authority regarding when it matured for

statute of limitations purposes.    See R. Doc. 32 at 7.

       Section 1983 claims arise when a plaintiff knows or should know that his

constitutional rights have been violated.    See Beck v. City of Muskogee , ___ F.3d

___, No. 98-7171, slip op. at 7 (10th Cir. Sept. 29, 1999). With the exception of

his malicious prosecution claim, all of plaintiff’s claims relate to his arrest and

incarceration in late July 1993, and such claims are presumed to have accrued at

the time the actions occurred.     See Johnson v. Johnson County Comm’n Bd.    , 925

F.2d 1299, 1301 (10th Cir. 1991). Plaintiff has identified no legitimate reason

why he should not have known of the existence of these claims by the time his

incarceration ended. Because he voluntarily dismissed his first action before the

statute had run, he does not fall within the savings provision of Utah Code Ann.

§ 78-12-40. Since he filed his complaint more than four years after his

incarceration ended, we agree with the district court that all of his claims except

for his malicious prosecution claim are time-barred.

       Plaintiff’s malicious prosecution claim is not time-barred, however. In

situations in which a § 1983 plaintiff has been convicted and is challenging the


1
 (...continued)
purposes to raise a claim of malicious prosecution, we express no opinion on
whether plaintiff has asserted all the requisite elements of such a claim.

                                            -5-
prosecution leading to that conviction, a malicious prosecution claim does not

mature until the conviction has been invalidated.      See Heck v. Humphrey ,

512 U.S. 477, 486-87 (1994). We recently extended the         Heck rule to situations,

such as this one, in which a malicious prosecution claim relates to charges that

have been dismissed, holding that the claim ripens at the time the charges are

dismissed. See Beck , slip op. at 6. Because the charges against plaintiff were not

dismissed until September 1994, and he filed his complaint in March 1998, his

malicious prosecution claim is not barred by the statute of limitations.

Defendants implicitly argue that we should reject plaintiff’s malicious prosecution

claim because he failed to allege pressure or influence by them on the prosecutor

as they contend is required to state a malicious prosecution claim.     See Taylor v.

Meacham , 82 F.3d 1556, 1564 (10th Cir. 1996). Because the district court did not

pass on the substance of this claim, we will not do so in the first instance on

appeal.




                                            -6-
      The judgment of the district court is AFFIRMED in part and REVERSED

in part, and the case is REMANDED to the district court for further proceedings

not inconsistent with this order and judgment. Defendants-appellees’ motion to

strike portions of plaintiff-appellant’s reply brief and supplemental appendix is

DENIED.



                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




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