PUBLISH

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                           _______________

                             No. 95-8557
                           _______________

                  D. C. Docket No. 1-94-CV-1984-RLV


GEORGE N. UBOH,

                                                 Plaintiff-Appellant,


                               versus


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.,
FRANK SMITH, Agent, Drug Enforcement Admin.,

                                              Defendants-Appellees.

                   ______________________________

          Appeal from the United States District Court
              for the Northern District of Georgia
                 ______________________________
                           (May 18, 1998)


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




     *
      Honorable William C. O’Kelley, Senior U. S. District Judge
for the Northern District of Georgia, sitting by designation.
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 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

     1
      Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 

, 

, 

(1971).

                                    2
     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,

                                  3
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 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


     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.

                                  4
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, 

,

, 

(1994), his claims did not accrue

until the criminal charges against him were dismissed. The district

court denied the motion for reconsideration.

                                   5
     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 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




     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.

                                  6
                         II. DISCUSSION

     We independently review the district court’s ruling concerning

the applicable statute of limitations. Byrd v. MacPapers, Inc., 

, 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, 

, 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. 

of when the limitations period begins to

run, however, is one of federal law. See Wilson v. Garcia, 

, 268-71, 

, 1942-44, 

(1985).

Here, the district court construed Uboh’s claim of malicious

prosecution solely as a state law cause of action and noted that “the

                                 7
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 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 

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

                                    8
under § 1983.4 In Whiting v. Traylor, 

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


      4
      See Strength v. Hubert, 

, 426 n.5 (11th Cir. 1988)
(“[F]reedom from malicious prosecution is a federal right protected
by § 1983. . . .”); Accord Sanders v. English, 

, 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, 

, 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, 

, 

, 

(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 

at 

(“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.

                                  9


accord Singer v. Fulton County Sheriff, 

, 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, 

, 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




                                    10
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 charges against him that relate to this case

were resolved in his favor.6 In response, the defendants submit that

      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
      The drug charges initially brought against Uboh were
dismissed on July 21, 1993. Uboh filed this action on July 28,

                                  11
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

n.7 (“Where an arrest is made after the filing

of an information and the arrest is the basis of a Fourth Amendment


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.

                                     12
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, 

, 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

favor of the accused. See Kelly v. 

; Heck

v. Humphrey, 

, 484, 

, 2371, 

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.”).


                                 13
     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

      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.

                                  14
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 

, 114 S.

Ct. at 2371. Courts have further reasoned that “only terminations

that indicate that the accused is innocent ought to be considered

favorable.” 

(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, 

, 456

(5th Cir. 1994) (per curiam) (same); Singleton v. City of New York,

, 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., 

(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

                                  15
purposes of bringing a malicious prosecution claim.”); Laster v. Star

Rental, Inc., 

, 

, 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 

; Hygh v. Jacobs, 

,

368 (2nd Cir. 1992), or where a conviction has been reversed and the

cause expressly remanded for retrial, see Brandley v. Keeshan, 

, 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,

                                  16
e.g. 

(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 requisite element of

favorable termination of the criminal action.”) (internal quotation

marks and citation omitted); 

(“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, 

, 113 (3rd Cir. 1996) (citing

                                 17
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, 

, 190 (2nd Cir. 1989) (where plaintiff in malicious prosecution

                                   18
action was convicted on some charges 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



      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.

                                  19
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 

(“[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 

-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

                                    20
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 

. 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

                                   21
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 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

      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
statute of limitations.

                                    22
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

                                   23
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 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

                                    24
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.




                                   25