PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY JEROME BROOKS,

Plaintiff-Appellant,

v.

CITY OF WINSTON-SALEM, NORTH

No. 94-7063

CAROLINA; M. N. BARKER,

individually and as a City Police

Officer,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

Paul Trevor Sharp, Magistrate Judge.

(CA-94-80)

Argued: January 31, 1996

Decided: June 3, 1996

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed in part, reversed in part, and remanded for further proceedings by published opinion. Judge Wilkins wrote the opinion, in which

Judge Niemeyer and Judge Michael joined.

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COUNSEL

ARGUED: Romallus Olga Murphy, Sr., Greensboro, North Carolina,

for Appellant. Ursula Marie Henninger, WOMBLE, CARLYLE,

SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina,
for Appellees. ON BRIEF: Gusti W. Frankel, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellees.

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OPINION

WILKINS, Circuit Judge:

Larry Jerome Brooks brought this action pursuant to 42 U.S.C.A.

§ 1983 (West 1994), seeking monetary damages for alleged violations

of his rights under the Fourth, Fifth, and Fourteenth Amendments in

connection with his arrest and prosecution on state criminal charges.

Concluding that Brooks' action was barred by the applicable statute

of limitations, the magistrate judge1 entered judgment in favor of

Appellees, the City of Winston-Salem, North Carolina, and the arresting officer, M. N. Barker, in his individual and official capacities. We

affirm in part, reverse in part, and remand for further proceedings.

I.

Brooks was arrested on charges of kidnapping, rape, and other sexual offenses on June 28, 1989. He vigorously asserted his innocence

and offered to submit to polygraph and DNA testing. The charges

against him were ultimately dismissed by a state prosecuting attorney

on February 18, 1991. Almost three years later, on February 17, 1994,

Brooks filed this lawsuit. His first cause of action charged that Officer

Barker violated his rights under the Fourth and Fourteenth Amendments by illegally seizing him without probable cause and his rights

under the Fifth and Fourteenth Amendments by depriving him of liberty without due process of law. He further maintained that Officer

Barker should have attempted to have the criminal proceedings terminated after he knew or should have known that Brooks had not committed the offenses. His second cause of action charged that the City

maintained policies of failing to adequately train, supervise, and control officers in investigation and arrest procedures.

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1 The parties consented to submission of the case to a magistrate judge

for final resolution. See 28 U.S.C.A. § 636(c) (West 1993).

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The magistrate judge granted Appellees' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), reasoning that

Brooks' action was time barred because he had not filed it within

three years of the date of his arrest. Brooks appeals, claiming that his

action was timely with respect to Officer Barker because it was filed

within three years of the date the charges were dismissed.2

II.

We review de novo the decision of the lower court to grant a

motion to dismiss pursuant to Rule 12(b)(6), recognizing that dismissal is inappropriate unless, accepting as true the well-pleaded facts

in the complaint and viewing them in the light most favorable to the

plaintiff, "it appears to a certainty that the plaintiff would be entitled

to no relief under any state of facts which could be proved in support

of his claim." Mylan Lab., Inc. v. Matkari , 7 F.3d 1130, 1134 & n.4

(4th Cir. 1993) (internal quotation marks omitted), cert. denied, 114

S. Ct. 1307 (1994). Although a motion pursuant to Rule 12(b)(6)

invites an inquiry into the legal sufficiency of the complaint, not an

analysis of potential defenses to the claims set forth therein, dismissal

nevertheless is appropriate when the face of the complaint clearly

reveals the existence of a meritorious affirmative defense. Richmond,

F. & P. R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993). See generally

5A Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 1357, at 352 (1990) ("A complaint showing that the statute of limitations has run on the claim is the most common situation

in which the affirmative defense appears on the face of the pleading,"

rendering dismissal appropriate.)

The parties agree that because the state limitations period governing a claim for damages for personal injuries applies to a § 1983

action, regardless of the allegations in the complaint, the three-year

statute of limitations set forth in N.C. Gen. Stat.§ 1-52(5) (1995) con-

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2 Brooks offers no argument concerning the accrual of his § 1983

action against the City, and therefore we deem him to have abandoned

this portion of his appeal. See 11126 Baltimore Blvd., Inc. v. Prince

George's County, Md., 58 F.3d 988, 993 n.7 (4th Cir.) (en banc), cert.

denied, 116 S. Ct. 567 (1995). Consequently, we affirm the dismissal of

Brooks' allegations against the City.

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trols. See Wilson v. Garcia, 471 U.S. 261, 276 (1985); National

Advertising Co. v. City of Raleigh, N.C., 947 F.2d 1158, 1161-62 &

n.2 (4th Cir. 1991), cert. denied, 504 U.S. 931 (1992). Thus, the first

question before us is when the limitations period began to run.

Although the applicable state statute of limitations supplies the

length of the limitations period in a § 1983 action, the time of accrual

of the cause of action is a matter of federal law. Nasim v. Warden,

Md. House of Correction, 64 F.3d 951, 955 (4th Cir. 1995) (en banc),

cert. denied, 116 S. Ct. 1273 (1996). "Under federal law a cause of

action accrues when the plaintiff possesses sufficient facts about the

harm done to him that reasonable inquiry will reveal his cause of

action." Id. In order to determine when a claimant possessed sufficient facts to know or have reason to know of the alleged injury, we

may look to the common-law cause of action most closely analogous

to the constitutional right at stake as an "`appropriate starting point.'"

Heck v. Humphrey, 114 S. Ct. 2364, 2370-71 (1994) (quoting Carey

v. Piphus, 435 U.S. 247, 258 (1978)); Calero-Colon v. BetancourtLebron, 68 F.3d 1, 3 (1st Cir. 1995).

Viewed in the light most favorable to Brooks, his complaint alleges

that his seizure was unreasonable and that he was deprived of due

process, in violation of the Fourth and Fourteenth Amendments,

because his arrest was not supported by probable cause and because

his prosecution was continued after it was apparent that he was innocent. These claims are analogous to two common-law causes of action

--false arrest and malicious prosecution. Heck , 114 S. Ct. at 2371. At

common law, allegations that a warrantless arrest or imprisonment

was not supported by probable cause advanced a claim of false arrest

or imprisonment. See id.; Calero-Colon , 68 F.3d at 3-4; Singer v. Fulton County Sheriff, 63 F.3d 110, 117 (2d Cir. 1995), cert. denied, 64

U.S.L.W. 3755, 3762 (U.S. May 13, 1996) (No. 95-1452). A claim of

false arrest permitted the recovery of damages from"`the time of

detention up until issuance of process or arraignment, but not more.'"

Heck, 114 S. Ct. at 2371 (quoting W. Page Keeton et al., Prosser and

Keeton on the Law of Torts § 119, at 888 (5th ed. 1984)); CaleroColon, 68 F.3d at 4; Singer, 63 F.3d at 117. However, allegations that

an arrest made pursuant to a warrant was not supported by probable

cause, or claims seeking damages for the period after legal process

issued, are analogous to the common-law tort of malicious prosecu-

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tion. Heck, 114 S. Ct. at 2371; Calero-Colon, 68 F.3d at 4; Singer,

63 F.3d at 117. Because the allegations contained in Brooks' complaint do not specify whether his arrest was made pursuant to a warrant, we consider the timeliness of Brooks' claims under both

scenarios.

A.

The magistrate judge apparently viewed Brooks' § 1983 complaint

as alleging an unlawful warrantless arrest and held that such a claim

accrued on the date of his arrest. We agree that this was the appropriate time of accrual of Brooks' claim to the extent that it charges a

warrantless arrest unsupported by probable cause. There is no question that on the day of his arrest Brooks knew or should have known

both of the injury resulting from his allegedly illegal seizure and who

was responsible for any injury. See Nasim, 64 F.3d at 955. This conclusion accords with the decisions of the other courts of appeals that

have addressed the question. See Davis v. Ross , 995 F.2d 137, 138

(8th Cir. 1993) (per curiam); Johnson v. Johnson County Comm'n

Bd., 925 F.2d 1299, 1300-01 (10th Cir. 1991); Rose v. Bartle, 871

F.2d 331, 350-51 (3d Cir. 1989); McCune v. City of Grand Rapids,

842 F.2d 903, 906 (6th Cir. 1988); Mack v. Varelas, 835 F.2d 995,

999-1000 (2d Cir. 1987); Davis v. Harvey, 789 F.2d 1332, 1333 n.1

(9th Cir. 1986); Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir. 1971).

Brooks asserts, however, that the recent Supreme Court decision in

Heck v. Humphrey, 114 S. Ct. 2364 (1994), dictates a different conclusion. Under Heck, Brooks maintains, a cause of action alleging an

unconstitutional seizure accomplished by a warrantless arrest without

probable cause does not accrue until the criminal proceedings against

the accused are terminated in his favor.

In Heck, the Supreme Court held:

[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 tri-

 5
bunal authorized to make such determination, or called into

question by a federal court's issuance of a writ of habeas

corpus . . . .

Id. at 2372 (footnote omitted). The Court explained that this holding

meant that a § 1983 cause of action seeking monetary damages attributable to a conviction or sentence and raising challenges that necessarily would implicate the validity of a plaintiff's conviction or

sentence does not accrue until that conviction or sentence is reversed,

etc. Id. at 2372-74.

We do not read Heck to compel a conclusion that all claims of

unconstitutional seizure accrue only upon a termination of the criminal proceedings favorable to the § 1983 plaintiff. Heck did not purport

to address the accrual of a § 1983 cause of action for damages resulting from actions that would not implicate the validity of a conviction

or sentence. And, a charge that probable cause for a warrantless arrest

was lacking, and thus that the seizure was unconstitutional, would not

necessarily implicate the validity of a subsequently obtained

conviction--at least in the usual case. See Simpson v. Rowan, 73 F.3d

134, 135-36 (7th Cir. 1995); cf. Heck, 114 S. Ct. at 2372 n.6 (setting

forth an example of a claim of unconstitutional warrantless seizure

that necessarily would implicate the validity of a conviction and thus

would not accrue until the conviction is set aside or other favorable

termination of the criminal proceeding is obtained). Further, as the

Heck Court specifically explained, a § 1983 action that would not render a conviction or sentence 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. Id. at 2372 & n.7. 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 plaintiff, then these claims

must have accrued.

In sum, we do not read Heck as altering the general rule that a

§ 1983 claim seeking damages for an allegedly unconstitutional warrantless arrest accrues when the plaintiff knows or should know of the

injury--except in the limited circumstances, not present here, when

a § 1983 plaintiff's success on a claim that a warrantless arrest was

 6
not supported by probable cause necessarily would implicate the

validity of the plaintiff's conviction or sentence. See Simpson, 73 F.3d

at 136; Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995); Woods v.

Candela, 47 F.3d 545, 546 (2d Cir.) (per curiam), cert. denied, 116

S. Ct. 54 (1995).3 Thus, to the extent that Brooks' complaint may be

read to allege an unconstitutional warrantless arrest, his claim is time

barred.

B.

Viewed in the light most favorable to Brooks, the allegations in his

complaint may also be construed as seeking monetary damages,

occurring after the issuance of process or arraignment, for an unconstitutional seizure that was accomplished pursuant to a warrant and

was prolonged after Officer Barker knew or should have known

Brooks was innocent.4 Because§ 1983 actions seeking damages for

unconstitutional arrest or confinement imposed pursuant to legal

process--claims most analogous to the common-law tort of malicious

prosecution--must allege and prove a termination of the criminal proceedings favorable to the accused, such claims do not accrue until a

favorable termination is obtained. Heck, 114 S. Ct. at 2371; Morrison

v. Jones, 551 F.2d 939, 940-41 (4th Cir. 1977); accord Simpson, 73

F.3d at 136 n.4; Calero-Colon, 68 F.3d at 3-4; Singer, 63 F.3d at 117-

18. Consequently, the claim against Officer Barker is not time barred

to the extent that Brooks alleges that his arrest warrant--applied for

and executed by Officer Barker--was not supported by probable

cause or that the officer continued the prosecution after he knew or

should have known that Brooks was innocent.

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3 In the wake of the Heck decision, two courts of appeals have ruled

that § 1983 actions for unconstitutional warrantless arrest did not accrue

until the plaintiffs' resulting convictions were overturned. See Wells, 45

F.3d at 94-95; Woods, 47 F.3d at 546. However, these courts did not

announce results contrary to the one we reach today because in both

decisions the courts ruled that proof of the invalidity of the arrest in the

§ 1983 action necessarily would have implicated the validity of the conviction. Wells, 45 F.3d at 95; Woods , 47 F.3d at 546.

4 For convenience, we refer to these claims as Brooks' § 1983 malicious prosecution claims.

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III.

Having concluded that Brooks' § 1983 malicious prosecution

claims are not time barred, we turn to consider whether these allegations state a claim upon which relief may be granted.

A.

Brooks first asserts that Officer Barker violated his rights under the

Fourth Amendment by unreasonably seizing his person--allegations

that, as noted above, are broad enough to encompass a claim that legal

process issued without probable cause. The Fourth Amendment prohibits law enforcement officers from making unreasonable seizures,

and seizure of an individual effected without probable cause is unreasonable. See Graham v. Connor, 490 U.S. 386, 396-97 (1989). Thus,

Brooks' allegations that Officer Barker seized him pursuant to legal

process that was not supported by probable cause and that the criminal proceedings terminated in his favor are sufficient to state a § 1983

malicious prosecution claim alleging a seizure that was violative of

the Fourth Amendment.5

B.

Brooks next charges that Officer Barker's failure to attempt to terminate the criminal proceedings after it became clear that Brooks was

innocent deprived him of his constitutional rights under the Fourth

and Fourteenth Amendments. We conclude that these allegations fail

to state a claim upon which relief may be granted.

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5 We recognize that actual malice is an element of a malicious prosecution claim at common law. See, e.g., Calero-Colon, 68 F.3d at 3 n.5.

And, common-law principles "provide the appropriate starting point for"

determining the elements of § 1983 actions. Heck, 114 S. Ct. at 2370

(internal quotation marks omitted). However, the Supreme Court has

indicated that the reasonableness of a seizure under the Fourth Amendment should be analyzed from an objective perspective. See Graham,

490 U.S. at 396-97, 399 ("The Fourth Amendment inquiry is one of

`objective reasonableness' under the circumstances, and subjective concepts like `malice' and `sadism' have no proper place in that inquiry.").

Thus, we conclude that the subjective state of mind of the defendant,

whether good faith or ill will, is irrelevant in this context. Id. at 397.

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As we recently explained, the Due Process Clause of the Fourteenth Amendment does not provide protection in this area. Taylor v.

Waters, 81 F.3d 429, 435-36 (4th Cir. 1996). The Supreme Court has

rejected the proposition that a defendant possesses a liberty interest

in avoiding prosecution upon less than probable cause. Id. at 436 (recognizing that a majority of the Supreme Court has rejected the existence of substantive due process protection in this area). And, the

Fourth Amendment provides all of the pretrial process that is constitutionally due to a criminal defendant in order to detain him prior to

trial. Id. at 435-36. Thus, Brooks' claim that Officer Barker failed to

attempt to have the criminal proceedings terminated after it became

apparent that Brooks was not the perpetrator fails to state a claim

upon which relief may be granted.6

Furthermore, the Fourth Amendment "requires that arrests be made

based upon probable cause and that a neutral and detached judicial

officer evaluate probable cause as a condition of significant pretrial

restraint of liberty." Id. at 436. Once a pretrial seizure has been rendered reasonable by virtue of a probable cause determination by a

neutral and detached magistrate, the continuing pretrial seizure of a

criminal defendant--either by detention or by bond restrictions--is

reasonable. See id.7 Therefore, Officer Barker's failure to attempt to

have the criminal charges against Brooks dismissed after a determination of probable cause had been made by a neutral detached magistrate did not render Brooks' continuing pretrial seizure unreasonable

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6 The decision of this court in Gay v. Wall, 761 F.2d 175, 178-79 (4th

Cir. 1985), does not compel a different conclusion. In Gay, this court distinguished Baker v. McCollan, 443 U.S. 137 (1979), and stated that

despite the existence of probable cause at the time of Gay's arrest, a

showing that officers continued to detain him in custody after they knew

him to be innocent deprived Gay of due process. Gay, 761 F.2d at 178-

79. The reasoning of Gay--that a defendant is deprived of substantive

due process by continued prosecution in the absence of probable cause--

was rejected by the Supreme Court in Albright v. Oliver. Taylor, 81 F.3d

at 436 (citing Albright v. Oliver, 114 S. Ct. 807, 810-14 (1994) (plurality); id. at 819-22 (Souter, J., concurring in judgment)).

7 Of course, the judicial determination of probable cause does not

"break[ ] the causal chain between the application for the warrant and the

improvident arrest" if the officer who sought the warrant did not possess

probable cause. Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986).

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under the Fourth Amendment. Consequently, this claim does not

allege the deprivation of any right guaranteed by the Fourth Amendment.

IV.

To summarize, we hold that the magistrate judge properly dismissed as time barred Brooks' § 1983 claim for monetary damages to

the extent that it was based upon an allegedly unconstitutional warrantless arrest. The court, however, erred in concluding that Brooks'

action was untimely to the extent that his complaint alleged an unconstitutional arrest accomplished pursuant to a warrant, an unconstitutional initiation of legal process, and an unconstitutional failure to

terminate the prosecution. Nevertheless, because we conclude

Brooks' allegations fail to state a § 1983 claim for a violation of his

rights under the Fifth8 and Fourteenth Amendments, the Rule 12(b)(6)

dismissal of these causes of action must be affirmed. And, to the

extent that Brooks alleges that Officer Barker failed to attempt to dismiss the criminal charges after it became clear that Brooks was innocent, his complaint also fails to state a § 1983 claim alleging a

violation of the Fourth Amendment. Brooks' allegations that his arrest

was effected pursuant to a warrant that was not based upon probable

cause, or that the legal proceedings against him were not initiated

upon probable cause, does state a claim upon which relief may be

granted; a remand for further proceedings with respect to this claim

is required.9 Accordingly, we affirm in part, reverse in part, and

remand for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

FOR FURTHER PROCEEDINGS

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8 Brooks fails to state a claim under the Fifth Amendment because he

"has not alleged any conduct on the officer's part that even arguably is

governed by that amendment." Taylor, 81 F.3d at 437 n.6.

9 We express no opinion concerning the merits, or Officer Barker's

entitlement to qualified immunity, limiting our decision merely to the

conclusion that these allegations state a claim upon which relief may be

granted and are not time barred.

 10