United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 3, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40472
Summary Calendar
WARDELL MOORE,
Plaintiff-Appellant,
versus
ELMO GRANT, JR.; DUSTIN MATHEWS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. V-99-CV-98
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Wardell Moore, Texas prisoner #845237, appeals the
district court’s grant of defendants’ summary-judgment motion and
its dismissal of his civil rights complaint, raising claims of
malicious prosecution and civil conspiracy against the above-named
defendants. We review a district court’s award of summary judgment
de novo. Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
575 (5th Cir. 2003). Summary judgment is appropriate if “there is
no genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c).
Moore argues that, after he pleaded guilty to resisting
arrest in connection with his March 1997, arrest, the defendants
conspired to bring an indictment against him for assaulting a
public servant in connection with that same arrest and that the
defendants’ actions violated the Double Jeopardy Clause and
constituted malicious prosecution. Even assuming that this Court
recognizes a Fourth Amendment right to be free from malicious
prosecution, the summary judgment evidence does not establish the
following required elements of a malicious prosecution claim under
Texas law: the prosecution for the assault charge was caused by
Officers Mathews and Grant; the charge was terminated in favor of
Moore; Moore was innocent of the assault charge; the charge was
brought without probable cause; and the officers, with malicious
intent, caused the prosecution of the assault charge so that Moore
would be punished twice for the same conduct. See Brown v.
Nationsbank Corp., 188 F.3d 579, 586 (5th Cir. 1999); see also
Gordy v. Burns, 294 F.3d 722, 726 (5th Cir. 2002); Evans v. Ball,
168 F.3d 856, 859 (5th Cir. 1999); TEX. PENAL CODE ANN. § 22.01(a) and
(b)(1). Accordingly, the district court did not err in granting
summary judgment with respect to Moore’s malicious prosecution
claims. As Moore’s malicious prosecution claims fail so do does
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his conspiracy claims. Kerr v. Lyford, 171 F.3d 330, at 339 (5th
Cir. 1999).
Moore argues that the Southern District of Texas was
bound under the law of the case doctrine by the Western District’s
finding that his malicious prosecution claims were non-frivolous.
The law of the case doctrine is inapplicable in this case because
the district court in the Western of District of Texas merely
concluded that Moore’s malicious prosecution claims should not be
dismissed pursuant to 28 U.S.C. § 1915(g) and did not render a
final decision with respect to those claims. Cf. Loumar, Inc. v.
Smith, 698 F.2d 759, 762 (5th Cir. 1983).
Moore’s argument that the defendants’ failure to object
to the Western District’s decision not to dismiss his malicious
prosecution claims under 28 U.S.C. § 1915 waived their defenses in
connection with the ultimate litigation of those claims is also
without merit. The district court’s grant of defendants’ summary-
judgment motion and the dismissal of Moore’s civil rights complaint
is therefore AFFIRMED.
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