                                                             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.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                        USDC No. V-99-CV-98
                       --------------------

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that this opinion should not be published and is not precedent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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