                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS            May 27, 2003

                       FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                  Clerk


                            No. 02-11138
                          Summary Calendar



     DONALD A. TITTLE, JR.,,

                                          Plaintiff-Appellant,

          versus

     MARK RAINES, ET AL.,

                                          Defendants,

     MARK RAINES and STEVE ROONEY,

                                          Defendants-Appellees.




           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 3:99-CV-478-L



Before GARWOOD, JOLLY and SMITH, Circuit Judges.

PER CURIAM:*

     Donald A. Tittle, Jr., appeals the summary judgment dismissal

of his 42 U.S.C. § 1983 false arrest and malicious prosecution

claims against Mark Raines and Steve Rooney, police officers of the



     *
      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opinion should not be published and is not precedent except under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.
town of Addison, Texas.        The district court, in a thorough and well

considered      opinion,    concluded    that    the    defendants     acted   with

probable cause at all times, and that they enjoyed qualified

immunity.

       With respect to his false arrest claim, Tittle argues that the

defendants not only lacked probable cause to arrest him, but also

misled the judge who issued his arrest warrant.                 In an appeal from

summary judgment, we review the record de novo, “examining the

evidence in the light most favorable to [Tittle], the nonmovant

below.”       Duckett v. City of Cedar Park, Tex., 950 F.2d 272, 276

(5th Cir. 1992).       Once the defendant moves for summary judgment on

qualified immunity, the burden is on the plaintiff to come forward

with proper summary judgment evidence sufficient to sustain a

finding that qualified immunity is lacking.                Salas v. Carpenter,

940 F.2d 299, 306 (5th Cir. 1992).

       There is no cause of action for false arrest under 42 U.S.C.

§   1983   unless     the   arresting    officers      lacked    probable   cause.

Duckett at 278.        A review of the record reveals that at the time

that    the    defendants     arrested       Tittle,    they    had    trustworthy

information sufficient to warrant a prudent person, or one of

reasonable caution, to believe that an offense had been committed.

See United States v. Fortna, 796 F.2d 724, 739 (5th Cir. 1985).

Probable      cause   to    arrest   requires    no    more     than   information

sufficient to warrant a reasonable officer’s belief that there is


                                         2
a “fair probability”–not that it is more likely than not or that

there is not less than a fifty percent chance–that the prospective

arrestee has committed an offense.         USA v. Garcia, 179 F.3d 265,

269 (5th Cir. 1999).    The record reflects that, as the district

court concluded, the defendants acted with probable cause when they

arrested Tittle.

     Moreover, for purposes of qualified immunity, the question is

not simply whether there was probable cause to arrest but is rather

whether all similarly situated reasonable officers would conclude

(contrary to the district court) that probable cause was lacking.

See, e.g., Anderson v. Creighton, 107 S.Ct. 3034, 3040 (1987);

Blackwell v. Barton, 34 F.3d 298, 303-05 (5th Cir. 1994).          On the

undisputed facts here it is clear as a matter of law that not all

reasonable officers would so conclude.

     Tittle also brought a claim against Raines and Rooney for

malicious prosecution, alleging that they acted without probable

cause to prosecute him and omitted exculpatory information from the

case report submitted to the district attorney’s office.          We need

only consider the elements of the tort of malicious prosecution as

defined under   the   Texas   law   to   determine   whether   Tittle   has

established a claim of malicious prosecution.        See Gordy v. Burns,

294 F.3d 722, 726 (5th Cir. 2002).       In determining whether probable

cause existed for purposes of a malicious prosecution claim, we ask

“whether a reasonable officer–at the time when criminal proceedings


                                    3
were instituted and based solely on the facts as the officers

honestly believed them to be–would believe to a ‘fair probability’

that a crime had been committed.”           Gordy, 294 F.3d at 728 (citing

Piazza v. Mayne, 218 F.3d 239, 245-46 (5th Cir. 2000)).

     Although Raines and Rooney had already met with Tittle and his

counsel and were aware of the existence of certain exculpatory

evidence,   at   the   time   of    Tittle’s   prosecution,   the    officers

nevertheless possessed sufficient evidence from which they could

conclude there was a fair probability that Tittle had committed an

offense. See id. at 729 (“[T]he probable cause inquiry does not

require a showing that the officer’s belief was correct or that it

was more likely true than false.”) The district court held that

when the prosecution was instituted the officers had probable cause

to believe Tittle had committed the offense charged.                We agree.

The defendants acted with probable cause to cause the case against

Tittle to go forward and they are, therefore, entitled to qualified

immunity on Tittle’s malicious prosecution claim.

     The summary judgment of the district court is

                                   AFFIRMED.




                                        4
