     Case: 15-20342      Document: 00513359027         Page: 1    Date Filed: 01/27/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-20342                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         January 27, 2016
CHARLES WHATLEY,                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

A. CROSS; LARRY MELTON; JERRY WAXLER; MONTGOMERY COUNTY,
TEXAS,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4-13-CV-3735


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Charles Whatley appeals the district court’s final
judgment dismissing his case with prejudice against Defendants-Appellees A.
Cross, Larry Melton, and Montgomery County, Texas (collectively, the “State
Defendants”) and Jerry Waxler. Briefly, Whatley claims Waxler filed a
knowingly false police report concerning two allegedly harassing text messages


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                        No. 15-20342
he claims Whatley sent him. Whatley also claims the State Defendants relied
on the false report in arresting Whatley even though they knew it to be false.
The arrest caused Whatley to lose his job in private security at an airport even
though he was later acquitted for lack of evidence.
      Whatley filed suit asserting claims against the State Defendants under
42 U.S.C. § 1983 for violations of his constitutional rights, as well as state law
claims against all the defendants under a number of theories, including
conspiracy. Early in the proceeding, the district court dismissed Defendant-
Appellee Montgomery County, Texas, under Fed. R. Civ. P. 12(b)(6) because
Whatley had failed to allege facts showing any official policy that resulted in
the violation of his rights. Whatley does not challenge that dismissal on appeal.
      Defendants-Appellants next filed a motion for summary judgment
seeking dismissal of Whatley’s remaining claims. The district court granted
the motion in full in a detailed memorandum and order taking into account the
applicable law and the summary judgment record. The district court concluded
that Whatley’s § 1983 claims must fail (a) against Waxler because he was not
a state actor, and (b) against the State Defendants because Whatley “failed to
present competent summary judgment evidence supporting his argument that
Defendants Cross and Melton lacked probable cause, or that a reasonable
officer in their position could not have concluded that probable cause existed.” 1
Having dismissed all the federal claims, the district court opted to exercise
supplemental jurisdiction under 28 U.S.C. § 1367(a) over the remaining state
law claims, dismissing them for similar reasons. Relevant to this appeal, the
district court dismissed the state law conspiracy claim because Whatley failed
to present any competent evidence of an agreement between the parties.




      1   Whatley v. Cross, No. H-13-3735, slip op. at 21 (S.D. Tex. May 22, 2015).
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                                       No. 15-20342
      The district court entered a final judgment dismissing all of Whatley’s
claims with prejudice. Whatley appealed, arguing, among other things, that
the summary judgment evidence was sufficient to negate probable cause and
to support his conspiracy claim. Although his original brief on appeal also
discussed other claims, in his reply brief he expressly waived all of his state
law claims (including abuse of process, malicious prosecution, and assault
and/or battery) except for conspiracy. Accordingly, the only claims at issue on
appeal are the federal law claims and the state law conspiracy claim.
      On de novo review, applying the same Rule 56 standards as the district
court, 2 we reach the same conclusions as the district court. Even if Waxler, a
non-state actor (and thus not subject to a § 1983 action), made a false complaint
(a point we do not reach), Whatley has presented no competent evidence that
the State Defendants knew it was false, or that probable cause was otherwise
lacking. Accordingly, from the perspective of the State Defendants, we
conclude that probable cause existed. Similarly, there is no evidence of any
conspiracy between the parties. Although there might conceivably be some
state law basis for imposing liability on Waxler if, in fact, he filed a knowingly
false complaint against Whatley, no such claim is before us now. Thus, as to
the claims at issue on appeal, we affirm the final judgment of the district court
essentially for the reasons set out in its memorandum and order.
      AFFIRMED.




      2   Berquist v. Washington Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007).
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