                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                February 23, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41651
                          Summary Calendar



SCOTTY LYNN TAYLOR,

                                     Plaintiff-Appellant,

versus

MATT KEIL; JOHN C. GOODSON; THE LAW FIRM
OF KEIL & GOODSON,

                                     Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 5:03-CV-37
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Scotty Lynn Taylor, Texas prisoner # 817710, appeals the

magistrate judge’s grant of summary judgment in favor of the

appellees in this legal malpractice action brought pursuant to

diversity jurisdiction.   At issue is the defendants’

representation of Taylor in connection with a solicitation-of-

capital-murder charge that was dismissed in exchange for Taylor’s

agreement to a civil forfeiture of property seized during a prior

drug offense.    Taylor argues that he introduced “a substantial

     *
       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this opinion should not be published and is not precedent except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.
                           No. 04-41651
                                -2-

amount of evidence” which created genuine issues with regard to

the issues of causation and injury.   He also argues that a jury

should have been allowed to resolve various factual issues,

including his motive in agreeing to the civil forfeiture and the

appellees’ motives in securing the dismissal of the solicitation

charge.

     This court reviews a grant of summary judgment de novo,

applying the same standards as the district court.     Cates v.

Creamer, 431 F.3d 456, 460 (5th Cir. 2005).     A motion for summary

judgment will be granted “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”   FED. R. CIV. P. 56(c).

     An attorney malpractice action in Texas is based on

negligence.   Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989).

A plaintiff asserting attorney malpractice must establish that

“(1) the attorney owed the plaintiff a duty, (2) the attorney

breached that duty, (3) the breach proximately caused the

plaintiff’s injuries, and (4) damages occurred.”     Peeler v. Hugh

& Luce, 909 S.W.2d 494, 496 (Tex. 1995).   In order to show

causation, the plaintiff must, in essence, “prove ‘a suit within

a suit’ by demonstrating that he would have prevailed in the

underlying action but for his attorney’s negligence.”     Schlager
                             No. 04-41651
                                  -3-

v. Clements, 939 S.W.2d 183, 186-87 (Tex. App.—Houston [14th

Dist.] 1996, writ denied).

     Taylor cannot show that the defendants proximately caused

him harm in connection with the solicitation proceeding because

the charge was dismissed with prejudice.    See id.   Accordingly,

Taylor’s averments regarding the motives and intent of the

parties do not undermine the magistrate judge’s grant of summary

judgment.   The magistrate judge’s grant of the defendants’ motion

for summary judgment is affirmed.    See Cates, 431 F.3d at 460;

Rule 56(c).

     AFFIRMED.
