IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20342

Summary Calendar

CHARLES WHATLEY, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

January 27, 2016

Lyle W. Cayce

Clerk

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No. 15-20342

2

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 DefendantAppellee 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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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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