* 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this opinion should not be published and is not precedent except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

August 17, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-30061

Summary Calendar

 

JAMES CARTER,

Plaintiff-Appellant,

versus

JENELL GODFREY; JOHN LOUIS, individually 

and in their official capacities as Kenner

Police officers; THE CITY OF KENNER,

Defendants-Appellees,

----------------------

Consolidated with

No. 03-30328

----------------------

JAMES CARTER,

Plaintiff-Appellee,

versus

JENELL GODFREY; JOHN LUIS, Individually 

and in their Official Capacities as Kenner

Police Officers; THE CITY OF KENNER,

Defendants-Appellants.

--------------------

Appeals from the United States District Court

for the Eastern District of Louisiana

USDC No. 02-CV-79-M

--------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*
No. 03-30061 c/w 03-30328

-2-

James Carter appeals the district court’s grant of summary

judgment in favor of defendants Jenell Godfrey and John Louis

with respect to the federal and state law claims of malicious

prosecution raised in his 42 U.S.C. § 1983 complaint. Godfrey

and Louis, detectives with the narcotics division of the Kenner,

Louisiana, Police Department, had previously arrested Carter for

obscenity under LA. REV. STAT. ANN. § 14:106 (West 2004), but

Carter was acquitted at trial. Carter has abandoned his

remaining claims against Godfrey, Louis, and the City of Kenner. 

See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d

744, 748 (5th Cir. 1987).

We review a district court’s award of summary judgment de

novo. Banks v. East Baton Rouge Parish Sch. Bd., 320 F.3d 570,

575 (5th Cir. 2003). In Castellano v. Fragozo, 352 F.3d 939, 945

(5th Cir. 2003), we held that there is no “freestanding

constitutional right to be free from malicious prosecution” and

that a 42 U.S.C. § 1983 malicious prosecution claim must be based

on a specific constitutional violation, rather than a violation

of state law. Carter concedes that, in light of Castellano, he

could not bring a malicious prosecution claim under 42 U.S.C.

§ 1983 but argues that the district court’s grant of summary

judgment was nevertheless erroneous because he raised meritorious

claims that he was arrested without probable cause under the

Fourth Amendment and that Godfrey and Lewis violated his right to

due process at trial.
No. 03-30061 c/w 03-30328

-3-

Carter does not challenge the district court’s finding that,

because he conceded he was in his yard with his pants open, there

was probable cause to arrest him. Accordingly, Carter has shown

no error with respect to the district court’s dismissal of his

Fourth Amendment claim or his state law claim of malicious

prosecution, which requires a showing of no probable cause. See

Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994); Vance v.

Nunnery, 137 F.3d 270, 274 (5th Cir. 1998); Miller v. East Baton

Rouge Parish Sheriff’s Department, 511 So. 2d 446 (La. 1987). In

addition, although Carter’s version of the events on the day in

question differ from the officers’ versions, his assertion that

their accounts in the police report and at trial were

intentionally false is conclusional and wholly unsupported by

evidence in the record, and therefore, fails to create a genuine

issue of material fact. See Orthopedic & Sports Injury Clinic v.

Wang Lab., Inc., 922 F.2d 220, 225 (5th Cir. 1991); see also Koch

v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). The lack of

evidence of false statements or perjury was an additional basis

for the district court’s grant of summary judgment. Accordingly,

the district court’s grant of summary judgment and dismissal of

Carter’s civil rights complaint are AFFIRMED.

In a consolidated appeal, Godfrey, Louis, and the City of

Kenner appeal the district court’s denial of their motion for

attorneys’ fees. The district court’s denial of this motion is

AFFIRMED as we find no abuse of discretion in the district
No. 03-30061 c/w 03-30328

-4-

court’s ruling. See Walker v. City of Bogalusa, 168 F.3d 237,

239 (5th Cir. 1999). 

AFFIRMED.