Waller v. United States , 100 F. App'x 254 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 2, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-20877
Summary Calendar
ADRIAN WALLER,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA; ET AL.
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellee.
ADRIAN WALLER,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-1014
USDC No. H-02-CV-3235
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
No. 03-20877
-2-
PER CURIAM:*
Adrian Waller appeals the dismissal after a bench trial of
his Federal Tort Claims Act (FTCA) suit against the Government
for malicious prosecution stemming from his arrest after a series
of bank robberies were committed. Waller argues that the
district court erred in concluding that probable cause existed to
arrest him because there was no “real” identification of him as
the man who robbed the Citizens National Bank (CNB). Because he
addresses only his malicious prosecution claim, he waives any
claims for false arrest or false imprisonment. See Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
To establish a malicious criminal prosecution claim under
Texas law, Waller was required to establish, among other things,
the absence of probable cause for the proceedings. See Brown v.
United States, 653 F.2d 196, 198 (5th Cir. 1981); Richey v.
Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). The
district court’s determination that probable cause existed for
Waller’s arrest was not error. See Brown v. Nationsbank Corp.,
188 F.3d 579, 586 (5th Cir. 1999). Robin Robb, Waller’s ex-wife,
identified Waller to Federal Bureau of Investigation Agent Edward
D. Galloway as the robber in an attempted Wells Fargo Bank
robbery from surveillance photographs. A victim teller
*
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that this opinion should not be published and is not precedent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. 03-20877
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identified Waller to Galloway as the robber in the attempted
Wells Fargo Bank robbery from clear photographs of six men
including Waller. Galloway received information from a detective
at the Sugar Land Police Department that victim tellers at the
CNB robbery positively identified the Wells Fargo Bank robber as
the CNB robber based on surveillance photographs taken during the
Wells Fargo Bank attempted robbery. Consequently, Galloway
reasonably could have believed that a crime had been committed
given the facts as the complainant, i.e., Galloway, honestly and
reasonably believed them to be before the criminal proceedings
were instituted. See Richey, 952 S.W.2d at 517. Because
probable cause existed for the proceedings against Waller, Waller
failed to prove his malicious prosecution claim. See id. The
district court’s judgment is AFFIRMED.