IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-11197 Conference Calendar

ANSLUN HUTCHINSON, III,

Plaintiff-Appellant,

versus

WICHITA FALLS POLICE DEPARTMENT; PRUITT, detective,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 7:97-CV-172 - - - - - - - - - - April 8, 1998

Before JOLLY, JONES, and DUHÉ, Circuit Judges.

PER CURIAM:*

Anslun Hutchinson, III, Texas prisoner # 16894, appeals from

the dismissal as frivolous of his

complaint

alleging malicious prosecution. Because Hutchinson has not been

exonerated of the charges, his claim has not accrued, and he thus

has no cause of action under § 1983. Heck v. Humphrey,

(1994). A dismissal with prejudice does not preclude a

later claim that meets the preconditions for suit. Johnson v.

McElveen,

(5th Cir. 1996).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-11197 -2-

Hutchinson’s appeal is without arguable merit and thus

frivolous. See Howard v. King,

(5th Cir.

1983). Because the appeal is frivolous, it is DISMISSED. 5th

Cir. R. 42.2.

DISMISSED.