[DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                                No. 11-15649               ELEVENTH CIRCUIT
                                                               JUNE 22, 2012
                            Non-Argument Calendar
                                                                JOHN LEY
                          ________________________
                                                                 CLERK

                      D.C. Docket No. 1:10-cv-04035-RLV

DEXTER WEBB,

                                                        Plaintiff-Appellee,

                                     versus

THE CITY OF RIVERDALE,
AUGUSTUS PALMER, III, a.k.a. Augustus Palmer,
SAMUEL F. PATTERSON, Chief of Police; in his
individual and official capacity as a police officer,
OFFICER VEASNA SRENG, in her individual and
official capacity as a police officer,
CAPTAIN PAUL WEATHERS, in his individual and
official capacity as a police officer,

                                                        Defendants-Appellants,

THE CITY OF RIVERDALE POLICE DEPARTMENT, et al.,

                                                        Defendants.
                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________
                               (June 22, 2012)
Before CARNES, WILSON and COX, Circuit Judges.

PER CURIAM:

      Dexter Webb brought this civil rights action against the City of Riverdale and

various City of Riverdale police officers in their individual and official capacities.

While this action was pending, Webb filed for Chapter 7 bankruptcy protection, but

failed to disclose this pending lawsuit. When the defendants discovered Webb did

not list this case in his bankruptcy petition, they filed a motion for summary judgment

based upon the doctrine of judicial estoppel.

      The district court denied the motion for summary judgment, but dismissed

Webb’s civil action on the ground that only the Trustee in Webb’s Chapter 7

bankruptcy proceeding had standing to pursue the action. The dismissal was without

prejudice.

      On appeal, Webb agrees that he does not have standing to prosecute this case.

His brief states, “Since Appellee filed a Chapter 7 petition, the Trustee became the

real party in interest of Appellee’s claims at the time of his filing. . . . Therefore,

Appellee lost his right to litigate the claim immediately at the time of filing.”

(Appellee’s Br. at 14.)

      Webb’s position is in accord with our precedent. In Parker v. Wendy’s Int’l,

Inc., 

(11th Cir. 2004), we explained that

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      a pre-petition cause of action is the property of the Chapter 7 bankruptcy
      estate, and only the trustee in bankruptcy has standing to pursue it. . . .
      Thus, a trustee, as the representative of the bankruptcy estate, is the
      proper party in interest, and is the only party with standing to prosecute
      causes of action belonging to the estate.

omitted). Therefore, the district court did not err by dismissing

the case on this basis. We affirm the judgment dismissing the action without

prejudice.

      Because Webb did not have standing to prosecute the case, the district court

should have refrained from ruling on the defendants’ motion for summary judgment.

Therefore, we vacate the district court’s order denying the motion. Should the

bankruptcy Trustee abandon this claim back to Webb, and Webb refiles this case,

then the question of judicial estoppel, if raised, would properly be before the court.

      AFFIRMED IN PART, VACATED IN PART.




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