US District Court Judge Virginia Kendall ruled Wednesday that Jussie Smollett’s claim of malicious prosecution by the City of Chicago cannot move forward.

The judge did rule that Smollett can refile the case if he’s found not guilty in his upcoming trial on his original charges of fabricating a racially charged assault.

A grand jury in February re-indicted Smollet on charges he staged a hate crime. Special prosecutor Dan Webb pushed for the charges after Smollett’s original 16 counts were dropped by prosecutors, a move that caused outrage in some quarters.

Webb filed a new six-count indictment against the former Empire star in February. Smollett has pleaded not guilty.

The city has also sued Smollett to recover $130,106 for its investigation into his claims. Smollett filed a counterclaim last November, making his malicious prosecution allegations against the city, detectives Michael Theis and Edward Wodnicki, former Chicago Police Supt. Eddie Johnson and bodybuilding brothers Abimbola and Olabinjo Osundairo.

Smollett has steadfastly maintained his innocence on the charges.