Bustos v. City of El Paso Texas , 178 F. App'x 418 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 5, 2006
Charles R. Fulbruge III
Clerk
No. 04-50305
Summary Calendar
VICTOR BUSTOS, SR.,
Plaintiff-Appellant,
versus
CITY OF EL PASO TEXAS; EL PASO POLICE DEPARTMENT, Narcotics
Division; CESAR DIAZ, Narcotics Detective; JOHN MASIAS,
Narcotics Detective; RUBEN TREJO, Narcotics Detective; JAIME
ESPARZA, District Attorney; HOLLY LYTLE, Assistant District
Attorney,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-04-CV-3-PRM
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Victor Bustos, Sr., Texas prisoner #1018856, seeks to
proceed in forma pauperis (“IFP”) to appeal the dismissal of his
42 U.S.C. § 1983 complaint for failure to state a claim. Bustos
alleged, inter alia, that El Paso Narcotics Division Detective
Ruben Trejo initiated a traffic stop of his van on the orders of
Detective Cesar Diaz, despite lack of probable cause. He also
*
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this opinion should not be published and is not precedent except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. 04-50305
-2-
alleged that Detective John Masias made false statements in an
affidavit regarding marijuana that was found in his van during
the stop.
By moving to proceed IFP, Bustos is challenging the district
court’s certification that his appeal was not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997);
28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). Our review of
the record indicates that Bustos’s allegations state a claim
under the Fourth Amendment. See e.g., Estep v. Dallas County,
Texas, 310 F.3d 353, 356 & n.1 (5th Cir. 2002). Whether the
facts ultimately will prove a Fourth Amendment claim is not a
question to be answered at this stage of the proceedings. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, the motion to proceed IFP is GRANTED. The
district court’s dismissal of Bustos’s claims against the El Paso
Police Department Narcotics Division and the City of El Paso, and
its dismissal of any claims against district attorneys Esparza
and Lytle, are affirmed. As to Bustos’s claim that his Fourth
Amendment rights were violated when Detectives Trejo and Diaz
conducted a traffic stop without probable cause, the judgment and
certification decision are VACATED, and the case is REMANDED for
further proceedings.
IFP GRANTED; AFFIRMED IN PART, VACATED AND REMANDED IN PART.