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


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  •                                                        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    this opinion should not be published and is not precedent except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.
    

Document Info

Docket Number: 04-50305

Citation Numbers: 178 F. App'x 418

Judges: Davis, Jolly, Owen, Per Curiam

Filed Date: 5/5/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023