     Case: 12-10369       Document: 00512062850         Page: 1     Date Filed: 11/26/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 26, 2012
                                     No. 12-10369
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TERRY R. JAMES,

                                                  Plaintiff-Appellant

v.

DALLAS POLICE DEPARTMENT; DALLAS COUNTY                                         DISTRICT
ATTORNEY’S OFFICE; DALLAS POLICE OFFICER 1 & 2,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:12-CV-457


Before JOLLY, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Terry R. James moves for leave to proceed in forma pauperis (IFP) on
appeal. He filed a 42 U.S.C. § 1983 complaint alleging that he was wrongfully
arrested for family violence assault and that he suffered damages when officers
left his alleged victim, a woman James described as his mistress, inside of his
home after his arrest. The district court dismissed his complaint with prejudice
for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and denied


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-10369

him leave to proceed IFP on appeal. It also imposed a sanction of $100 and a bar
to James filing any lawsuit in federal court until the $100 was paid.
      By moving to proceed IFP, James is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s good faith “is
limited to whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted).
      James argues that his warrantless arrest inside of his home, which was
based solely on his alleged victim’s statement to police that James had hit her,
was made without probable cause. He contends that there was no evidence to
support the victim’s version of events and that police entered a calm scene after
he called them to have his alleged victim escorted from his home before his wife
returned.
      To avoid a § 1915(e)(2)(B)(ii) dismissal for failure to state a claim, an IFP
complaint must contain “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.
      Probable cause is required for a warrantless arrest. Deville v. Marcantel,
567 F.3d 156, 164 (5th Cir. 2009). “An officer may conduct a warrantless arrest
based on probable cause that an individual has committed even a minor offense,
including misdemeanors.” Id. at 165. However, “[w]arrantless seizures of a
person inside his home are presumptively unreasonable.               Only exigent
circumstances or consent justify such an arrest.” United States v. Watson, 273
F.3d 599, 602 (5th Cir. 2001) (internal quotation marks and citation omitted).
“The burden is on the government to prove the existence of the exigency.”

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                                   No. 12-10369

United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995). “Exigent circumstances
include those in which officers reasonably fear for their safety, where firearms
are present, or where there is a risk of a criminal suspect’s escaping or fear of
destruction of evidence.” Id. (internal quotation marks and citation omitted).
      Taking all of James’s allegations as true, James’s claim that the police
lacked probable cause to arrest him inside of his home does not lack “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft. “An opportunity should be provided the [plaintiff] to develop his
case at least to the point where any merit it contains is brought to light.”
Howard, 707 F.2d at 220. Whether the facts ultimately establish a valid
wrongful arrest claim is not a question to be answered at this stage of the
proceedings. See id. Accordingly, James’s motion to proceed IFP on appeal is
granted. The district court’s dismissal is vacated and the case is remanded for
further proceedings on James’s claim that he was arrested without probable
cause.
      IFP MOTION GRANTED: VACATED AND REMANDED




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