* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

April 5, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-60869

Summary Calendar

 

ERIC LAQUINNE BROWN,

Plaintiff-Appellant,

versus

ROBERT G. SUDDUTH, Investigator, Pontotoc City Police, in

Individual and Official Capacities; MIKE MCGOWAN, Investigator,

Pontotoc County, in Individual and Official Capacities; FRANKY

DANIELS, Ex-Sheriff, in Individual and Official Capacities; LARRY

POOL, Sheriff, in Individual and Official Capacities,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:02-CV-12-D

--------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Eric Laquinne Brown, Mississippi prisoner # K0577, appeals

the district court’s dismissal of his 42 U.S.C. § 1983 action for

failure to state a claim. We previously remanded this matter to

the district court for further development of Brown’s illegal

arrest claim, and a Spears hearing was held. Brown argues that

he was arrested without probable cause or a warrant. Although
No. 03-60869

-2-

the district court concluded that Brown was arrested, the court

determined without explanation that nothing in the facts

indicated that the arrest was unlawful.

According to Brown, he was pulled over by a Pontotoc police

officer for driving without license plates on his vehicle. 

Although Brown explained that his license plates had been stolen

and he apparently had paperwork relating to this, his vehicle was

surrounded by four or five additional police cars and he was told

to go the police station for questioning. One of the officers

unstrapped the holster on his gun and told Brown that he was

going to go down to the station. Feeling threatened, Brown began

to follow the officer’s vehicle. Two police cars pulled behind

Brown and followed him to the station. Once at the station,

Brown was questioned regarding his whereabouts that day. He

answered a few questions but eventually stopped answering

questions and was formally arrested for the murder of his former

girlfriend. The arrest report states that Brown was arrested for

homicide. Brown argues that the law enforcement officers lacked

probable cause or a warrant to arrest him on this charge. He

contends that the law enforcement officers did not have any

evidence linking him to the crime when they arrested him. 

The defendants have not yet answered the complaint, and

Brown’s assertions must be taken as true in evaluating the

dismissal for failure to state a claim. Morin v. Moore, 309 F.3d

316, 319 (5th Cir. 2002). Although it is uncontested that the
No. 03-60869

-3-

stop of Brown’s vehicle for failure to display license plates was

not unlawful, the record is devoid of evidence that there was

probable cause at that time to arrest him for homicide. No

warrant had been issued for Brown’s arrest. Brown has adequately

alleged both the denial of a constitutional right and state

action. See Doe v. Rains County Ind. Sch. Dist., 66 F.3d 1402,

1406 (5th Cir. 1995). Therefore, the district court erred in

dismissing his complaint for failure to state a claim, and we

vacate the district court’s dismissal. We remand to the district

court for further proceedings not inconsistent with this

decision.

VACATED AND REMANDED.