United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 13, 2007
Charles R. Fulbruge III
Clerk
No. 06-50279
Summary Calendar
ANDREW D. MCGREW, JR.,
Plaintiff-Appellant,
versus
CRUM, Etc.; ET AL.,
Defendants,
CRUM, Officer, Texas Department of Public Safety,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:05-CV-20
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Andrew D. McGrew, Jr., Texas prisoner # 1317843, moves for
leave to proceed in forma pauperis (IFP) following the district
court’s order denying IFP and certifying that his appeal is not
taken in good faith. The district court had granted summary
judgment in favor of defendant Richard Crum on McGrew’s 42 U.S.C.
§ 1983 complaint and dismissed the case as frivolous or for
failure to state a claim.
*
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this opinion should not be published and is not precedent except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. 06-50279
-2-
McGrew argues that the district court erred in concluding
that Crum had probable cause to arrest him for driving with a
suspended license. He maintains that the district court granted
summary judgment despite the existence of disputed issues of fact
regarding McGrew’s possession of a valid out-of-state license and
Crum’s knowledge that McGrew’s Texas license had been surrendered
before the State had revoked it. McGrew’s “appeal involves
‘legal points arguable on their merits (and therefore not
frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983)(citation omitted). Thus, McGrew is entitled to proceed IFP
on appeal.
This court may, however, address the merits of McGrew’s
claims at the same time as resolving the IFP issue if it is
expedient. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). McGrew cannot show that Crum lacked probable cause to
support the arrest or detention of McGrew. See Beck v. Ohio, 379
U.S. 89, 91 (1964); Brown v. Lyford, 243 F.3d 185, 189 (5th Cir.
2001). Thus, with respect to any claims against Crum in his
individual capacity, McGrew has failed to show that his actions
were “objectively [un]reasonable in light of legal rules clearly
established at the time of the incident.” Jones v. City of
Jackson, 203 F.3d 875, 879 (5th Cir. 2000)(citation and internal
quotation marks omitted).
The district court dismissed any claims against Crum in his
official capacity under a theory of Eleventh Amendment immunity.
No. 06-50279
-3-
McGrew has not, however, challenged this ruling on appeal, and
this court need not address it. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). The
judgment of the district court is thus affirmed.
After McGrew had filed the instant appeal, this court
imposed the filing bar of 28 U.S.C. § 1915(g) against him because
he had three strikes. See McGrew v. Monahans Municipal Court,
No. 06-50394 (5th Cir. Feb. 13, 2007)(unpublished). McGrew is
cautioned that the § 1915(g) bar remains in effect for future
filings.
IFP GRANTED; AFFIRMED; SANCTION WARNING ISSUED.