FILED
NOT FOR PUBLICATION MAR 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN WILLIAM DALTON, No. 10-16069
Plaintiff - Appellant, D.C. No. 3:09-cv-05452-SI
v.
MEMORANDUM *
UNITED STATES OF AMERICA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.
John William Dalton, a federal prisoner, appeals pro se from the district
court’s order denying his application for leave to proceed in forma pauperis under
28 U.S.C. § 1915(a), and subsequent judgment dismissing his action alleging
constitutional violations arising from an investigation into his criminal activities
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and subsequent arrest. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the determination that a complaint lacks arguable substance in law or fact,
and review for an abuse of discretion the denial of leave to file a complaint in
forma pauperis. Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir.
1987). We affirm.
The district court did not abuse its discretion by denying Dalton’s request to
proceed in forma pauperis because it appears from the face of the complaint that
the action is Heck-barred. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (an
action for damages is not cognizable under 42 U.S.C. § 1983 if “a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence . . . unless the plaintiff can demonstrate that the conviction or sentence
has already been invalidated”); see also Tripati, 821 F.2d at 1370 (“A district court
may deny leave to proceed in forma pauperis at the outset if it appears from the
face of the proposed complaint that the action is frivolous or without merit.”).
Dalton’s remaining contentions are unpersuasive.
We instruct the clerk to file Dalton’s motion to recuse the district judge, and
deny the motion as moot.
AFFIRMED.
2 10-16069