Michael Grant v. Rod Hopps

FILED
NOT FOR PUBLICATION FEB 19 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL GRANT, No. 12-55941

Plaintiff - Appellant, D.C. No. 5:12-cv-00491-UA-JPR

v.
MEMORANDUM*
ROD HOPPS, Sheriff, San Bernardino
County Sheriffs Department; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding

Submitted February 11, 2013**

Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

Michael Grant appeals pro se from the district court’s order denying him

leave to proceed in forma pauperis (“IFP”) in his 42 U.S.C. § 1983 action. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
determination that a complaint “lack[s] arguable substance in law or fact” and for

an abuse of discretion its denial of leave to proceed IFP. Tripati v. First Nat’l

Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). We reverse and remand.

The district court erred in denying Grant’s motion to proceed IFP because it

determined that the action was barred under Heck v. Humphrey, 512 U.S. 477, 487

(1994). However, the action was not Heck-barred because Grant’s underlying

criminal proceedings were ongoing. See Wallace v. Kato, 549 U.S. 384, 393-94

(2007) (recognizing that Heck applies only when an outstanding criminal

conviction already exists and instructing that civil proceedings should be stayed

while related criminal charges are pending). Accordingly, we reverse and remand

for further proceedings.

REVERSED and REMANDED.

2 12-55941