Carlous Lindell Daily v. KATHY PROSPER, Warden, individually and official capacity;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOUS LINDELL DAILY,
Plaintiff - Appellant,
v.
KATHY PROSPER, Warden, individually
and official capacity; et al.,
Defendants - Appellees.
No. 10-55729
D.C. No. 2:10-cv-02092-UA-RC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief Judge, Presiding
Submitted December 19, 2011**
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Carlous Lindell Daily, a California state prisoner, appeals pro se from the
district court’s order denying his motion to proceed in forma pauperis (“IFP”) in
his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We
FILED
JAN 09 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

10-55729 2
review de novo the district court's determination that the complaint lacked arguable
substance in law or fact, and for an abuse of discretion the denial of IFP. Tripati v.
First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). We reverse and
remand.
Daily alleges that defendants failed to deliver his “demand for trial” after he
received notice of an indictment in another state; as a result, he was deprived of his
right to be tried on the new charges within 180 days and his trial took place more
than 60 days later than it otherwise would have. Because, properly pled, an access-
to-courts claim based on these allegations would not “necessarily imply the
invalidity of [his] conviction[,]” the district court erred by denying Daily’s motion
to proceed IFP based on Heck v. Humphrey, 512 U.S. 477 (1994). See Wilkinson
v. Dotson, 544 U.S. 74, 82 (2005) (“Heck is consistent with other cases permitting
prisoners to bring § 1983 challenges to prison administrative decisions”).
Daily shall bear his costs on appeal.
REVERSED and REMANDED.

-- 2 of 2 --