Michael Grant v. ROD HOPPS, Sheriff, San Bernardino County Sheriffs Department;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL GRANT,
Plaintiff - Appellant,
v.
ROD HOPPS, Sheriff, San Bernardino
County Sheriffs Department; et al.,
Defendants - Appellees.
No. 12-55941
D.C. No. 5:12-cv-00491-UA-JPR
MEMORANDUM*
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
FILED
FEB 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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.
12-55941 2

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