Kalif Smyer v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KALIF SMYER,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 14-55406
D.C. No. 5:14-cv-00140-UA-AN
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. King, Chief Judge, Presiding
Submitted December 9, 2014**
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
Kalif Smyer, a federal prisoner, appeals pro se from the district court’s order
denying his request to proceed in forma pauperis (“IFP”) in his Federal Tort
Claims Act (“FTCA”) action alleging negligence. We have jurisdiction under 28
U.S.C. § 1291. We review for an abuse of discretion, O’Loughlin v. Doe, 920 F.2d
FILED
DEC 18 2014
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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614, 616 (9th Cir. 1990), and we reverse and remand.
The district court denied Smyer’s motion to proceed IFP because it
concluded that Smyer’s action failed on the merits. However, it mischaracterized
Smyer’s claim as one for deliberate indifference, when the action was one for
negligence under the FTCA, and the United States is not immune from suit. See
United States v. Muniz, 374 U.S. 150, 153 (1963) (a federal prisoner may maintain
a claim for damages against the United States under the FTCA for injuries
sustained as a result of fault on the part of government employees).
The district court also indicated in its order denying IFP that Smyer had
made an inadequate showing of indigency and had not obtained certification of his
prison account balance from an authorized officer. On remand, the district court
should allow Smyer to supplement his showing of indigency and, if applicable, to
obtain any necessary certification from prison officials.
REVERSED and REMANDED.
14-55406 2

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