Onofre Serrano v. City of Long Beach

MEMORANDUM

Onofre Tommy Serrano 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 alleging various constitutional violations. We have jurisdiction under 28 U.S.C. § 1291 . We review for an abuse of discretion the district court’s 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 denied Serrano’s motion to proceed IFP because it determined that the action was barred under Heck v. Humphrey, 512 U.S. 477, 487 , 114 S.Ct. 2364 , 129 L.Ed.2d 383 (1994). However, the action was not Heck-barred because Serrano did not allege that he had been convicted, and it was not clear from the allegations in the complaint whether his criminal proceedings were ongoing or had concluded. See Wallace v. Kato, 549 U.S. 384, 393-94 , 127 S.Ct. 1091 , 166 L.Ed.2d 973 (2007) (recognizing that Heck applies only when an outstanding criminal conviction already exists and noting that civil proceedings may be stayed while related criminal charges are pending).

The district court also indicated in its order denying IFP that Serrano…