Onofre Tommy Serrano v. City of Long Beach;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ONOFRE TOMMY SERRANO,
Plaintiff - Appellant,
v.
CITY OF LONG BEACH; et al.,
Defendants - Appellees.
No. 13-55287
D.C. No. 2:13-cv-00208-UA-PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. King, Chief Judge, Presiding
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
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
FILED
JUL 02 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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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
(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 (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 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 Serrano to supplement his showing of indigency and, if applicable, to
obtain any necessary certification from prison officials.
REVERSED and REMANDED.
13-55287 2

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