                                                                             FILED
                            NOT FOR PUBLICATION                              DEC 18 2014

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


KALIF SMYER,                                      No. 14-55406

               Plaintiff - Appellant,             D.C. No. 5:14-cv-00140-UA-AN

  v.
                                                  MEMORANDUM*
UNITED STATES OF AMERICA,

               Defendant - Appellee.


                    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

          *
             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).
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.




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