                                                                             FILED
                             NOT FOR PUBLICATION                              MAR 21 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JOHN WILLIAM DALTON,                              No. 10-16069

               Plaintiff - Appellant,             D.C. No. 3:09-cv-05452-SI

  v.
                                                  MEMORANDUM *
UNITED STATES OF AMERICA; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                              Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

       John William Dalton, a federal prisoner, appeals pro se from the district

court’s order denying his application for leave to proceed in forma pauperis under

28 U.S.C. § 1915(a), and subsequent judgment dismissing his action alleging

constitutional violations arising from an investigation into his criminal activities

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and subsequent arrest. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the determination that a complaint lacks arguable substance in law or fact,

and review for an abuse of discretion the denial of leave to file a complaint in

forma pauperis. Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir.

1987). We affirm.

      The district court did not abuse its discretion by denying Dalton’s request to

proceed in forma pauperis because it appears from the face of the complaint that

the action is Heck-barred. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (an

action for damages is not cognizable under 42 U.S.C. § 1983 if “a judgment in

favor of the plaintiff would necessarily imply the invalidity of his conviction or

sentence . . . unless the plaintiff can demonstrate that the conviction or sentence

has already been invalidated”); see also Tripati, 821 F.2d at 1370 (“A district court

may deny leave to proceed in forma pauperis at the outset if it appears from the

face of the proposed complaint that the action is frivolous or without merit.”).

      Dalton’s remaining contentions are unpersuasive.

      We instruct the clerk to file Dalton’s motion to recuse the district judge, and

deny the motion as moot.

      AFFIRMED.




                                           2                                    10-16069
