                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 09 2012

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




                             FOR THE NINTH CIRCUIT



CARLOUS LINDELL DAILY,                           No. 10-55729

               Plaintiff - Appellant,            D.C. No. 2:10-cv-02092-UA-RC

  v.
                                                 MEMORANDUM *
KATHY PROSPER, Warden, individually
and official capacity; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Audrey B. Collins, Chief Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Carlous Lindell Daily, a California state prisoner, appeals pro se from the

district court’s order denying his motion to proceed in forma pauperis (“IFP”) in

his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We


          *
             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).
review de novo the district court's determination that the complaint lacked arguable

substance in law or fact, and for an abuse of discretion the denial of IFP. Tripati v.

First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). We reverse and

remand.

      Daily alleges that defendants failed to deliver his “demand for trial” after he

received notice of an indictment in another state; as a result, he was deprived of his

right to be tried on the new charges within 180 days and his trial took place more

than 60 days later than it otherwise would have. Because, properly pled, an access-

to-courts claim based on these allegations would not “necessarily imply the

invalidity of [his] conviction[,]” the district court erred by denying Daily’s motion

to proceed IFP based on Heck v. Humphrey, 512 U.S. 477 (1994). See Wilkinson

v. Dotson, 544 U.S. 74, 82 (2005) (“Heck is consistent with other cases permitting

prisoners to bring § 1983 challenges to prison administrative decisions”).

      Daily shall bear his costs on appeal.

      REVERSED and REMANDED.




                                           2                                    10-55729
