1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 ABDELFATAH ELLAWENDY, 11 Case No. 20-02708 BLF (PR) Petitioner, 12 ORDER DIRECTING v. RESPONDENT TO FILE 13 OPPOSITION TO AMENDED PETITION OR STATEMENT OF 14 MONTEREY COUNTY SUPERIOR NON-OPPOSITION; STRIKING COMPLAINT COURT, 15 Respondent. (Docket Nos. 2, 5) 16

17 18 Petitioner, a state parolee, filed a pro se petition for a writ of habeas corpus under 19

challenging his 2019 state conviction out of Monterey County. Dkt. No. 20 1. The Court found the only cognizable claim in the petition was the claim challenging the 21 voluntary nature of Petitioner’s plea and dismissed all other claims. Dkt. No. 6. On 22 January 27, 2021, Respondent filed an answer on the merits, Dkt. No. 12-1, (“Ans.”). 23 Nearly six months later on July 8, 2021, Petitioner filed a document entitled 24 “petition for a writ of habeas corpus,” which the Court construes as a motion for leave to 25 file an amended petition. Dkt. No. 15. It does not appear that Petitioner served this 26 document on Respondent. Accordingly, the Court will set briefing on the issue of whether 27 Petitioner should be permitted to file an amended petition at this late stage in the 1 Petitioner also filed an “Amended Complaint,” against the Monterey County Office 2 of the Public Defender and his attorney, Mr. Michael Belter. Dkt. No. 13. Petitioner seeks 3 injunctive relief and damages.

. If Petitioner wants to pursue a civil rights action 4 under

, he must file it as a new action and be subject to the related filing 5 fees. However, it would be premature for him to do so at this time. As Petitioner was 6 previously advised in the Court’s Order of Partial Dismissal and to Show Cause, damages 7 may be available through an action filed under § 1983. Dkt. No. 6. However, in order to 8 recover damages for an allegedly unconstitutional conviction or imprisonment, or for other 9 harm caused by actions whose unlawfulness would render a conviction or sentence invalid, 10 a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct 11 appeal, expunged by executive order, declared invalid by a state tribunal authorized to 12 make such determination, or called into question by a federal court's issuance of a writ of 13 habeas corpus. Heck v. Humphrey,

(1994). A claim for damages 14 bearing that relationship to a conviction or sentence that has not been so invalidated is not 15 cognizable under § 1983. Id. at 487. Accordingly, Petitioner may only pursue a § 1983 16 action for damages only if he prevails in this habeas action. In other words, Petitioner 17 must wait until the successful conclusion of this habeas action to file a separate § 1983 18 action for damages. Accordingly, the “amended complaint” shall be stricken from this 19 action. 20 21 CONCLUSION 22 For the foregoing reasons and for good cause shown, 23 1. The Clerk shall indicate on the docket that the petition filed under Docket 24 No. 15 is a “Proposed Amended Petition.” Dkt. No. 15. In light of this proposed amended 25 petition, briefing on Respondent’s answer, Dkt. No. 12, is STAYED. 26 2. Respondent shall file with the Court and serve on Petitioner, within twenty- 1 || amended petition. Dkt. No. 15. Petitioner’s reply to Respondent’s opposition shall be 2 || filed within fourteen (14) days of receipt of any opposition. 3 In the alternative, Respondent may file a statement of non-opposition to 4 || Petitioner’s proposed amended petition in the same time provided. In such a case, 5 || Respondent should concurrently file a motion to withdraw its first answer, Dkt. No. 12, 6 || and request an extension of time to file an answer to the amended petition. 7 3. The Clerk shall strike the “Amended Complaint” from this action. Dkt. No. g 13. 9 IT IS SO ORDERED. 10 || Dated: __ September 23,2021 __ tose Loy hcereed BETH LABSON FREEMAN United States District Judge 12

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Oo Z 18 19 20 21 22 23 24 25 Order Directing Respondent to File Opp.; Striking Am. Compl. PRO-SE\BLF\HC.20\02708Ellawendy_am-pet.brief 26 27