JOAQUIN V.E. MANIBUSAN, JR., Magistrate Judge
On April 27, 2004, Plaintiff Jae June Pak filed a civil rights complaint pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff's complaint appears to allege constitutional violations which challenge the validity of his conviction and sentence. However, "a federal prisoner who contends that his conviction is invalid because it was obtained in violation of his constitutional rights must exhaust his habeas corpus remedies before he may prosecute an action for damages to redress the alleged violation of his civil rights." Marchetti v. Bitterolf, 968 F.2d 963, 966 (9th Cir. 1992). Since Plaintiff has not pursued habeas corpus relief, this civil rights action must be halted. Accordingly, Plaintiff's civil rights action is ORDERED STAYED pending exhaustion of Plaintiff's habeas corpus remedies.
Plaintiff indicated on his complaint that the civil rights action is brought pursuant to both § 1983 and Bivens. However, the complaint form clearly instructed Plaintiff to choose either § 1983 or Bivens, and not both.
The Court also notes that Plaintiff has an appeal of his conviction pending with the Ninth Circuit Court of Appeals, which Plaintiff commenced on August 29, 2003. United States v. Pak, C.A. No. 03-10452 (9th Cir. May 27, 2004). Since a district court should not entertain a habeas corpus petition while there is an appeal pending in the appellate court, United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997), Plaintiff must wait until after his appeal is decided before he may seek habeas corpus relief.
On this date, Appellant Jae June Pak's reply brief was filed in the Ninth Circuit. The Court is not aware of any new developments in the appeal.
SO ORDERED.