                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                             FOR THE NINTH CIRCUIT                          DEC 16 2009

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

 AURELIUS AUGUSTINUS KENNETH                     No. 08-16241
 PEYTON, AKA Aurelius Augustinus
 Kenn Peyton, AKA Ellis,                         D.C. No. 1:07-cv-00453-LJO-
                                                 TAG
               Plaintiff - Appellant,

   v.                                            MEMORANDUM *

 JEFFREY BURDICK, Detective; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                           Submitted November 17, 2009 **


Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Aurelius Augustinus Kenneth Peyton, a pre-trial detainee, appeals pro se



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

NW /Research
from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging

manipulation of evidence, perjury, and false arrest. We have jurisdiction under 28

U.S.C. § 1291, and we vacate and remand.

       Because Peyton’s claims implicate rulings that are likely to be made in the

pending state court criminal proceeding, see Heck v. Humphrey, 512 U.S. 477,

486-90 (1994), the district court should have stayed the section 1983 action “until

the criminal case . . . is ended,” Wallace v. Kato, 549 U.S. 384, 393-94 (2007).

Therefore we vacate the judgment and remand for the district court to stay the

action until the criminal proceedings are concluded.

       Appellees’ motion to strike the reply brief in its entirety is granted and their

motion to strike portions of the reply brief is denied as moot.

       Appellees’ shall bear appellant’s costs on appeal.

       VACATED and REMANDED.




NW /Research                                2                                    08-16241
