ORDER OF DISMISSAL

CHARLES R. BREYER, United States District Judge

Plaintiff, a pretrial detainee at the Contra Costa County Jail, has filed a pro se civil rights complaint for damages under 42 U.S.C. § 1983. Plaintiff alleges that after Pittsburgh Police Officer D. Pearman arrested him on an outstanding warrant and suspicion of selling drugs, Pearman used "unreasonable force to obtain evidence to build a case" against plaintiff. Plaintiff specifically alleges that Pearman and two other officers held him down and forcefully searched his rectum until they "pulled out a 0.39 weight of crack cocaine base." Plaintiff consequently was charged with possession for sale and other related crimes.

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dept. 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under 42 U.S.C. § 1983. a plaintiff must allege two elements: (1) that a right secured t)y the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

B. Legal Claims

A cavity search supported by probable cause and exigent circumstances is still unreasonable under the Fourth Amendment if the degree of force employed to carry it out was excessive. See Ellis v. City of San Diego, 176 F.3d 1183, 1191-92 (9th Cir. 1999). The panel in Ellis declined to consider the effect of Heck v. Humphrey. 512 U.S. 477 (1944), on such a claim brought under § 1983, however. See id. at 1186. Unfortunately for plaintiff, a subsequent panel has made clear that his § 1983 claim for damages is barred under Heck until he prevails in the criminal realm. See Harvey v. Waldron, 210 F.3d 1008, 1015-16 (9th Cir. 2000).

Under Heck, a § 1983 claim that would call into question the lawfulness of a plaintiffs conviction or confinement is not cognizable, and therefore does not accrue, until and unless the plaintiff can prove that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. Heck, 512 U.S. at 486-87. Accordingly, when a plaintiff files a § 1983 action, the court must consider whether "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence already been invalidated." Id. at 487.

In Harvey, our court of appeals held that the rationale of Heck applies to pending criminal charges and Fourth Amendment unreasonable search and seizure claims. Harvey, 210 F.3d at 1014, 1015. A § 1983 action for unreasonable search and seizure of evidence upon which criminal charges are based is barred by Heck until criminal charges have been dismissed or the conviction has been overturned. See id. at 1015-16 (claim that gaming devices had been unlawfully searched for and seized under the 4th Amendment barred by Heck until charges for illegal possession of gaming devices were dismissed). This "avoid[s] the potential for inconsistent determinations on the legality of search and seizure in the civil and criminal cases." Id. at 1015.

In the present case, as in Harvey. the evidence seized in the allegedly unreasonable search — crack cocaine base — is an essential element of the principal crime of which plaintiff is being charged — possession for sale. See id. at 1015 If plaintiff is tried and convicted of this crime, a § 1983 action challengi the force used to carry out the search and obtain the seized evidence, if successful, would implicate the validity of the conviction. See Ellis, 176 F.3d a 1190-91 (even if invasive search is supported by probable cause and exigent circumstances, it is invalid if degree of force employed to carry it out is excessive); Franklin v. Foxworth, 31 F.3d 873, 875 (9th Cir. 1994) (even when supported by probable cause, a search may be invalid if carried out in an unreasonable fashion); see also United States v. Cameron, 538 F.2d 254, 257 (9th Cir. 1976) (compelled enemas violate 4th Amendment because "a clear indication that the suspect is concealing contraband does not authorize government official to go to any and all means at their disposal to retrieve it"). Plaintiffs claim is barred by Heck and thus not yet cognizable under § 1983. See Harvey, 210 F.3d at 1015-16. It must be DISMISSED without prejudice. See Edwards v. Balisok, 520 U.S. 641, 649 (1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995).

CONCLUSION

For the foregoing reasons, plaintiffs § 1983 claim/action is DISMISSED without prejudice to refiling if and when a cause of action accrues.

The Clerk shall close the file.

SO ORDERED.