Petersen v. Buyard ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KYLE PETERSEN, No. 1:19-cv-00235-DAD-EPG (PC) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 14 MEKISHA ROBERSON-BUYARD, (Doc. No. 23) 15 Defendant. 16 17 Plaintiff Kyle Petersen is a federal prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On December 17, 2019, the court adopted in full the October 4, 2019 findings and 21 recommendations issued by the assigned magistrate judge. (Doc. Nos. 16, 21.) In the order 22 adopting the findings and recommendations, the court dismissed plaintiff’s action for failure to 23 state a claim. (Doc. No. 21.) The court also denied plaintiff’s motions for leave to amend 24 because he failed to demonstrate that an amended complaint could remedy the deficiencies 25 identified by the court. (Doc. No. 21; see also Doc. Nos. 17, 19, 20.) 26 On June 17, 2020, plaintiff moved for reconsideration under Federal Rule of Civil 27 Procedure 60(b). (Doc. No. 23.) Rule 60(b) governs the reconsideration of final orders of the 28 district court and permits a district court to relieve a party from a final order or judgment for the 1 following reasons: 2 (1) mistake, inadvertence, surprise, or excusable neglect; 3 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial 4 under Rule 59(b); 5 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 6 (4) the judgment is void; 7 (5) the judgment has been satisfied, released, or discharged; it is 8 based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 9 (6) any other reason that justifies relief. 10 11 Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, 12 typically “not more than one year after the judgment or order or the date of the proceeding.” Id. 13 Such a motion should not be granted “absent highly unusual circumstances, unless the district 14 court is presented with newly discovered evidence, committed clear error, or if there is an 15 intervening change in the controlling law,” and it “may not be used to raise arguments or present 16 evidence for the first time when they could reasonably have been raised earlier in the litigation.” 17 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) 18 (internal quotation marks and citations omitted); see also Kona Enters., Inc. v. Estate of Bishop, 19 229 F. 3d 877, 890 (9th Cir. 2000) (noting that reconsideration should be granted “sparingly in 20 the interests of finality and conservation of judicial resources”). Further, Local Rule 230(j) 21 requires, in relevant part, that a movant show “what new or different facts or circumstances are 22 claimed to exist which did not exist or were not shown upon such prior motion”, “what other 23 grounds exist for the motion,” and “why the facts or circumstances were not shown at the time of 24 the prior motion.” 25 In his motion for reconsideration, plaintiff states that he never received the magistrate 26 judge’s findings and recommendations or the undersigned’s order adopting those findings and 27 recommendations and claims that, if he had, he would have requested an extension of time to file 28 objections. (Doc. No. 23 at 1–2.) Plaintiff argues that those objections would have contested the 1 applicability of the Heck bar to this action and challenged the caselaw upholding warrantless 2 searches of a parolee’s cellphone. (Id. at 3.) See, e.g., United States v. Johnson, 875 F.3d 1265 3 (9th Cir. 2017). 4 The court is unpersuaded by these arguments. First, plaintiff appears to argue that, even if 5 this action were to succeed, the finding that he had violated the terms and conditions of his parole 6 would not be invalidated under Heck because the finding that he had violated parole could still 7 stand on the basis of a related but unspecified warrant from 2019. (Doc. No. 23 at 3.) However, 8 the absence of any detail provided by plaintiff as to how this unspecified warrant would allow his 9 parole violation to stand even if he were to prevail in this civil action provides the court with no 10 basis to grant reconsideration on this point. 11 Second, even if the court agreed that Johnson was decided after plaintiff had committed 12 some of the parole violations that serve as the basis for his current incarceration,1 the law has long 13 been clear that parolees have significantly diminished privacy interests compared to the average 14 citizen. See Samson v. California, 547 U.S. 843, 850 (2006). In addition, state law expressly 15 provides that all parolees shall be “subject to search or seizure by a probation or parole officer or 16 other peace officer at any time of the day or night, with or without a search warrant or with or 17 without cause.” Cal. Penal Code § 3067(b)(3). Plaintiff also explicitly consented to the 18 “announced or unannounced search and/or examination of any electronic devices to which you 19 have access for the limited purpose of detecting content prohibited by your conditions of parole or 20 the law.” (Doc. No. 16 at 4.) Cf. United States v. Lara, 815 F.3d 605, 612 (9th Cir. 2016) (noting 21 that the defendant had not accepted “as a condition of his probation a clear and unequivocal 22 search provision authorizing cell phone searches”). Thus, plaintiff fails to state a cognizable 23 constitutional claim. Reconsideration is therefore not warranted. 24 ///// 25 ///// 26 ///// 27 1 Plaintiff nonetheless concedes that at least one of those parole violations happened after 28 £:£0 UV VV EOI MAR SOMO POI Te OY Tt 1 Accordingly, plaintiff's motion for reconsideration (Doc. No. 23) is denied, and the court 2 | will entertain no further filings in this closed action. 3 | IT IS SO ORDERED. a " 4 ji je Ff; Dated: _ July 13, 2020 See □□ oF 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28