Petersen v. Sims ( 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. 1:20-cv-00884-DAD-EPG 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND STAYING 14 ANTHONY SIMS, JR., ACTION 15 Defendant. (Doc. No. 10) 16 17 18 Plaintiff Kyle Petersen is a state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 20 (1971). The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 21 636(b)(1)(B) and Local Rule 302. 22 On September 2, 2020, the assigned magistrate judge issued findings and 23 recommendations, recommending that the case be stayed pending completion of plaintiff’s appeal 24 to the Ninth Circuit “concerning the search of his cellular phone.” (Doc No. 10 at 7.) The 25 findings and recommendations were served on plaintiff and contained notice that objections 26 thereto were to be filed within twenty-one (21) days after service. (Id.) Plaintiff sought and 27 received a sixty (60) day extension to file objections. (Doc. Nos. 11, 12.) Plaintiff filed timely 28 objections to the findings and recommendations on October 19, 2020. (Doc. No. 14.) 1 The court finds plaintiff’s objections unpersuasive. Plaintiff argues that his claim in this 2 action, “that the defendant conducted an illegal search of Plaintiff’s two cell phones in 2019 by 3 reanal[y]zing previously captured forensic images,” is not at issue in his appeal before the Ninth 4 Circuit. (Doc. No. 14 at 1.) Plaintiff’s complaint asserted claims concerning the search of his 5 cellular phones in the investigation of the criminal case brought against him, United States v. 6 Petersen, 1:17-cr-00255-NONE-SKO (E.D. Cal.). (Doc. No. 1.) Plaintiff filed an appeal 7 contesting, in part, the district court’s denial of his motion to suppress evidence obtained from the 8 search of his cellular phones in that underlying criminal case. Brief of Defendant-Appellant at 9 24, 33, United States v. Petersen, No. 19-10246 (9th Cir. Jan. 31, 2020). In his appellate brief, 10 plaintiff argues that his motion to suppress evidence should have been granted in part because 11 forensic images from his cell phones were obtained pursuant to a search warrant issued in 12 violation of his Fourth Amendment rights. (Id. at 42.) The court concludes that the issue decided 13 by the Ninth Circuit—whether the forensic images from plaintiff’s cell phones were obtained in 14 violation of the Fourth Amendment and should be suppressed in the criminal case—is clearly 15 relevant to resolution of this civil action. 16 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a 17 de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s 18 objections, the court finds the findings and recommendations to be supported by the record and 19 proper analysis. 20 Accordingly, 21 1. The findings and recommendations issued on September 2, 2020 (Doc. No. 10) are 22 adopted in full; 23 2. This action is stayed pending resolution of plaintiff’s pending appeal from the 24 judgment of conviction in his criminal case; 25 ///// 26 ///// 27 ///// 28 ///// 1 3. Within thirty (30) days of plaintiff receiving an opinion from the Ninth Circuit 2 concerning his appeal, plaintiff shall file such opinion together with a statement 3 regarding whether he wishes to proceed with this civil action; and 4 4. This case is referred back to the assigned magistrate judge for further proceedings 5 when appropriate. 6 | IT IS SO ORDERED. a 7 Li. wh F Dated: _ November 20, 2020 See 1" S98 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28