(PS) Petersen v. Sims ( 2021 )

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-00138-DAD-EPG 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 ANTHONY SIMS, JR. and NICHOLAS TORRES, (Doc. No. 79) 15 Defendants. 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 November 24, 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 searches of his cellular phones.” (Doc No. 79 at 5.) 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 filed timely 27 objections to the findings and recommendations on December 14, 2020. (Doc. No. 80.) The time 28 to file objections has passed, and defendants have not filed any objections. 1 In his objections to the pending findings and recommendations, plaintiff does not directly 2 | address the magistrate judge’s reasoning. Plaintiff's objections reiterate his earlier arguments that 3 | defendants’ qualified immunity argument to his Fourth Amendment violation claim is inapposite 4 | to the case upon which defendants rely, United States v. Burnette, 698 F.2d 1038 (9th Cir. 1983). 5 | Ud. at 2—5.) Plaintiff also contends that defendants are collaterally estopped from denying the 6 | validity of the cell phone searches because the evidence obtained as a result of those searches was 7 | suppressed (in light of the government’s non-opposition to his motion to suppress that evidence) 8 | in his criminal case. (/d. at 6.) The assigned magistrate judge considered these arguments in the 9 | pending findings and recommendations. (Doc. No. 79 at 3-4.) In short, plaintiff's arguments 10 | advanced in his objections to the pending findings and recommendations are unpersuasive. 11 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C©), this court has conducted a 12 | de novo review of the case. Having carefully reviewed the entire file, including plaintiff's 13 | objections, the court finds the findings and recommendations to be supported by the record and 14 | proper analysis. 15 Accordingly, 16 1. The findings and recommendations issued on November 14, 2020 (Doc. No. 79) 17 are adopted in full; 18 2. This action is stayed pending resolution of plaintiff's pending appeal from the 19 judgment of conviction in his criminal case; 20 3. Within thirty (30) days of plaintiff receiving an opinion from the Ninth Circuit 21 concerning his appeal, plaintiff shall file such opinion together with a statement 22 regarding whether he wishes to proceed with this civil action; and 23 4. This case is referred back to the assigned magistrate judge for further proceedings 24 when appropriate. 25 | IT IS SO ORDERED. me □ *° Dated: _ January 5, 2021 Yh AL ae 27 UNITED STATES DISTRICT JUDGE 28