Petersen v. Buyard ( 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. 1:20-cv-00954-DAD-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING STAYING THIS 13 v. ACTION PENDING COMPLETION OF PLAINTIFF’S APPEAL TO THE NINTH 14 MEKISHA BUYARD, CIRCUIT 15 Defendant. TWENTY-ONE-DAY DEADLINE 16 17 Plaintiff Kyle Petersen (“Plaintiff”), a federal prisoner proceeding pro se and in forma 18 pauperis, commenced this action by filing a civil-rights complaint pursuant to 42 U.S.C. § 1983 19 on July 9, 2020. (ECF No. 1). Plaintiff’s complaint alleges that Defendant Mekisha Buyard 20 (“Defendant”), his former parole agent, violated his Fourth Amendment rights by sending his 21 cellular phones to federal agents in a manner not permitted by his parole conditions. 22 Plaintiff pleaded guilty to federal offenses in a case in this district. Plaintiff’s appeal, 23 which is currently pending before the Ninth Circuit, deals with issues that are intertwined with 24 issues in this case. Resolving the issues before the Ninth Circuit may be necessary to determine 25 the issues herein. In addition, the Court has stayed Plaintiffs’ three other cases stemming from 26 related searches—including one against Defendant Buyard. Therefore, the Court recommends 27 staying this action pending the resolution of Plaintiff’s appeal in his criminal case. 28 /// 1 I. BACKGROUND 2 A. Criminal Case 3 This case relates to Plaintiff’s criminal conviction for child-pornography offenses in 4 United States v. Peterson, 1:17-cr-00255-NONE-SKO (E.D. Cal.) (“District Court Criminal 5 Case”).1 The District Court Criminal Case came about after Defendant searched Plaintiff’s 6 cellular phones during several parole searches. Relevant here, Defendant searched Plaintiff’s 7 Unimax and LG cell phones in 2017 (“Relevant Phones”). Defendant sent the Relevant Phones to 8 Homeland Security Investigation agents Anthony Sims, Jr., and Nicholas Torres for forensic 9 searches. Some of the forensic searches were suppressed pursuant to a stipulation between 10 Plaintiff and the United States. 11 Later, the United States searched the Relevant Phones again, but this time with a warrant 12 (“Subsequent Searches”). Plaintiff moved to suppress the Subsequent Searches. His motion was 13 denied. 14 Plaintiff pleaded guilty but maintained his right to appeal. In his appeal pending before the 15 Ninth Circuit, Plaintiff contends that Defendant’s parole searches were unconstitutional. United 16 States v. Petersen, No. 19-10246, Dkt. 9 at 37 (9th Cir.) (“Criminal Appeal”) (“It follows, 17 therefore, that the parole searches were unlawful and that the exclusionary rule bars the admission 18 of the evidence that was the fruit of those unlawful searches.”).2 19 B. Civil Cases 20 This case is one of four related cases in this district, three of which have already been 21 stayed. See Petersen v. Sims, Jr., 1:20-cv-00884-DAD-EPG (stayed); Petersen v. Sims, 1:20-cv- 22 00884-DAD-EPG (stayed); Petersen v. Buyard, 1:20-cv-00999-DAD-EPG (stayed).3 In this 23 action, Plaintiff contends that Defendant violated his Fourth Amendment rights by sending the 24 Relevant Phones to Sims and Torres for forensic searches because, as federal agents, any searches 25 they conducted were unauthorized by his parole conditions. (See ECF No. 1 at 4-5, 7-8). 26 1 The Court takes judicial notice of this case. See Fed. R. Evid. 201(b); United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980) (recognizing that under Federal Rule of Evidence 201, “a court may take judicial notice of its own 27 records in other cases”). 2 The Court takes judicial notice of this case. See Wilson, 631 F.2d at 119. 28 3 The Court takes judicial notice of theses cases. See Wilson, 631 F.2d at 119. 1 Defendant filed a motion to dismiss on April 12, 2021 arguing, in part, that her searches were 2 constitutional and that she was entitled to send the phones to parole agents under California law. 3 (ECF No. 23). 4 C. Briefing for Stay 5 On February 23, 2021, the Court ordered that the parties provide briefing concerning 6 whether this action should be stayed pending the resolution of the Criminal Appeal. (ECF No. 7 15). Defendant filed such briefing on March 9, 2021. (ECF No. 18). Defendant argued that this 8 action should be stayed because the searches at issue here relate to the issues in the Criminal 9 Appeal. Plaintiff filed his briefing on April 12, 2021. (ECF No. 24). Plaintiff argues that the Court 10 implied that it was considering staying this action under the doctrine of collateral estoppel, which 11 does not apply here. 12 II. LEGAL STANDARDS FOR A STAY 13 “[A] district court may stay a case ‘pending before it by virtue of its inherent power to 14 control the progress of the cause so as to maintain the orderly processes of justice[.]’” Ryan v. 15 Gonzales, 568 U.S. 57, 74 (2013) (quoting Enelow v. New York Life Ins. Co., 293 U.S. 379, 382 16 (1935)). 17 When a plaintiff’s civil-rights lawsuit relates to a pending or potential criminal case, 18 district courts often stay the civil rights action until the criminal case is complete. See Wallace v. 19 Kato, 549 U.S. 384, 393–94 (2007) (“If a plaintiff files a false-arrest claim before he has been 20 convicted (or files any other claim related to rulings that will likely be made in a pending or 21 anticipated criminal trial), it is within the power of the district court, and in accord with common 22 practice, to stay the civil action until the criminal case or the likelihood of a criminal case is 23 ended.”); Bagley v. CMC Real Estate Corp., 923 F.2d 758, 762 (9th Cir. 1991) (where plaintiff 24 argued statute of limitations did not bar his action because he would have been collaterally 25 estopped from bringing a civil rights action, noting plaintiff “could have filed his civil rights 26 action within the limitations period and then asked the district court to stay that action pending 27 the outcome of his habeas petition. Once his conviction was reversed, there could have been no 28 collateral estoppel effect of any kind on his civil rights claims”); Rhoden v. Mayberg, 361 F. 1 App’x 895, 896 (9th Cir. 2010) (unpublished) (vacating dismissal and remanding for entry of stay 2 for civil detainee’s civil-rights lawsuit that related to ongoing civil-commitment proceedings). 3 III. ANALYSIS 4 The Court recommends staying this action until the Ninth Circuit resolves the Criminal 5 Appeal. 6 Plaintiff argues at the Ninth Circuit that Defendant’s searches of his phones were 7 unconstitutional. Criminal Appeal, Dkt. No. 9 at 37. In her pending motion to dismiss, Defendant 8 argues that her searches were constitutional and, therefore, so was her decision to provide the cell 9 phones to Sims and Torres. (ECF No. 23 at 15-20). Thus, the issues in this case are related to the 10 Criminal Appeal. It is possible that a holding by the Ninth Circuit could resolve, or assist the 11 resolution of, Defendants’ motion to dismiss. Moreover, entering a stay will ensure this case’s 12 conclusion about the searches on the Relevant Phones is consistent with the Ninth Circuit’s, 13 should the Ninth Circuit address that issue. Accordingly, the Court recommends entering a stay. 14 See Wallace, 549 U.S. at 393-94; Rhoden, 361 F. App’x at 896. 15 IV. CONCLUSION AND RECOMMENDATIONS 16 For the foregoing reasons, it is HEREBY RECOMMENDED that: 17 1. This action be stayed, pending completion of Plaintiff’s appeal concerning the 18 searches of his cellular phones; and 19 2. Within 30 days of Plaintiff receiving an opinion from the Ninth Circuit concerning his 20 appeal, Plaintiff be ordered to file such opinion together with a statement regarding 21 whether he still wishes to proceed in this action. 22 These findings and recommendations will be submitted to the United States district judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one 24 (21) days after being served with these findings and recommendations, the parties may file 25 written objections with the Court. The document should be captioned “Objections to Magistrate 26 Judge’s Findings and Recommendations.” 27 \\\ 28 \\\ ] The parties are advised that failure to file objections within the specified time may result 2 | in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 3 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. 6| Dated: _ April 15, 2021 [se ey 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 «