(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 DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 14 ANTHONY SIMS, JR. and NICHOLAS TORRES, (Doc. No. 84) 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 brought pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 20 388 (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 Before the court is plaintiff’s motion for reconsideration of the undersigned’s January 5, 23 2021 order (Doc. No. 81) adopting the assigned magistrate judge’s November 24, 2020 findings 24 and recommendations (Doc. No. 79). (Doc. No. 84.) In that order, the court stayed this action 25 pending resolution of plaintiff’s appeal to the Ninth Circuit from the judgment of conviction 26 entered in his criminal case. (Doc. No. 81.) In particular, the court found the issues presented to 27 the Ninth Circuit in that appeal were relevant to the claims plaintiff brings in this civil action 28 ///// 1 | concerning the search of his cellular phones as part of the investigation of his criminal case. (Ud. 2 | 3 In his motion for reconsideration, plaintiff contends that the court should reconsider its 4 | order staying the action, asserting that the court misunderstood his objections to the reasoning in 5 | the findings and recommendations. (Doc. No. 84 at 3.) Defendants filed an opposition to the 6 | motion for reconsideration on April 16, 2021, arguing that plaintiff has merely reiterated his 7 | previous arguments and does not address the applicable legal standards governing motions for 8 || reconsideration. (Doc. No. 85 at 1—2.) 9 On May 3, 2021, the Ninth Circuit issued an opinion in plaintiff's appeal from the 10 || judgment of conviction in his criminal case. United States v. Peterson, No. 19-10246,__—sF.3d 11 —__, 2021 WL 1727623 (9th Cir. May 3, 2021). As relevant to the instant action, the Ninth 12 | Circuit affirmed the district court’s rulings denying plaintiff's motions to suppress evidence 13 | obtained from the seizures and searches of his cellular phones. (d. at *6.) 14 As result of the Ninth Circuit’s opinion issued on May 3, 2021, plaintiff's motion for 15 | reconsideration of this court’s order staying the instant action is rendered moot. 16 Accordingly, 17 1. Plaintiffs motion for reconsideration (Doc. No. 84) is denied as moot; 18 2. Plaintiff shall file a copy of the Ninth Circuit’s opinion concerning his appeal 19 together with a statement regarding whether he wishes to proceed with this civil 20 action no later than June 3, 2021; and 21 3. This case is referred back to the assigned magistrate judge for further proceedings. 22 | IT IS SO ORDERED. me □ | Dated: _May 19, 2021 Yole A Lara 24 UNITED STATES DISTRICT JUDGE 25 26 27 28