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 THAT DEFENDANT’S 13 v. MOTION TO DISMISS BE GRANTED AND THAT THIS ACTION BE DISMISSED, WITH 14 MEKISHA BUYARD, PREJUDICE, FOR FAILURE TO STATE A CLAIM, PROSECUTE THIS CASE, AND 15 Defendant. COMPLY WITH COURT ORDERS 16 (ECF Nos. 23, 31, 33) 17 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 18 19 Plaintiff Kyle Petersen, a federal inmate proceeding pro se and in forma pauperis, filed 20 this civil rights action on July 9, 2020, pursuant to 42 U.S.C. § 1983. (ECF No. 1). The complaint 21 brings a single cause of action under the Fourth Amendment against Defendant Mekisha Buyard 22 concerning the searches of Plaintiff’s cell phones. 23 On April 12, 2021, Defendant moved to dismiss this case, arguing that Plaintiff fails to 24 state a Fourth Amendment claim. (ECF No. 23). Despite extending the deadline four times for 25 Plaintiff to file a response, Plaintiff has failed to do so. (ECF Nos. 28, 30, 31, 33). On January 14, 26 2022, Defendant supplemented her motion, noting Plaintiff’s failure to respond and “request[ing] 27 that this Court dismiss this action due to Plaintiff’s lack of opposition and failure to comply with . 28 . . this Court’s orders.” (ECF No. 34, p. 2). 1 For the following reasons, the Court recommends that Defendant’s motion to dismiss be 2 granted and this action be dismissed, with prejudice, for failure to state a claim, prosecute this 3 case, and comply with court orders. 4 I. BACKGROUND 5 A. Plaintiff’s Complaint 6 Defendant Buyard was formerly Plaintiff’s parole officer. (ECF No. 1, p. 1). Plaintiff’s 7 parole conditions included a “search clause” that subjected his person, his residence, and his 8 property to searches “by a probation officer, an agent or officer of the California Department of 9 Corrections and Rehabilitation, or any other peace officer at any time of the day or night, with or 10 without a warrant, with or without cause.” (Id. at 5). 11 Defendant seized Plaintiff’s cell phone, a Unimax model, and sent it to Homeland 12 Security Investigations (HSI), between May 23 and 26, 2017 to be searched. (Id. at 2). Between 13 July 6 and September 23, 2017, Defendant sent four more of Plaintiff’s cell phones to HSI to be 14 searched. (Id. at 3). These cell phones were a Unnecto model, a ZTE model, a LG model, and a 15 Coolpad model. (Id.). 16 HSI agents are federal agents and are not probation officers, agents or officers of the 17 California Department of Corrections and Rehabilitation (CDCR), or peace officers under 18 California law. (Id. at 5). Accordingly, Plaintiff claims that HSI was not authorized by his parole 19 conditions to search his cell phones and thus the searches violated the Fourth Amendment. (Id.). 20 Plaintiff alleges that Defendant facilitated this alleged violation of his Fourth Amendment rights 21 by providing his cell phones to HSI agents and asking that they be searched. (Id. at 6). 22 Plaintiff refers to and requests the Court to take judicial notice of his criminal case in this 23 district, United States v. Petersen, 1:17-cr-00255-NONE-SKO (Criminal Case).1 (Id.). 24 B. Criminal Case 25 On November 2, 2017, Plaintiff was indicted on federal child pornography charges in 26 1 The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Wilson, 631 27 F.2d 118, 119 (9th Cir.1980) (recognizing that under Federal Rule of Evidence 201, “a court may take judicial notice of its own records in other cases”). The Court will take judicial notice of its own records in 28 other cases. 1 connection with the Unimax and LG cell phones. (Criminal Case, ECF No. 1). On October 8, 2 2018, Plaintiff, represented by counsel, filed a motion to suppress the Unimax and LG cell phones 3 and the evidence found on them, claiming that HSI violated Plaintiff’s Fourth Amendment rights 4 by searching the cell phones after Plaintiff’s parole had been formally revoked. (Criminal Case, 5 ECF No. 24). Although the government initially opposed the motion, after further investigation, 6 the government filed a non-opposition to the motion to suppress. (Criminal Case, ECF Nos. 25, 7 33). Based on the non-opposition and without additional analysis, the District Judge granted the 8 motion to suppress and suppressed the evidence obtained by HSI from the Unimax and LG cell 9 phones. (Criminal Case, ECF No. 35). Importantly, the District Judge observed that Defendant 10 had preliminarily reviewed the cell phones’ content before sending them to HSI and noted that 11 Defendant’s “on-site previews of the phones’ contents [were] not suppressed.” (Id.). 12 Thereafter, the government obtained a warrant for HSI to search both phones. (Criminal 13 Case, ECF No. 38, Exhibits C &D). On March 4, 2019, Plaintiff moved to suppress the evidence 14 gathered from Defendant’s seizure and preliminary searches of his Unimax and LG cell phones 15 during the parole searches and also the evidence seized from HSI’s later search of the cell phones 16 pursuant to the warrant that was issued. (Id. at 1-2). The government opposed the motion. 17 (Criminal Case, ECF No. 41). On March 18, 2019, the District Judge denied the motion to 18 suppress. (Criminal Case, ECF Nos. 46; 49, p. 19). 19 Thereafter, Plaintiff pled guilty to count one of the indictment, which charged him with 20 receipt of material involving the sexual exploitation of matters concerning images found on his 21 Unimax cell phone. (Criminal Case, ECF Nos. 1, 50, 67). The District Judge sentenced Plaintiff 22 to a total term of 162 months in prison. (Criminal Case, ECF No. 67). 23 Plaintiff appealed, arguing, in relevant part, that the District Judge erred in denying his 24 motion to suppress the evidence seized from his Unimax and LG cell phones from Defendant’s 25 parole searches and from HSI’s searches pursuant to the warrant. United States v. Peterson, 995 26 F.3d 1061, 1063-64 (9th Cir.), cert. denied, 142 S. Ct. 472 (2021). The Ninth Circuit affirmed, 27 concluding that, because Plaintiff had a “diminished privacy interest” as a parolee and had agreed 28 that “his property could be searched at any time with or without a warrant,” the District Judge had 1 “appropriately denied [his] motion to suppress with respect to the parole searches.” Id. at 1068. 2 The Ninth Circuit also rejected Plaintiff’s attack on the legality of the HSI searches pursuant to 3 the warrant.2 Id. 4 II. MOTION TO DISMISS 5 Defendant moves to dismiss this case, arguing that the cell phones were legally searched.3 6 (ECF No. 16). Specifically, Defendant argues that California law authorized HSI officers to assist 7 Defendant in searching the cell phones and thus the searches were authorized under the 8 conditions imposed by Plaintiff’s parole. 9 Despite extending the deadline four times for Plaintiff to file a response to the motion to 10 dismiss, Plaintiff has failed to timely do so. (ECF Nos. 28, 30, 31, 33). First, on May 3, 2021, 11 Plaintiff filed a motion for an extension of time, requesting a sixty-day extension of the time to 12 file an opposition to Defendant’s motion to dismiss. (ECF No. 27). Plaintiff stated that, because 13 the motion to dismiss relies on California law, he needed additional time to obtain California 14 legal research materials from his institution of confinement. On May 4, 2021, the Court granted 15 Plaintiff a sixty-day extension of time to file his opposition to Defendant’s motion to dismiss. 16 (ECF No. 28).
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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 THAT DEFENDANT’S 13 v. MOTION TO DISMISS BE GRANTED AND THAT THIS ACTION BE DISMISSED, WITH 14 MEKISHA BUYARD, PREJUDICE, FOR FAILURE TO STATE A CLAIM, PROSECUTE THIS CASE, AND 15 Defendant. COMPLY WITH COURT ORDERS 16 (ECF Nos. 23, 31, 33) 17 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 18 19 Plaintiff Kyle Petersen, a federal inmate proceeding pro se and in forma pauperis, filed 20 this civil rights action on July 9, 2020, pursuant to 42 U.S.C. § 1983. (ECF No. 1). The complaint 21 brings a single cause of action under the Fourth Amendment against Defendant Mekisha Buyard 22 concerning the searches of Plaintiff’s cell phones. 23 On April 12, 2021, Defendant moved to dismiss this case, arguing that Plaintiff fails to 24 state a Fourth Amendment claim. (ECF No. 23). Despite extending the deadline four times for 25 Plaintiff to file a response, Plaintiff has failed to do so. (ECF Nos. 28, 30, 31, 33). On January 14, 26 2022, Defendant supplemented her motion, noting Plaintiff’s failure to respond and “request[ing] 27 that this Court dismiss this action due to Plaintiff’s lack of opposition and failure to comply with . 28 . . this Court’s orders.” (ECF No. 34, p. 2). 1 For the following reasons, the Court recommends that Defendant’s motion to dismiss be 2 granted and this action be dismissed, with prejudice, for failure to state a claim, prosecute this 3 case, and comply with court orders. 4 I. BACKGROUND 5 A. Plaintiff’s Complaint 6 Defendant Buyard was formerly Plaintiff’s parole officer. (ECF No. 1, p. 1). Plaintiff’s 7 parole conditions included a “search clause” that subjected his person, his residence, and his 8 property to searches “by a probation officer, an agent or officer of the California Department of 9 Corrections and Rehabilitation, or any other peace officer at any time of the day or night, with or 10 without a warrant, with or without cause.” (Id. at 5). 11 Defendant seized Plaintiff’s cell phone, a Unimax model, and sent it to Homeland 12 Security Investigations (HSI), between May 23 and 26, 2017 to be searched. (Id. at 2). Between 13 July 6 and September 23, 2017, Defendant sent four more of Plaintiff’s cell phones to HSI to be 14 searched. (Id. at 3). These cell phones were a Unnecto model, a ZTE model, a LG model, and a 15 Coolpad model. (Id.). 16 HSI agents are federal agents and are not probation officers, agents or officers of the 17 California Department of Corrections and Rehabilitation (CDCR), or peace officers under 18 California law. (Id. at 5). Accordingly, Plaintiff claims that HSI was not authorized by his parole 19 conditions to search his cell phones and thus the searches violated the Fourth Amendment. (Id.). 20 Plaintiff alleges that Defendant facilitated this alleged violation of his Fourth Amendment rights 21 by providing his cell phones to HSI agents and asking that they be searched. (Id. at 6). 22 Plaintiff refers to and requests the Court to take judicial notice of his criminal case in this 23 district, United States v. Petersen, 1:17-cr-00255-NONE-SKO (Criminal Case).1 (Id.). 24 B. Criminal Case 25 On November 2, 2017, Plaintiff was indicted on federal child pornography charges in 26 1 The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Wilson, 631 27 F.2d 118, 119 (9th Cir.1980) (recognizing that under Federal Rule of Evidence 201, “a court may take judicial notice of its own records in other cases”). The Court will take judicial notice of its own records in 28 other cases. 1 connection with the Unimax and LG cell phones. (Criminal Case, ECF No. 1). On October 8, 2 2018, Plaintiff, represented by counsel, filed a motion to suppress the Unimax and LG cell phones 3 and the evidence found on them, claiming that HSI violated Plaintiff’s Fourth Amendment rights 4 by searching the cell phones after Plaintiff’s parole had been formally revoked. (Criminal Case, 5 ECF No. 24). Although the government initially opposed the motion, after further investigation, 6 the government filed a non-opposition to the motion to suppress. (Criminal Case, ECF Nos. 25, 7 33). Based on the non-opposition and without additional analysis, the District Judge granted the 8 motion to suppress and suppressed the evidence obtained by HSI from the Unimax and LG cell 9 phones. (Criminal Case, ECF No. 35). Importantly, the District Judge observed that Defendant 10 had preliminarily reviewed the cell phones’ content before sending them to HSI and noted that 11 Defendant’s “on-site previews of the phones’ contents [were] not suppressed.” (Id.). 12 Thereafter, the government obtained a warrant for HSI to search both phones. (Criminal 13 Case, ECF No. 38, Exhibits C &D). On March 4, 2019, Plaintiff moved to suppress the evidence 14 gathered from Defendant’s seizure and preliminary searches of his Unimax and LG cell phones 15 during the parole searches and also the evidence seized from HSI’s later search of the cell phones 16 pursuant to the warrant that was issued. (Id. at 1-2). The government opposed the motion. 17 (Criminal Case, ECF No. 41). On March 18, 2019, the District Judge denied the motion to 18 suppress. (Criminal Case, ECF Nos. 46; 49, p. 19). 19 Thereafter, Plaintiff pled guilty to count one of the indictment, which charged him with 20 receipt of material involving the sexual exploitation of matters concerning images found on his 21 Unimax cell phone. (Criminal Case, ECF Nos. 1, 50, 67). The District Judge sentenced Plaintiff 22 to a total term of 162 months in prison. (Criminal Case, ECF No. 67). 23 Plaintiff appealed, arguing, in relevant part, that the District Judge erred in denying his 24 motion to suppress the evidence seized from his Unimax and LG cell phones from Defendant’s 25 parole searches and from HSI’s searches pursuant to the warrant. United States v. Peterson, 995 26 F.3d 1061, 1063-64 (9th Cir.), cert. denied, 142 S. Ct. 472 (2021). The Ninth Circuit affirmed, 27 concluding that, because Plaintiff had a “diminished privacy interest” as a parolee and had agreed 28 that “his property could be searched at any time with or without a warrant,” the District Judge had 1 “appropriately denied [his] motion to suppress with respect to the parole searches.” Id. at 1068. 2 The Ninth Circuit also rejected Plaintiff’s attack on the legality of the HSI searches pursuant to 3 the warrant.2 Id. 4 II. MOTION TO DISMISS 5 Defendant moves to dismiss this case, arguing that the cell phones were legally searched.3 6 (ECF No. 16). Specifically, Defendant argues that California law authorized HSI officers to assist 7 Defendant in searching the cell phones and thus the searches were authorized under the 8 conditions imposed by Plaintiff’s parole. 9 Despite extending the deadline four times for Plaintiff to file a response to the motion to 10 dismiss, Plaintiff has failed to timely do so. (ECF Nos. 28, 30, 31, 33). First, on May 3, 2021, 11 Plaintiff filed a motion for an extension of time, requesting a sixty-day extension of the time to 12 file an opposition to Defendant’s motion to dismiss. (ECF No. 27). Plaintiff stated that, because 13 the motion to dismiss relies on California law, he needed additional time to obtain California 14 legal research materials from his institution of confinement. On May 4, 2021, the Court granted 15 Plaintiff a sixty-day extension of time to file his opposition to Defendant’s motion to dismiss. 16 (ECF No. 28). 17 Second, on July 9, 2021, Plaintiff filed another motion for extension of time, stating that 18 his institution of confinement had denied him the ability to research California state law and that 19 he had sought an informal resolution relating to the denial, asserting that he needed “access to 20 California case law and statutes” to be able “to mount a meaningful opposition.” (ECF No. 29, p. 21 2). On July 13, 2021, the Court granted Plaintiff an additional sixty days to file an opposition to 22 the motion to dismiss or a statement indicating that he no longer wished to proceed in this action. 23 (ECF No. 30). 24
25 2 In rejecting Plaintiff’s attack on the legality of the HSI searches pursuant to the warrant, the Ninth Circuit noted that Plaintiff had waived an argument—that the cell phones “were reanalyzed utilizing previously 26 captured forensic images”—and thus did not address this argument on appeal. Peterson, 995 F.3d at 1068. 3 The Court recognizes that Defendant also argues that she is entitled to qualified immunity and that 27 Plaintiff’s claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994). (ECF No. 23, p. 20-24). However, given the Court’s recommendation to dismiss based on Plaintiff’s failure to state a claim, prosecute this 28 case, and comply with court orders, the Court need not address these other issues. 1 Third, after sixty days passed without Plaintiff filing any response, the Court entered an 2 order on September 24, 2021, sua sponte extending the deadline by another fourteen days for an 3 opposition or a statement of non-opposition to Defendant’s motion to dismiss. (ECF No. 31). The 4 Court warned Plaintiff that failure to file anything may result in the Court granting the motion to 5 dismiss or recommending that this case be dismissed for failure to prosecute and failure to 6 comply with a court order. 7 Fourth, on October 8, 2021, Plaintiff filed a response to this Court’s order, requesting 8 another extension. (ECF No. 32). Plaintiff stated that between July 30, 2021, and August 10, 9 2021, he had submitted another request for a sixty-day extension of time to respond to the motion 10 to dismiss because he had recently been placed in the special housing unit and did not have his 11 property. On October 13, 2021, the Court granted Plaintiff’s motion, giving Plaintiff an additional 12 sixty days to file his opposition or a statement of non-opposition to Defendant’s motion to 13 dismiss. (ECF No. 33). As for Plaintiff’s inability to access California state legal materials, the 14 Court directed Plaintiff to file, within fourteen days, a list identifying the California state legal 15 materials that he required to file his opposition brief and directed Defendant to file, fourteen days 16 thereafter, a response indicating whether she was willing to provide such legal materials to 17 Plaintiff to facilitate resolution of the motion to dismiss. 18 To date, Plaintiff has not filed a list of requested California state legal materials, nor has 19 he filed his opposition or a statement of non-opposition to Defendant’s motion to dismiss, and the 20 time to do so has expired. 21 Given Plaintiff’s lack of opposition, Defendant has supplemented her motion to dismiss, 22 requesting that this case be dismissed for Plaintiff’s lack of opposition and failure to comply with 23 the Court’s orders. (ECF No. 34, p. 2 (citing Fed. R. Civ. P. 41(b)). 24 III. LEGAL STANDARDS 25 In considering a motion to dismiss, the Court must accept all allegations of material fact in 26 the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007); Hosp. Bldg. Co. v. Rex 27 Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the 28 light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on 1 other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813, 2 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff’s 3 favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings “must be 4 held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 5 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally 6 construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)). 7 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 8 complaint. See Iqbal, 556 U.S. at 679. Rule 8(a)(2) requires only “a short and plain statement of 9 the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice 10 of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 11 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “The issue is not 12 whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to 13 support the claims.” Scheuer, 416 U.S. at 236 (1974). 14 IV. ANALYSIS 15 A. Legality of HSI Searches of Cell Phones 16 Plaintiff’s complaint argues that Defendant facilitated the illegal searches of his cell 17 phones by sending them to HSI to be searched. However, HSI could not search the cell phones 18 under the terms of his parole conditions because HSI agents are not probation officers, agents or 19 officers of the CDCR, or peace officers under California law.4 20 Defendant argues that California law permitted HSI to assist her with the searches and 21 thus the searches of the cell phones were permitted by Plaintiff’s parole conditions. (ECF No. 23, 22 p. 18). In reliance, she cites California Penal Code § 830.8(a)(3), which provides as follows: 23 “Federal criminal investigators and law enforcement officers are not California peace officers, but 24 may exercise the powers of arrest of a peace officer in any of the following circumstances: When 25 requested by a California law enforcement agency to be involved in a joint task force or criminal 26 investigation.” Defendant points out that Plaintiff’s complaint acknowledges that the searches of 27 4 Notably, Plaintiff’s complaint is directed to the initial warrantless searches of his cell phones by HSI in 28 2017, not the later searches by HSI conducted pursuant to the warrant. 1 Plaintiff’s cell phones were carried out at the direction of Defendant who requested a forensic 2 analysis by HSI as part of her investigation team. (Id. (citing ECF No. 1, pp. 6-7)). 3 The Fourth Amendment provides: 4 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants 5 shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be 6 seized. 7 U.S. Const. amend. IV. 8 “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness,’” and thus, 9 “[w]here a search is undertaken by law enforcement officials to discover evidence of criminal 10 wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant.” Riley v. 11 California, 573 U.S. 373, 381-82 (2014) (second alteration in original) (internal quotation marks 12 and citations omitted). “In the absence of a warrant, a search is reasonable only if it falls within a 13 specific exception to the warrant requirement.” Id. at 382. 14 In Riley, the Supreme Court held that a warrant is generally required to search a cell phone 15 seized incident to arrest. 573 U.S. at 401, 403. In so holding, the Supreme Court recognized that 16 modern cell phones are “a pervasive and insistent part of daily life” with “vast quantities of 17 personal information” that “hold for many Americans ‘the privacies of life.’” Id. at 385, 386, 403 18 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). “The fact that technology now allows 19 an individual to carry such information in his hand does not make the information any less worthy 20 of the protection for which the Founders fought.” Riley, 573 U.S. at 403. 21 The Ninth Circuit has held that the reasoning in Riley applies to warrantless, suspicionless 22 searches of probationers’ cell phones, United States v. Lara, 815 F.3d 605, 612 (9th Cir. 2016), 23 but has declined to extend Riley to parolees, United States v. Johnson, 875 F.3d 1265, 1273-76 24 (9th Cir. 2017); cf. United States v. Korte, 918 F.3d 750, 756 (9th Cir. 2019) (holding that 25 warrantless placement of GPS tracker on parolee’s car did not violate Fourth Amendment). 26 In declining to extend Riley to parolees, the Ninth Circuit explained that “status as a 27 parolee significantly diminishes one’s privacy interests as compared to the average citizen.” 28 1 Johnson, 875 F.3d at 1273. “‘[P]arole is an established variation on imprisonment of convicted 2 criminals’ and granted only ‘on the condition that the prisoner abide by certain rules during the 3 balance of the sentence.’ Parolees are thus subject to various state-imposed intrusions on their 4 privacy, including mandatory drug tests, meetings with parole officers, and travel restrictions.” Id. 5 (quoting Samson v. California, 547 U.S. 843, 850, 851 (2006)). “California law also specifically 6 provides that all parolees shall be ‘subject to search or seizure by a probation or parole officer or 7 other peace officer at any time of the day or night, with or without a search warrant or with or 8 without cause.’” Johnson, 875 F.3d at 1274. Thus, a warrantless search of a parolee’s cell phone 9 pursuant to applicable state law is not unreasonable and does not violate the Fourth Amendment. 10 See id. at 1274-75. 11 However, a parole search is reasonable and proper only if it complies with applicable state 12 law. United States v. Garcia-Cruz, 978 F.2d 537, 541 (9th Cir. 1992) (“A parole search is proper 13 if conducted in a manner consistent with state law.”). “Only after the meaning and scope of a 14 [parole] search clause are determined, under state law, does the federal Fourth Amendment 15 analysis begin.” United States v. King, 736 F.3d 805, 807 n.3 (9th Cir. 2013); accord United 16 States v. Cervantes, 859 F.3d 1175, 1183 (9th Cir. 2017), as amended on denial of reh’g and 17 reh’g en banc (Sept. 12, 2017) (“A search of a parolee that complies with the terms of a valid 18 search condition will usually be deemed reasonable under the Fourth Amendment.”). 19 Notably, the California Court of Appeals has found a similar search to the one conducted 20 here to be permissible under state law. In People v. Royal, the appellant argued that the 21 attachment of a GPS tracking device by FBI agents was unlawful “because they were not peace 22 officers and only peace officers may conduct parole searches.” No. 2D CRIM. B241841, 2013 23 WL 3777147, at *4 (Cal. Ct. App. July 18, 2013) (unpublished) (citing § 830.8). While initially 24 noting that this argument was waived, the California Court of Appeals went on to determine that 25 it “lacks merit because Detective Claytor, who was a peace officer, was acting in concert with the 26 FBI agents and authorized the attachment of the GPS tracking device.” Id. 27 The same holds true here. As Plaintiff acknowledges in his complaint, “Defendant 28 provided HSI with an opportunity to search the cell phones, requesting their assistance” as part of 1 Defendant’s “investigation team.” (ECF No. 1, p. 6, 7). Plaintiff does not dispute that Defendant, 2 his parole officer, was authorized under his parole conditions to conduct parole searches. And, 3 like in Royal, Defendant was permitted under § 830.8(a)(3) to request the search of Plaintiff’s cell 4 phones by HSI as part of joint investigation. Accordingly, Defendant did not violate Plaintiff’s 5 Fourth Amendment rights by providing the cell phones seized pursuant to the terms of Plaintiff’s 6 parole to HSI as part of a joint criminal investigation. 7 B. Failure to Prosecute and Comply with Court Orders 8 Noting Plaintiff’s lack of opposition to the motion to dismiss, Defendant has 9 supplemented her motion and requests that this case be dismissed for Plaintiff’s lack of 10 opposition and failure to comply with the Court’s orders under Federal Rule of Civil Procedure 11 41(b). (ECF No. 34, p. 3). 12 Rule 41(b) provides as follows: “If the plaintiff fails to prosecute or to comply with these 13 rules or a court order, a defendant may move to dismiss the action or any claim against it.” “In 14 determining whether to dismiss a[n] [action] for failure to prosecute or failure to comply with a 15 court order, the Court must weigh the following factors: (1) the public’s interest in expeditious 16 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 17 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 18 favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 19 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 20 “The public’s interest in expeditious resolution of litigation always favors dismissal.” Id. 21 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 22 first factor weighs in favor of dismissal here. 23 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 24 determine whether the delay in a particular case interferes with docket management and the 25 public interest.” Id. Here, Plaintiff has failed to file any opposition to the motion to dismiss 26 despite four extensions of time and the Court’s orders requiring him to do so. (ECF Nos. 28, 30, 27 31, 33). Notably, Plaintiff has not filed anything in this case since his last extension request on 28 October 8, 2021. (ECF No. 32). Accordingly, his failure to participate is delaying this case. 1 Moreover, such failure to respond to the Court’s orders indicates that Plaintiff has no intention of 2 pursuing this case. And, allowing this case to proceed further, without any indication that Plaintiff 3 wishes to prosecute this action, would waste judicial resources. Therefore, the second factor 4 weighs in favor of dismissal. 5 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 6 and of itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 991). 7 However, “delay inherently increases the risk that witnesses’ memories will fade and evidence 8 will become stale,” id. at 643, and it is Plaintiff’s failure to prosecute this case and comply with 9 the Court’s orders that is causing delay and preventing this case from progressing. Therefore, the 10 third factor weighs in favor of dismissal. 11 As for the availability of lesser sanctions, given that Plaintiff has chosen not to prosecute 12 this action and fails to comply with the Court’s orders, despite being warned of possible 13 dismissal, there is little available to the Court which would constitute a satisfactory lesser 14 sanction while protecting the Court from further unnecessary expenditure of its scarce resources. 15 Monetary sanctions are of little use, considering Plaintiff’s in forma pauperis status. And given 16 the stage of these proceedings, the preclusion of evidence or witnesses is not available. While the 17 Court has considered the lesser sanction of dismissal without prejudice, the Court recommends 18 dismissal with prejudice given the amount of time this case has been pending, Plaintiff’s 19 abandonment of this case, and Defendant’s pending motion to dismiss on the merits. 20 Finally, because public policy favors disposition on the merits, this factor weighs against 21 dismissal. Pagtalunan, 291 F.3d at 643. 22 V. CONCLUSION AND RECOMMENDATIONS 23 Accordingly, IT IS HEREBY RECOMMENDED as follows: 24 1) Defendant’s motion to dismiss (ECF No. 23) be GRANTED; 25 2) Plaintiff’s complaint be dismissed with prejudice for failure to state a claim, 26 prosecute this case, and comply with court orders; and 27 3) The Clerk of Court be directed to close this case. 28 These findings and recommendations will be submitted to the United States District Judge 1 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within twenty-one 2 | (21) days after being served with these findings and recommendations, any party may file written 3 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 4 | Findings and Recommendations.” Any reply to the objections shall be served and filed within 5 | fourteen (14) days after service of the objections. The parties are advised that failure to file 6 | objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 7 | Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 8 | (9th Cir. 1991)). 9 10 IT IS SO ORDERED. 11] Dated: _February 4, 2022 [sf ey 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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