Petersen v. Sims

Opinion

KYLE PETERSEN, No. 1:20-cv-00884-DAD-EPG Plaintiff, v. ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION (Doc. No. 20) Defendant.

Plaintiff Kyle Petersen is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Before the court is plaintiff’s second motion for reconsideration of the undersigned’s November 23, 2020 order (Doc. No. 15) adopting the assigned magistrate judge’s September 2, 2020 findings and recommendations (Doc. No. 10). (Doc. No. 20.) In that order, the court stayed this action pending resolution of plaintiff’s appeal to the Ninth Circuit from the judgment of conviction entered in his criminal case. (Doc. No. 15.) In particular, the court found the issues presented to the Ninth Circuit in that appeal were relevant to the claims plaintiff brings in this civil action concerning the search of his cellular phones as part of the investigation of his criminal case. (Id. at 2.) In his second motion for reconsideration, plaintiff contends that the court should reconsider its order staying the action and reiterates the same arguments previously made in his first motion for reconsideration (Doc. No. 16). (Doc. No. 20 at 3, 5-6.) On May 3, 2021, the Ninth Circuit issued an opinion in plaintiff's appeal from the judgment of conviction entered in his criminal case. United States v. Peterson, No. 19-10246, 6} _ F.3d___, 2021 WL 1727623 (9th Cir. May 3, 2021). As relevant to the instant action, the Ninth Circuit affirmed the district court’s rulings denying plaintiff's motions to suppress evidence obtained from the seizures and searches of his cellular phones. (d. at *6.) As aresult of the Ninth Circuit’s opinion issued on May 3, 2021, plaintiffs motion for reconsideration of this court’s order staying the instant action has been rendered moot. Accordingly, 1. Plaintiff's motion for reconsideration (Doc. No. 20) is denied as moot; 2. Plaintiff shall file a copy of the Ninth Circuit’s opinion concerning his appeal together with a statement regarding whether he wishes to proceed with this civil action no later than June 3, 2021; and 3. This case is referred back to the assigned magistrate judge for further proceedings. IT IS SO ORDERED. me □ Dated: _-May 19, 2021 Yole A Lange UNITED STATES DISTRICT JUDGE