(PS) Petersen v. Sims

Opinion

KYLE PETERSEN, No. 1:19-cv-00138-DAD-EPG Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ANTHONY SIMS, JR. and NICHOLAS TORRES, (Doc. No. 79) Defendants.

Plaintiff Kyle Petersen is a state prisoner proceeding pro se and in forma pauperis in this civil rights action 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. On November 24, 2020, the assigned magistrate judge issued findings and recommendations, recommending that the case be stayed pending completion of plaintiff’s appeal to the Ninth Circuit “concerning the searches of his cellular phones.” (Doc No. 79 at 5.) The findings and recommendations were served on plaintiff and contained notice that objections thereto were to be filed within twenty-one (21) days after service. (Id.) Plaintiff filed timely objections to the findings and recommendations on December 14, 2020. (Doc. No. 80.) The time to file objections has passed, and defendants have not filed any objections. In his objections to the pending findings and recommendations, plaintiff does not directly address the magistrate judge’s reasoning. Plaintiff's objections reiterate his earlier arguments that defendants’ qualified immunity argument to his Fourth Amendment violation claim is inapposite to the case upon which defendants rely, United States v. Burnette, 698 F.2d 1038 (9th Cir. 1983). Ud. at 2—5.) Plaintiff also contends that defendants are collaterally estopped from denying the validity of the cell phone searches because the evidence obtained as a result of those searches was suppressed (in light of the government’s non-opposition to his motion to suppress that evidence) in his criminal case. (/d. at 6.) The assigned magistrate judge considered these arguments in the pending findings and recommendations. (Doc. No. 79 at 3-4.) In short, plaintiff's arguments advanced in his objections to the pending findings and recommendations are unpersuasive. In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C©), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, including plaintiff's objections, the court finds the findings and recommendations to be supported by the record and proper analysis. Accordingly, 1. The findings and recommendations issued on November 14, 2020 (Doc. No. 79) are adopted in full; 2. This action is stayed pending resolution of plaintiff's pending appeal from the judgment of conviction in his criminal case; 3. Within thirty (30) days of plaintiff receiving an opinion from the Ninth Circuit concerning his appeal, plaintiff shall file such opinion together with a statement regarding whether he wishes to proceed with this civil action; and 4. This case is referred back to the assigned magistrate judge for further proceedings when appropriate. IT IS SO ORDERED. me □ *° Dated: _ January 5, 2021 Yh AL ae UNITED STATES DISTRICT JUDGE