Petersen v. Sims, 1:19-cv-00138-DAD-EPG

• Decision Date: 17 December 2021
• Docket Number: 1:19-cv-00138-DAD-EPG
• Parties: KYLE PETERSEN, Plaintiff, v. ANTHONY SIMS, JR. and NICHOLAS TORRES, Defendants.
• Court: U.S. District Court — Eastern District of California

KYLE PETERSEN, Plaintiff,
v.
ANTHONY SIMS, JR. and NICHOLAS TORRES, Defendants.

No. 1:19-cv-00138-DAD-EPG

United States District Court, E.D. California

December 17, 2021

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT: DEFENDANTS' MOTION TO DISMISS BE GRANTED (ECF NO. 46) PLAINTIFF'S MOTION TO FILE A SURREPLY BE DENIED (ECF NO. 61) PLAINTIFF'S MOTION REQUESTING THAT THIS COURT RECONSTRUE THIS ACTION AS AN ACTION UNDER 42 U.S.C. § 1983 OR ALLOW PLAINTIFF TO AMEND BE DENIED (ECF NO. 62) PLAINTIFF'S MOTION TO AMEND COMPLAINT BE DENIED (ECF NO. 65) PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE BE DENIED (ECF NO. 93)

1

Plaintiff Kyle Petersen, a federal prisoner proceeding pro se and in forma pauperis, filed the complaint commencing this Bivens action on January 31, 2019. Plaintiff's third amended complaint, (ECF No. 9), and the supplement thereto, (ECF No. 13), allege that Defendants Anthony Sims, Jr. and Nicholas Torres, both federal agents, violated Plaintiff's Fourth Amendment rights by conducting forensic searches of Plaintiff's cell phones. Before the Court are Defendants' motion to dismiss (ECF No. 46), Plaintiff's motion to file a surreply with respect to Defendants' motion to dismiss (ECF No. 61), Plaintiff's motion to reconstrue this action as one under 42 U.S.C. § 1983 or to amend the complaint (ECF No. 62), Plaintiff's motion to amend the complaint (ECF No. 65), and Plaintiff's request for judicial notice (ECF No. 93).

Defendants' motion to dismiss argues that there is no Bivens remedy for Plaintiff's claims and that they are entitled to qualified immunity. (ECF No. 46). Plaintiff filed an opposition and a supplement thereto on May 8, 2020, (ECF Nos. 54, 55), and Defendants filed a reply brief on May 15, 2020. (ECF No. 56). On June 15, 2020, Plaintiff filed a motion to file a surreply. (ECF No. 61). Defendants filed an opposition on July 6, 2020, to the motion to file a surreply. (ECF No. 64).

In addition, Plaintiff has filed two motions related to changing the nature of this lawsuit. On June 15, 2020, Plaintiff filed a motion to reconstrue this action as an action under 42 U.S.C. § 1983 or to allow Plaintiff to amend. (ECF No. 62). On July 10, 2020, Plaintiff filed a motion to amend his complaint. (ECF No. 65). Defendants filed oppositions to both motions (ECF Nos. 64, 68), and Plaintiff filed reply briefs to both oppositions (ECF Nos. 67, 69).

On January 5, 2021, the District Judge stayed this action pending the result of Plaintiff's underlying criminal appeal. (ECF No. 81, see ECF No. 79). After the Ninth Circuit affirmed, United States v. Peterson, 995 F.3d 1061, 1063 (9th Cir. 2021), cert. denied, No. 21-5748, 2021 WL 5167892 (U.S. Nov. 8, 2021), this Court entered an order on June 10, 2021, directing the parties to file supplemental briefs addressing the effect, if any, of the decision. (ECF No. 88). Both parties filed supplemental briefs stating that the Ninth Circuit's decision did not affect the pending motion to dismiss. (ECF Nos. 91, 92).

On November 8, 2021, Plaintiff filed a request for judicial notice, asking the Court to

2

judicially notice certain facts, presumably in connection with the pending motion to dismiss. (ECF No. 93). Defendants did not file any response to this request. Accordingly, the matters addressed in these findings and recommendations are now ripe for decision.

For the following reasons, the Court recommends: (2) granting Defendants' motion to dismiss, (2) denying Plaintiff's motion to file a surreply, (3) denying Plaintiff's motions to reconstrue this action as one under § 1983 or to grant leave to amend the complaint, and (4) denying Plaintiff's request for judicial notice.

Plaintiff has twenty-one (21) days from the date of service of these findings and recommendations to file his objections.

I. SUMMARY OF THIRD AMENDED COMPLAINT

Plaintiff alleges that on April 1, 2017, he was released from prison to a parole term of three years. (ECF No. 13, p. 2). As part of his parole, Plaintiff signed a notice and conditions of parole, which included the following condition:

You, your residence, and any property under your control are subject to search and seizure by a probation officer, an agent or officer of the California Department of Corrections and Rehabilitation, or any other peace officer at any time of the day or night, with or without a warrant with or without cause

(Id.). Plaintiff was also prohibited from possessing a cell phone with internet access or a camera. (Id.)

A. Seizure and Search of Unimax Cell Phone

On May 23, 2017, Plaintiff's parole agent, with the assistance of agents from the U.S. Department of Homeland Security Investigations (HSI), conducted a warrantless parole search of the sober living home in which Plaintiff was living. (Id.). During the search, a Unimax cell phone with internet access and a camera was found in Plaintiff's room. (Id.). Plaintiff's parole agent searched the Unimax cell phone and allegedly found “several images of children naked.” (Id.). Plaintiff was placed in custody and booked into Kern County jail on a parole hold. (Id.).

On May 26, 2017, the Unimax cell phone was forwarded to HSI Special Agent, Defendant Nicholas Torres, for forensic analysis. (Id. at 3). On that same day, Defendant Torres forwarded the cell phone to HSI Special Agent, Defendant Anthony Sims, Jr., who is a forensic specialist,

3

for a warrantless search of the cell phone. (Id.). Sims began the warrantless search of the cell phone on May 26, 2017, and continued the search beyond that day. (Id.). On June 1, 2017, Plaintiff's parole was formally revoked in connection with the May 23, 2017, parole search. (Id.). On June 15, 2017, Defendant Sims completed the forensic search of the Unimax cell phone. (Id.). On June 17, 2017, “Plaintiff was released from his parole violation.” (Id.).

B. Seizure and Search of LG Cell Phone

On July 6, 2017, Plaintiff was stopped by his parole agent and she seized from Plaintiff an LG cell phone with internet access and a camera. (Id.). The parole agent allegedly found images of naked children on the LG cell phone. She placed Plaintiff into custody and booked him into the Kern County Jail on a parole hold. (Id.). The parole agent sent the LG cell phone to HSI for forensic analysis. On July 14, 2017, Plaintiff's parole was formally revoked in connection with the July 6, 2017, parole search.^[1] (Id.). “Plaintiff was released from his parole violation a few days later.” (Id.). On September 23, 2017, Defendant Sims conducted a warrantless forensic search of the LG cell phone seized from Plaintiff during the July 6, 2017 search. (Id.).

C. Seizure and Search of Three Additional Cell Phones

Between July 17, 2017, and September 23, 2017, Plaintiff's parole agent seized three additional cell phones from Plaintiff. (Id.). All three of these cell phones were sent to Defendant Sims for forensic analysis. On September 23, 2017, Defendant Sims conducted a forensic search of the three cell phones. (Id.).

D. Claims

Plaintiff's complaint brings two claims, both alleging violations under the Fourth Amendment because of the warrantless search of his cell phones. Plaintiff's first claim alleges that Defendant Torres accepted the Unimax cell phone “from parole agents on May 26, 2017, ” and requested that Defendant Sims conduct a warrantless search of the cell phone, with a search of the device occurring after Plaintiff's parole had been revoked. (ECF No. 9, p. 3). Plaintiff's

4

second claim is substantially similar, alleging that Defendant Torress accepted four other cell phones “from parole agents between July 17, 2017, and September 25, 2017, ” and requested that Defendant Sims conduct a warrantless search, with a search of the devices occurring after Plaintiff's parole had been revoked. (Id. at 4).

E. Screening of Third Amended Complaint

On September 27, 2019, this Court screened Plaintiff's third amended complaint, concluding that, “it state[d] cognizable claims against Defendant Anthony Sims and Defendant Nicholas Torres for violation of Plaintiff's Fourth Amendment right against unreasonable search.” (ECF No. 14, p. 11). However, the Court repeatedly noted that this determination was made only “for purposes of screening.” (Id. at 2, 4, 7, 8, 11). The screening order did not address the defense of qualified immunity.

F. Federal Indictment...