Petersen v. Buyard

KYLE PETERSEN, Plaintiff, v. MEKIASH BUYARD, Defendant.

No. 1:20-cv-00999-DAD-EPG

United States District Court, E.D. California

August 18, 2021

ORDER GRANTING MOTION TO PROCEED WITH CASE

(ECF NO. 12)

FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED, WITH PREJUDICE, BASED ON RES JUDICATA AND FAILURE TO STATE A CLAIM

(ECF NO. 1)

OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE (21) DAYS

Plaintiff, Kyle Petersen, is proceeding pro se and in forma pauperis in this civil rights action, filed on July 20, 2020, pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The complaint alleges that Mekisha Buyard, a California Department of Correction and Rehabilitation Parole Agent, violated his Fourth Amendment rights by unlawfully searching the contents of his various cell phones. Plaintiff filed a civil action on the same allegations against the same Defendant in Case No. 19-cv-235. (Case No. 19-cv-235, ECF No. 1). That case was dismissed by a final judgment on the merits on December 17, 2019. (ECF Nos. 21, 22; see ECF No. 16).

Additionally, the constitutionality of some of the searches at issue in the instant case was litigated by Plaintiff on appeal of his underlying criminal conviction, with the Ninth Circuit concluding that “the parole searches were constitutionally permissible.” United States v. Peterson, 995 F.3d 1061, 1068 (9th Cir. 2021).

Because Plaintiff's complaint is barred by res judicata and also fails to state any cognizable claim, the Court recommends dismissal of this civil action with prejudice and the denial of leave to amend.

Objections are due within 21 days of service of these findings and recommendations.

I. MOTION TO PROCEED WITH THE CASE

The District Court previously stayed this case pending the Ninth Circuit's decision regarding Plaintiff's criminal appeal. (ECF Nos. 7, 9).

The Ninth Circuit has since issued its decision, affirming the District Court, see United States v. Peterson, 995 F.3d 1061 (9th Cir. 2021), the stay has been lifted, and Plaintiff filed a “motion informing the Court of Plaintiff's wish to proceed in this action.” (ECF No. 12). Although Plaintiff was required to only file “a statement regarding whether he wishes to proceed in this action, ” not a motion, the Court will grant the motion to proceed with this case and screen the complaint. (ECF No. 9, p. 2; ECF No. 12).

II. SCREENING REQUIREMENT

The Court is required to screen complaints brought by inmates seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the inmate has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

As Plaintiff is proceeding in forma pauperis, the Court also screens the complaint under 28 U.S.C. § 1915. Under 28 U.S.C. § 1915(e)(2), in any case in which a plaintiff is proceeding in forma pauperis, the Court must conduct a review of the complaint to determine whether it “state[s] a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seek[s] monetary relief against a defendant who is immune from such relief.” If the Court determines that the complaint fails to state a claim on which relief may be granted, it must be dismissed. Id. Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.'” Iqbal, 556 U.S. at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. at 678.

In determining whether a complaint states an actionable claim, the Court must accept the allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

III. SUMMARY OF PLAINTIFF'S COMPLAINT

Plaintiff was released from prison to a parole term. (See ECF No. 1 at 5.) As part of his parole, Plaintiff was required to comply with certain terms and conditions. (Id.). One of the parole conditions provided as follows:

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.)

On May 23, 2017, while Plaintiff was on parole, Defendant “searched Plaintiff's [Unimax] cell phone without a warrant.” (ECF No. 1, p. 2). As part of this search, “Defendant accessed the internet ‘browser' . . . opened Plaintiff's Facebook account and searched it, and opened and searched Plaintiff's account on ‘Plenty of Fish;' a dating application.” (Id. at 2-3). “On July 6, 2017, Defendant searched Plaintiff's LG cell phone without a warrant” opening and searching “several social media applications.” (Id. at 3). And, “[o]n August 2, 2017, September 6, 2017, October 5, 2017, and October 21, 2017, Defendant searched a total of five of Plaintiff's cell phones. In each of these searches, Defendant accessed social media accounts.”^[1] (Id.).

Plaintiff argues that the search of his devices and the social mesdia accounts (which he refers to as “remote ‘cloud' data”) was not permitted under his agreed conditions of parole and that Defendant thus impermissibly searched his cell phones and their content without a warrant in violation of the Fourth Amendment. (Id. at 10). Plaintiff seeks a total of $2, 800, 000 in punitive damages and $350 in compensatory damages. (Id. at 13).

Aside from the above allegations in the complaint, Plaintiff notes the dismissal of his prior case against Buyard, Case No. 19-cv-235. (Id. at 3). Notably, after recounting the dismissal of that case, he states: “After careful research, Plaintiff has found that the court was incorrect.” (Id. at 4). He then argues that his parole conditions did not permit the search of his cell phones and their content. (See id. at 10-13).

IV. PRIOR CIVIL CASE

Plaintiff commenced his prior civil action against Defendant Buyard on February 19, 2019. (Case No. 19-cv-235, ECF No. 1). Plaintiff filed a first amended complaint on March 14, 2019. (Case No. 19-cv-235, ECF No. 8). The Court struck the first amended complaint because it was not signed by Plaintiff and instructed him to file an amended complaint bearing his signature. (Case No. 19-cv-235, ECF No. 9). On April 1, 2019, Plaintiff filed a second amended complaint (Case No. 19-cv-235, ECF No. 10), and on September 9, 2019, Plaintiff lodged a third amended complaint (Case No. 19-cv-235, ECF No. 13).

The third amended complaint brought claims against Defendant for allegedly violating Plaintiff's Fourth Amendment rights in connection with the warrantless parole searches of his cell phones, including the searches of his Unimax and LG cell phones, “four or five [other] cell phones, ” and social media data (e.g., Facebook) contained on his cell phones. (Case No. 19-cv-235, ECF No. 17, pp. 3-4). This Court issued findings and recommendations, recommending that the case be dismissed without leave to amend under Heck v. Humphrey, 512 U.S. 477 (1994) and because the searches of the cell phones and their contents fell within the terms of his parole conditions. (Case No. 19-cv-235, ECF No. 16). The District Court adopted the findings and recommendations, dismissing the case on the merits in a judgment entered on December 17, 2019. (Case No. 19-cv-235, ECF Nos. 21, 22). Plaintiff moved for reconsideration, and the District Court denied the motion. (Case No. 19-cv-235, ECF Nos. 23, 24). Plaintiff did not file an appeal of the dismissal.

V. NINTH CIRCUIT DECISION REGARDING CRIMINAL CASE

Plaintiff pled guilty in his underlying criminal case, reserving the right to appeal the denial of his motion to suppress the evidence seized from the May 23, 2017, and July 6, 2017 parole searches of his Unimax and LG cell phones.^[2]

On appeal, Plaintiff challenged the denial of his motion to suppress these parole searches. His opening brief specifically argued that the parole conditions did not extend to the cell phones or their contents, including his social media data obtained from platforms like Facebook. (Appellate Case No. 19-10246, ECF No. 9, p. 34-41). The Ninth Circuit concluded that Plaintiff had a diminished expectation of privacy as a parolee and thus the district court was correct in denying his motion to suppress. Peterson, 995 F.3d at 1068. Plaintiff filed a petition for rehearing en banc, which was denied on August 2, 2021. (Appellate Case No. 19-10246, ECF Nos. 36, 40, 41). The mandate has also...