Kyle Petersen v. Anthony Sims, Jr.

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KYLE PETERSEN, No. 22-15362 Plaintiff-Appellant, D.C. No. 1:19-cv-00138-DAD-EPG v. MEMORANDUM* ANTHONY SIMS, Jr., HSI Agent; NICHOLAS TORRES, HSI Agent, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding Submitted August 15, 2023** Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges. Kyle Petersen appeals pro se from the district court’s order dismissing his 42 U.S.C. § 1983 action alleging that warrantless searches conducted after his parole revocation of cell phones seized during earlier parole searches violated the Fourth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). dismissal under Federal Rule of Civil Procedure 12(b)(6) on the basis of qualified immunity. Benavidez v. County of San Diego, 993 F.3d 1134, 1141 (9th Cir. 2021). We affirm. The district court properly dismissed Petersen’s action on the basis of qualified immunity because defendants’ conduct did not violate clearly established constitutional rights. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (government officials are entitled to qualified immunity where there is no violation of plaintiff’s constitutional right or the right at issue was not “clearly established” at the time of the alleged violation); see also District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (explaining that “clearly established” means that the constitutional question was “beyond debate,” such that every reasonable official would understand that what he is doing is unlawful). We do not consider arguments raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. 2 22-15362