The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
This is a civil action filed pursuant to 42 U.S.C. § 1983 by an immigration detainee. Plaintiff proceeds pro se and in forma pauperis, and has consented to the jurisdiction of this court. See Doc. No. 4. By order filed April 30, 2012, the court dismissed plaintiff's complaint with leave to amend. Plaintiff was informed of the deficiencies in his complaint, and given twenty-eight days to filed an amended complaint, making the amended complaint due by June 1, 2012.
On July 3, 2012, more than 30 days after plaintiff's deadline under the April 30, 2012 order had expired, plaintiff filed his amended complaint. Plaintiff offers no explanation for the late filing. While the amended complaint is signed and dated May 31, 2012, there is no proof of service, in violation of Federal Rule of Civil Procedure 5 and Local Rule 135(c). Plaintiff is accordingly not entitled to a constructive filing date of May 31, 2012, and the amended complaint is considered filed on July 3, 2012. See Houston v. Lack, 487 U.S. 266, 275-76, 108 S.Ct. 2379, 2385, 101 L.Ed.2d 245 (1988).
In light of plaintiff's status as an incarcerated pro se plaintiff, the court will nonetheless screen the tardy amended complaint. However, plaintiff is advised that the court will not again overlook plaintiff's failure to comply timely with its orders, or to file a proof of service as required by Federal Rule of Civil Procedure 5 and Local Rule 135(c).*fn1
In his amended complaint, plaintiff alleges that, on June 28, 2004, unknown officers of the Sacramento Police Department confiscated his personal property. See Doc. No. 8 at 8. Plaintiff further alleges that, on an unspecified date between January 2006 and August 2009, defendant Sharon Ramos, the Supervisory Custodian of Record at the Sacramento Police Department, "ordered and supervised the destruction" of plaintiff's personal property. See id. at 2, 8. Plaintiff alleges that the actions of defendant Ramos were "pursuant to an affirmatively established policy, procedure and practise of Sacramento Police department, that resulted in the deprivation of plaintiff's above mentioned properties without due process in violation of plaintiff's due process clause of the fourteenth amendment...." Id. at 10.
Plaintiff additionally alleges that, on an unspecified date between January 2006 and August 2009, defendant H. Ojrilik, an officer with the Sacramento Police Department, destroyed plaintiff's personal property. See Doc. No. 8 at 10. Plaintiff alleges that defendant Ojrilik's actions were "pursuant to an affirmatively established policy, procedure and practise of Sacramento Police department, that resulted in the deprivation of plaintiff's above mentioned properties without due process in violation of plaintiff's due process clause of the fourteenth amendment...." Id. at 10-11.
Sufficiency of the Factual Allegations
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
In this case, plaintiff alleges that defendants Ramos and Ojrilik destroyed his personal property, in accordance with a policy, procedure, and practice, in violation of the due process clause of the Fourteenth Amendment. However, plaintiff fails to identify the policy, procedure or practice at issue, and fails to explain how defendants deprived him of due process. Absent this basic factual information, the court is unable to determine, for example, the process to which plaintiff is entitled, what kind of process plaintiff received, and how the named defendants were responsible for any deprivation. The claims against defendants Ramos and Ojrilik are accordingly vague and conclusory, and they will be dismissed, but plaintiff will be given leave to amend his complaint.
Plaintiff alleges that unknown officers confiscated his property on June 28, 2004. See Doc. No. 8 at 8. Plaintiff further alleges that, "[o]n an unspecified date between June 2006 and August 2009,...." defendants Ramos and Ojrilik destroyed plaintiff's property. Id. at 8, 10.
"Actions brought pursuant to 42 U.S.C. § 1983 are governed by the state statutes of limitations for personal injury actions." Morales v. City of Los Angeles, 214 F.3d 1151, 1154 (9th Cir. 2000), citing Wilson v. Garcia, 471 U.S. 261, 275, 105 S.Ct. 1938, 1947 (1985); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir.1999), cert. denied, 529 U.S. 1117, 120 S.Ct. 1979 (2000). In California, there is a two-year statute of limitations in § 1983 cases. See Cal. Civ. Proc. Code § 335.1; Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Jones v. Blanas, 393 F.3d 918, ...