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Jack BS v. City of Tulare

United States District Court, E.D. California

March 23, 2017

JACK BS and RACHEL WHIPPLE, Plaintiffs,
v.
CITY OF TULARE; OFFICER ERIC TREVINO; OFFICER JULIA FRANCO; TULARE POLICE CHIEF JERRY BRECKERIDGE; CAPTAIN BROOKSHER; LT. LORI CANABA VILLASENOR; TULARE CITY MANAGER DON BOORMAN; BRAZIL LITIGATION; and MARIAN CORREIA, Defendants.

          ORDER DISMISSING COMPLAINT WITH 30 DAYS LEAVE TO AMEND (DOC. 1.)

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On December 2, 2016, Plaintiff Jack Borders, proceeding pro se, filed a complaint against City of Tulare, Officer Eric Trevino, Officer Julia Franco, Tulare Police Chief Jerry Breckeridge, Captain Brooksher, Lt. Lori Canaba Villasenor, Tulare City Manager Don Boorman, “Brazil Litigation, ” and Marian Correia (collectively “Defendants”).[1] Plaintiff also filed an application to proceed in forma pauperis (IFP). (Doc. 2.)

         For the reasons set forth below, Plaintiff's complaint is DISMISSED with leave to amend.

         II. PLAINTIFF'S COMPLAINT

         Plaintiff's complaint is not a model of clarity. However, the gist of the allegations is that Defendants violated Plaintiff's rights by depriving him of the “property” that is his children, who apparently are not currently in his custody. (See Doc. 1.) Plaintiff alleges that Defendants have refused to return his “non-contraband property” after he “warned Defendants on [May 18, 2015] to return Plaintiff's property.” (Id. ¶ 10.)

         Plaintiff brings two claims: “trespass” and “breach of contract.” (Doc. 1 at 4-8.) Plaintiff's trespass claim alleges that Defendants

arbitrarily and capriciously deprived Plaintiff [Jack Borders] of property [kids] . . . under ‘color of law' without provision for a judicial trial by jury by reason of federal law exceeding Congressional authority under the federal constitution. See the prohibition against “Bills of Attainder” in Article 1, Section 9, Clause 3 of the United States Constitution; U.S. v. Min.. Public Intrest [sic] Research Group, 468 U.S. 841, 491 (1965); U.S. Const. Article 3 § 2, 3; Amendment 6.

(Doc. 1 ¶ 9.)

         Plaintiff's breach of contract claim alleges that Plaintiff “has one valid consensual contract with each of the above named state officials” under the “sixth article of the constitution of the United States[, which] requires ‘all executive and Judicial Officers both of the United States and of the Several States, shall be bound Oath or Affirmation, to support this Constitution.'” (Id. ¶ 11.) Plaintiff alleges further that

[t]hese officials have failed to perform their office under oath, specifically denying multiple constitutional rights or specifically acting against or in excess of their office under a color of law: specifically depriving Plaintiff of due process under the fifth [sic] Amendment and depriving Plaintiff of property under the color of a law which is a form ‘pains and penalties' forbidden by the ‘Bills of Attainder' prohibition in the ninth section of the First Article of the federal constitution.

(Id. ¶ 12.)

         III. DISCUSSION

         A. ...


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