United States District Court, E.D. California
DIRECTING CLERK OF COURT TO FILE LODGED SECOND AMENDED
COMPLAINT ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION, WITHOUT LEAVE TO AMEND, FOR
FAILURE TO STATE A CLAIM FOURTEEN (14) DAY DEADLINE
BARBARA A. MCAULIFFE UNITED STATES
Michael Jacobsen (“Plaintiff”) is a pretrial
detainee proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff's complaint, filed on November 21, 2016, was
screened by the Court and Plaintiff was granted leave to
amend. (ECF No. 1.) Plaintiff filed his First Amended
Complaint on September 11, 2017, but before the Court could
screen the First Amended Complaint, Plaintiff lodged a Second
Amended Complaint on October 5, 2017. (Doc. 18.)
review of both the First Amended Complaint and the lodged
Second Amended Complaint (“SAC”) shows that the
SAC is intended to supersede the First Amended Complaint.
Although Plaintiff was not granted leave to filed a SAC, in
the interest of judicial economy, the Court will direct the
clerk the file the SAC and will turn to screening the SAC.
See Fed.R.Civ.P. 15 (a) (a party may amend once as a matter
of right, but must seek court leave for other amendments).
SAC, Plaintiff names Property Sergeant Kirk Pool, Fresno
Police Department, as the sole defendant.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted). To survive
screening, Plaintiff's claims must be facially plausible,
which requires sufficient factual detail to allow the Court
to reasonably infer that each named defendant is liable for
the misconduct alleged, Iqbal, 556 U.S. at 678, 129
S.Ct. at 1949 (quotation marks omitted); Moss v. United
States Secret Service, 572 F.3d 962, 969 (9th Cir.
2009). The sheer possibility that a defendant acted
unlawfully is not sufficient, and mere consistency with
liability falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(quotation marks omitted); Moss, 572 F.3d at 969.
is no longer detained in custody. At the time of the events
in the complaint, Plaintiff was a pretrial detainee at the
Fresno County Jail. Plaintiff names Property Sergeant Kirk
Pool as defendant. Plaintiff alleges that his property that
was booked or seized has been either lost or destroyed, and
he claims violation of Due Process or cruel and unusual
punishment. Plaintiff claims that in four separates cases or
bookings, his property was seized and was not returned to
him. Plaintiff itemizes the property in each of the four
cases. In each of the cases, his property was destroyed or
went missing. In case 12-62357, the property was destroyed
after a reviewing detective authorized it. In case 13-77679,
the items seized from his home pursuant to a search warrant
came up missing. In case 16-43095, his property was taken
incident to arrest and when he was released, he was told his
property was held for sixty days and then destroyed. In case
number 16-63223, Plaintiff requested that his property be
booked as “bulk property” and he wrote to
Defendant Pool who stated that they would extend the date for
six months to hold his property. But when Plaintiff was
released within that six months and went to retrieve his
property, the property had been destroyed. Defendant Pool
told Plaintiff that the six month extension had been
“overlooked.” Plaintiff itemizes the type of
property and value of each.
seeks return of his property or reimbursement of monetary
damages of $5, 000.