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Jacobsen v. Pool

United States District Court, E.D. California

May 3, 2018

MICHAEL JACOBSEN, Plaintiff,
v.
KIRK POOL, Defendant.

         ORDER 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 MAGISTRATE JUDGE

         Plaintiff 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.)

         A 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).

         In the SAC, Plaintiff names Property Sergeant Kirk Pool, Fresno Police Department, as the sole defendant.

         I. Screening Requirement

         The 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).

         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, 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).

         Prisoners 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.

         II. Plaintiff's Allegations

         Plaintiff 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.

         Plaintiff seeks return of his property or reimbursement of monetary damages of $5, 000.

         III. Discussion

         A. Supervi ...


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