De Tagle v. Santa Clara County, San Jose Police Department

Opinion

1 2 3 7 8 AUSTIN DE TAGLE, Case No. 23-cv-05095-VKD

9 Plaintiff, ORDER SCREENING AMENDED 10 v. COMPLAINT; ORDER TO ISSUE AND SERVE SUMMONS #4610, Re: Dkt. No. 6 12 Defendant.

13 14 Plaintiff Austin de Tagle, who is representing himself, filed this civil rights action against 15 Santa Clara County and the San Jose Police Department on October 4, 2023. Dkt. No. 1. On 16 October 10, 2023, the Court issued an order granting Mr. de Tagle’s application to proceed in 17 forma pauperis (“IFP”) and screening his complaint pursuant to 28 U.S.C. § 1915(e). Dkt. Nos. 2, 18 5. The Court determined that Mr. de Tagle’s original complaint failed to state a claim on which 19 relief could be granted and directed him to file an amended complaint. See Dkt. No. 5. 20 Mr. de Tagle did so on November 1, 2023. Dkt. No. 6. The amended complaint asserts a 21 Fourth Amendment claim for unlawful arrest or detention under 42 U.S.C. § 1983 against “San 22 Jose Police Officer Julian #4610.” Id. It does not assert claims against either Santa Clara County 23 or the San Jose Police Department. The Court concludes that Mr. de Tagle has voluntarily 24 dismissed those defendants from the case. See Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th 25 Cir. 2012) (en banc) (“For claims dismissed with prejudice and without leave to amend, we will 26 not require that they be repled in a subsequent amended complaint to preserve them for appeal. 27 But for any claims voluntarily dismissed, we will consider those claims to be waived if not 1 Having reviewed the amended complaint, the Court concludes that, for purposes of 28 2 U.S.C. § 1915(e), Mr. de Tagle's allegations are sufficient to permit him to proceed with this 3 action without prepayment of the filing fee against San Jose Police Officer Julian #4610. The 4 Court therefore directs the Clerk of the Court to issue the summons and to add San Jose Police 5 Officer Julian #4610 as a defendant on the docket. 6 The U.S. Marshal for the Northern District of California shall serve, without prepayment 7 of fees, a copy of the amended complaint and this order upon San Jose Police Officer Julian 8 #4610. 10 Dated: November 6, 2023 11 . 28 2 ‘ VIRGINIA K. DEMARCHI 13 United States Magistrate Judge © 15 16

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