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Isabel Tubach v. Jerry Brown et al

October 4, 2011

ISABEL TUBACH,
PLAINTIFF,
v.
JERRY BROWN ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATION FOR DISMISSAL OF PLAINTIFF'S COMPLAINT (ECF No. 1)

Plaintiff Isabel Tubach ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff filed this action on August 26, 2011. (ECF No. 1.) Plaintiff's Complaint is before the Court for screening.*fn1

I. SCREENING REQUIREMENT

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). A claim is legally frivolous when it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

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, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.

II. SUMMARY OF COMPLAINT

Plaintiff is housed at the Central California Women's Facility. Plaintiff has named the following individuals as defendants: 1) Jerry Brown*fn2 , 2) M. Guzman, an 3) R. Mitchell.

Plaintiff alleges as follows:

Defendants have denied her a biopsy on her tongue. (Compl. at 3.) Plaintiff has cancer spreading to her mouth and has been asking for a biopsy for over a year. (Id.) A "Doctor K" ordered the biopsy weeks ago, but Defendant Mitchell denied it. (Id.) Defendant Guzman is victimizing Plaintiff because he or she is part of a conspiracy to murder Plaintiff. (Id.) Plaintiff asks that she be allowed to receive treatment for her cancer and that Defendant Guzman stop putting "poisonous-substances" down her nose. (Id.) Plaintiff also asks for nitroglycerin. (Id.)

Plaintiff has complained to Defendant Brown about Defendant Guzman's conduct, about Defendant Guzman preventing doctors from doing a biopsy on her tongue, and requesting an "ice chrono" that relieves the burning in Plaintiff's tongue (Id. at 4) Defendant Brown has ignored her requests. (Id.) Defendant Brown has given Defendant Guzman authority to run the prison, and Defendant Guzman has been harassing Plaintiff for 10 years in a "sadistic" and "inhuman" way. (Id. at 5.) Governor Brown has Plaintiff watched because she works in "Central Intelligence American (C.I.A.) it is deny [her] equal protection at laws and cruel and unusual punishment. He has violate [her] federal rights." (Id.)

Defendant Guzman has caused Plaintiff emotional distress, mental anguish, and sent Plaintiff roommates to "put a poisonous-substance in [her] nose to cause [her] physical pains like a physical torture." (Id. at 6) One roommate was a sex-partner of Defendant Guzman, and the other two roommates are mentally ill. (Id.) Defendant Guzman has Plaintiff "under hypnotism" and "they"*fn3 abuse Plaintiff and take advantage of her. (Id.) Defendant Guzman's treatment has resulted in Plaintiff suffering two heart attacks. (Id. at 7) Plaintiff has informed the prison authorities of Defendant Guzman's actions, but they cannot stop him because Defendant Brown is the only one with authority to do so. (Id.)

Defendant Mitchell was named as the chief doctor by Defendant Guzman. (Id.) Defendant Mitchell has stopped Plaintiff from receiving nitroclycerine for her chest pain. (Id. at 7-8.) He ordered the nurses to give her six tablets, but they only give her three. According to Plaintiff, this was "an attempt to murder." (Id. at 8.) Defendant Guzman has also given poison to the person who pushes Plaintiff in her wheelchair. (Id.) A "Felix and Vigil" poisoned Plaintiff in the medicine line, doctors line, and dinning room. (Id.) Defendant Guzman's "officers sex-partner has to put the poison before [orgies]." (Id.) He*fn4 instructed the staff in the kitchen to not give her peanut butter, even though it is the only food Plaintiff can eat. (Id. at 9) The roommates also take the food from Plaintiff's hands. It is "a conspiracy to murder [her]." (Id..)

Plaintiff previously sent a complaint to United States District Court in the Eastern District of California in Fresno, California, against Defendant Guzman. (Id.) Plaintiff sent the Complaint on June 10, 2011, but ...


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