United States District Court, E.D. California
JOHN E. COLBERT, Plaintiff,
JEFFREY A. BEARD, et al., Defendants.
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED
AS BARRED BY STATUTE OF LIMITATIONS (ECF No. 1.)
S. Austin UNITED STATES MAGISTRATE JUDGE
Colbert (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983. On March 29, 2017, Plaintiff filed the Complaint
commencing this action, which is now before the court for
screening. (ECF No. 1.)
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).
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).
complaint is required to 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 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(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). To state a viable claim, Plaintiff
must set forth “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Iqbal, 556 U.S. at 678-79;
Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). While factual allegations are accepted as true,
legal conclusions are not. Id. The mere possibility
of misconduct falls short of meeting this plausibility
SUMMARY OF PLAINTIFF'S COMPLAINT
is a state prisoner presently incarcerated at San Quentin
State Prison in San Quentin, California. The events at issue
in the Complaint allegedly occurred at Pleasant Valley State
Prison (PVSP) in Coalinga, California, when Plaintiff was
incarcerated there in the custody of the California
Department of Corrections and Rehabilitation (CDCR).
Plaintiff names as defendants Jeffrey A. Beard (Secretary,
State of California), Paul D. Brazelton (Warden, PVSP),
Edmund Brown (Governor, State of California), Matthew Cate
(Former Secretary, State of California), the CDCR, Susan L.
Hubbard (Former Director of Division of Adult Operations),
Deborah Hysen (Chief Deputy Secretary, Facilities Planning,
Construction and Management), Dr. Felix Igninosa (Medical
Director, PVSP), J. Clark Kelson (Head of California
Corrections Health Care Services), Tanya Rothchild (Former
Chief, Classification Service Unit), Arnold Schwarzenegger
(Former Governor, State of California), and Dr. Dwight
Winslow (Former Medical Director, CDCR) (collectively,
brief, Plaintiff alleges that:
is a 62-year-old African [American] male. He was convicted of
unlawful driving of a vehicle and possession of .05 grams of
cocaine (ran concurrent), and prior convictions enhancements
under the Three Strikes Law, and is serving a 25 year to life
sentence. (ECF No. 1 at 4-5 ¶IV.) Plaintiff is eligible
for release under the Three Judge Court Order under Medical
Illness for contracting Valley Fever, being over 60 years
old, and Proposition 57. (Id.)
2001, Plaintiff was transferred from Avenal State Prison to
PVSP. (ECF No. 1 at 5 ¶3.) While at Delano State Prison
Reception Center, Plaintiff made medical staff aware of his
history of having chronic allergies and Tuberculosis and
requested to remain at Delano State Prison mainline.
(Id.) Delano and Avenal State Prison disregarded
Plaintiff's medical illness and transferred Plaintiff to
PVSP. Plaintiff remained at PVSP until August 8, 2012.
2010, Plaintiff first noticed physical problems.
(Id. at 5 ¶5.) He had trouble breathing, joint
pain, a rash on his body, and other illnesses. (Id.
at 5 ¶4.)
2011, Plaintiff was diagnosed with Valley Fever.
(Id. at 5 ...