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Colbert v. Beard

United States District Court, E.D. California

April 3, 2018

JOHN E. COLBERT, Plaintiff,
v.
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.)

          Gary S. Austin UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         John E. 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.)

         II. 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 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 standard. Id.

         III. SUMMARY OF PLAINTIFF'S COMPLAINT

         Plaintiff 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, “Defendants”).

         In brief, Plaintiff alleges that:

         Plaintiff 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.)

         In 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. (Id.)

         In 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.)

         In 2011, Plaintiff was diagnosed with Valley Fever. (Id. at 5 ...


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