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Colbert v. Beard

United States District Court, E.D. California

June 28, 2019

JOHN E. COLBERT, Plaintiff,
v.
JEFFREY A. BEARD, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS

          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. (ECF No. 1.)

         On April 3, 2018, the court screened the Complaint and issued an order to show cause, requiring Plaintiff to respond and show cause why this case should not be dismissed as barred by the applicable statute of limitations. (ECF No. 7.) On April 20, 2018, Plaintiff filed a response to the court's order arguing that he is entitled to equitable tolling of the statute of limitations based on his time in surgery. (ECF No. 8.) On April 25, 2019, the court vacated the order to show cause, finding that based on Plaintiff's argument the statute of limitations defense is not complete and obvious from the face of Plaintiff's Complaint, or the court's records. (ECF No. 9.)

         On September 6, 2018, the court screened the Complaint and issued an order dismissing the Complaint for failure to state a claim, with leave to amend. (ECF No. 11.) On October 9, 2018, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (ECF No. 12.) 28 U.S.C. § 1915A.

         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 FIRST AMENDED COMPLAINT

         Plaintiff is a state prisoner presently incarcerated at Solano State Prison in Vacaville, California. The events at issue in the First Amended 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, CDCR, Paul D. Brazelton (Warden, PVSP), Matthew Cate (Former Secretary, State of California), Susan L. Hubbard (Former Director of Division of Adult Operations), Deborah Hysen (Chief Deputy Secretary, Facilities Planning, Construction and Management), and Dr. Dwight Winslow (Former Medical Director, CDCR) (collectively, “Defendants”). Plaintiff's allegations follow.

         Plaintiff is an African-American male. While at Delano State Prison Reception Center, Plaintiff made medical staff aware of his history of chronic allergies and Tuberculosis (TB). Plaintiff was transferred to Avenal State Prison while taking TB medication and was subsequently transferred to PVSP where he completed TB treatment in 2001.

         In 2010, while at PVSP, Plaintiff contracted the disease known as Valley Fever, or Coccidioidomycosis (cocci), and became very ill, with trouble breathing, joint pain, a rash on his body, and other complications. Plaintiff's physical pain was acute, his lungs are permanently compromised, and he will have to take medication for the rest of his life. Physicians have informed Plaintiff that he will likely have long term problems with his lungs and with exerting himself. More than thirty prisoners, and some CDCR employees, have already died from Valley Fever and many more live with serious medical problems from contracting the disease.

         In response to the outbreak, Defendants (CDCR) were to develop a plan addressing the epidemic at Avenal State Prison, PVSP, Wasco State Prison, and other prisons with had an outbreak of Valley Fever. The Federal Bureau of Prisons (BOP) also became involved because of an outbreak at the Correctional Institution in Taft in 2003. The BOP sent an email requiring CDCR and its employees to coordinate policy efforts through the Office of the BOP's medical team.

         Plaintiff alleges that before Defendants assigned him to PVSP, outside of having bad allergies and TB, he was in good health before being diagnosed with Coccidioidomycosis. Plaintiff alleges that each of the Defendants failed (1) to warn Plaintiff adequately of the dangers presented by cocci; (2) to provide Plaintiff with a safe and habitable prison when they neglected to implement various preventative measures to protect Plaintiff, who had a heightened risk of developing the ...


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