Douglas Steven Bue v. Robert W. Fox

Filing 7

ORDER ACCEPTING REPORT AND RECOMMENDATION of United States Magistrate Judge by Judge Otis D. Wright, II for Report and Recommendation (Issued) 4 . (mba)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DOUGLAS STEVEN BUE,
Petitioner,

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v.

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ROBERT W. FOX,
Respondent.

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Case No.

CV 17-0199- ODW (JCG)

ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed: (1) the Petition; (2) the

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Magistrate Judge’s Report and Recommendation (“R&R”); (3) Petitioner’s

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“Application for Equitable Tolling and Request for Lodging of Medical Records,”

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[Dkt. No. 5], which the Court construes as objections to the R&R (“Objections”)1; and

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(4) the remaining record, and has made a de novo determination.

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Petitioner’s request for lodging of medical records, (Objections at 3), is DENIED, as his
allegations fail to show that he is entitled to nearly two decades of equitable tolling under Bills v.
Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010). (See R&R at 4-5; see generally Objections); cf.
Dunsmore v. Paramo, 2014 WL 321068, at *1 n.1 (S.D. Cal. Jan. 29, 2014) (“‘A judge may, for good
cause, authorize a party to conduct discovery . . . .’ A habeas petitioner demonstrates ‘good
cause’ . . . when he or she states specific allegations that, if the facts are fully developed, would
establish that he is entitled to relief.” (internal citations omitted)).

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Petitioner’s Objections generally reiterate arguments made in the Petition, and

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lack merit for the reasons set forth in the Report and Recommendation. There is one

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issue, however, that warrants brief discussion here.
Petitioner claims that he is entitled to equitable tolling because his “mental

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illness is beyond his control and rendered him unable to pursue his legal rights during

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the relevant time period.” (Objections at 1.) He further states that because of his

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depression and anxiety attacks, he “could not stay on task and did not have an

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inclination to be able to appreciate his legal rights and act[] upon them.” (Objections

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at 3.) However, such general and conclusory descriptions of mental illness are

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insufficient to toll the limitations period for nearly two decades. (See R&R at 3, 4-5);

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see also Taylor v. Knowles, 2009 WL 688615, at *5 (E.D. Cal. Mar. 13, 2009) (“There

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is no question that petitioner suffers from serious symptoms, such as . . . severe

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depression and anxiety. . . . But there is no explanation of how [petitioner’s]

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symptoms relate to the delay in this action.”); Stanfield v. Allison, 2011 WL 1253893,

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at *3 (E.D.Cal. Mar.31, 2011) (finding that “vague and conclusory” allegations

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regarding the petitioner’s asserted mental limitations were insufficient to warrant

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equitable tolling). As such, the Petition remains untimely.

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Accordingly, IT IS ORDERED THAT:

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1.

The Report and Recommendation is approved and accepted;

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2.

Judgment be entered denying the Petition and dismissing this action with

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prejudice; and

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3.

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Additionally, for the reasons stated in the Report and Recommendation, the

The Clerk serve copies of this Order on the parties.

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Court finds that Petitioner has not made a substantial showing of the denial of a

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constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v.

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Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of

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appealability.

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DATED: February 2, 2017
HON. OTIS D. WRIGHT II
UNITED STATES DISTRICT JUDGE

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