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Moreland v. Virga

October 29, 2010

DESMOND MICHAEL MORELAND, PLAINTIFF,
v.
TIM VIRGA, WARDEN, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner/plaintiff is a state prisoner proceeding pro se. Although petitioner/plaintiff filed his complaint on a habeas petition form, it must be re-designated, for the reasons set forth below, as an action pursuant to 42 U.S.C. § 1983. Moreover, the court cannot rule at this time on whether or not plaintiff might be entitled to in forma pauperis status pursuant to 28 U.S.C. § 1915 for two reasons. The first reason is because petitioner/plaintiff has failed to file an in forma pauperis affidavit altogether or to pay the required filing fee. See 28 U.S.C. §§ 1914(a), 1915(a). He will be provided the opportunity either to submit the appropriate affidavit in support of a request to proceed in forma pauperis or to submit the appropriate filing fee. Two, there is a significant difference between the statutory filing fee for a civil rights action, which is $350.00, and the filing fee for the habeas petition plaintiff evidently believed he was filing as a petitioner, which is $5.00. Petitioner/plaintiff will be provided another opportunity to submit a fully completed application to proceed in forma pauperis, should he choose to proceed in this action or, of course, to pay the $350 filing fee in full. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Petitioner/plaintiff has consented to the jurisdiction of the undersigned. See signed consent form, filed on October 19, 2010, docket # 4.

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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).

This action must be re-designated as a civil rights action because plaintiff herein is challenging a condition of confinement and not the duration of his sentence:

Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action.

Muhammad v. Close, 540 U.S.749, 750, 124 S.Ct. 1303, 1304 (2004) (per curiam).

Within his putative petition, petitioner/plaintiff does not challenge the constitutionality of his underlying conviction or sentence, a particular parole decision or a prison disciplinary conviction; instead, he contends that his prison records do not reflect his correct identity and that prison officials are creating a serious threat to himself and prison security by not correcting the false identity under which he is incarcerated. Petition (hereafter, Complaint), pp. 4, 16, 37, 40-54. Petitioner (hereafter, plaintiff) contends there is a real threat to his safety because his actual criminal activities have not been accounted for by CDCR and he "is a well noted organized crime figure in both Los Angeles and Las Vegas." Id. at 41. His false identification subjects him to serious risk of harm from people in prison who know, or know of, his real identity. Id. at 46-47. Plaintiff also claims that prison investigators are fully aware that prison doctors have "intentionally diagnosed" plaintiff as "'delusional'" for the purpose of keeping him from being "a material witness" in the Nevada O.J. Simpson criminal trial. Id. at 5, 16, 37.*fn1

Specifically, plaintiff claims that in 2001, he was documented at Calipatria State Prison as a 32-year-old black first timer sentenced to a term of 32-years-to-life. Complaint, p. 22. Plaintiff, however, asserts that he is a "second timer" with a prior CDC number of H-11588. Id. at n. 6. In 2008, plaintiff alleges that his length of incarceration was noted as being life without possibility of parole. Id. at 22. Plaintiff goes into some detail as to different psychologists' assessment of his mental condition, noting there was some disagreement among them as to whether he was delusional or not and stating that his real life of having organized crime ties (being a crime boss), involvement with the Simpson criminal matter, education at Purdue University, selection in the 1988 supplemental National Football League Draft and service in the U.S. Army, should not result in his being considered possibly delusional just because his life is "'both amazing and bizarre when compared to life of doctors evaluating him...." Id. at 23-28. Plaintiff alleges he was involuntarily included in the CDCR MHSDS*fn2 and scheduled for involuntary transfer to a medical institution from which he unsuccessfully appealed. Id. at 24-26. After his medical transfer from Centinela to Folsom State Prison (FSP), he filed an appeal stating he has involuntarily included in the MHSDS program and had received no mental health treatment at FSP, although he avers that he is not delusional and needs no treatment. Id. at 26. Plaintiff notes that he was in administrative segregation (Ad Seg) at FSP for having beaten a cellmate with a broken broom handle after he caught the cellmate going through plaintiff's legal paperwork. Id. at 28, n. 13. Plaintiff's licensed clinical social worker at FSP, Ms. Michau, to whom he was assigned on July 24, 2009, was provided greater detail about his true identity than anyone else and, according to plaintiff, discovered on the internet that plaintiff's birthday was actually 2/3/67 and not 2/3/72. Id. at 27-28. She also evidently found his information about attending Purdue credible. Id. at 28.

Plaintiff then opened up about his true identity to the FSP Internal Investigative Services (ISU), Captain Johnson, Lieutenant Langford and Sergeant Packard, that he was incarcerated under an incorrect birthdate, false name and social security number, and criminal history background and that the information about him in his CDCR central file (C-file) is wrong. Complaint, pp. 28-29. Plaintiff credits Ms. Michau with saving his sanity and possibly his life. Id. at 30. In an emergency appeal dated September 2, 2009, plaintiff claimed to have direct information about an unsolved homicide and kidnapping, claiming his immediate family members were "'at risk of being murdered.'" Id. at 31.*fn3 Plaintiff's appeal was granted but he was only referred to FSP ISU and not the state police, who have jurisdiction over such a matter. Id. & n. 18. Plaintiff complained in a grievance that his incarceration under a false identity was causing his "'very serious mental illnesses....'" Id. at 32.

Plaintiff, having been transferred from FSP to California State Prison-Sacramento (CSP-Sac), was told by Lieutenant Langford of FSP ISU that plaintiff's issues had been difficult to contend with and involved matters "over his [Langford's] head," and should be brought before the courts. Complaint, p. 35. On January 8, 2009, Lt. Langford noted in a memorandum to the FSP associate warden that he believed there was sufficient reason to further review plaintiff's birthdate, social security number, etc., but plaintiff has not received any relief to date. Id. at 35-36, 59. Plaintiff primarily seeks declaratory and injunctive relief. Id., at 37-38.

Although plaintiff may be able to articulate colorable Eighth Amendment claims, he has failed to do so sufficiently herein. Moreover, his 127-page filing appears to violate Rule 8 of the Federal Rules of Civil Procedure. Fed. R. Civ. P 8 sets forth general rules of pleading in the federal courts. Complaints are required to set forth (1) the grounds upon which the court's jurisdiction rests, (2) a short and plain statement of the claim showing entitlement to relief; and (3) a demand for the relief plaintiff seeks. All that is required are sufficient allegations to put defendants fairly on notice of the claims against them. See Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102 ...


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