Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Desmond Michael v. Tim Virga

February 3, 2011


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


By Order filed on October 29, 2010, plaintiff's filing was re-designated as one brought pursuant to 42 U.S.C. § 1983, and dismissed with leave to amend. In addition, plaintiff, a state prisoner proceeding pro se, was directed either to submit a completed in forma pauperis application or to pay the filing fee in full. See 28 U.S.C. §1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). In the prior order, it was noted that plaintiff had consented to the jurisdiction of the undersigned. See consent form, filed on October 19, 2010, docket # 4.

Plaintiff has filed an amended complaint and has now submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments shall be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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).

Plaintiff filed a first amended complaint on November 18, 2010 (docket # 6), almost immediately followed by a further amended complaint on November 23, 2010 (docket # 10). Because the further amended complaint supersedes the first, the court will designate the amended complaint at docket # 10 as the second amended complaint and screen that one. Plaintiff's second amended complaint consists of 150 pages with allegations naming forty defendants employed at some three different prisons. The gravamen of his allegations consists of a claim that his personal safety has been put at risk for having been wrongly found in need of mental health care; that his due process rights have been violated because he has been the victim of erroneous prison record-keeping; and that prison officials have failed to protect him by not incarcerating him under the correct name, thereby, subjecting him to cruel and unusual punishment. Second Amended Complaint, pp. 2-3.

As he did in his original complaint, plaintiff again recounts what he maintains are the actual facts of his life in contrast to his present identity in CDCR records on the sentence he is presently serving: plaintiff claims that his prison records incorrectly add a "Jr." to his name; that his social security number is incorrect and his birthdate is wrongly recorded as 2/3/72 rather than the accurate date of 2/3/67; that he has been previously incarcerated under another CDC[R] inmate number in state prison although his present sentence is noted in his record as his initial state prison conviction/sentence; that he in fact attended Purdue University, has a record of military service, played college football and was drafted by a professional Canadian football team and was a part of the 1988 supplemental National Football League Draft; that he was to be a material witness in a criminal trial involving O.J. Simpson, none of which is identified with his history in records maintained by CDCR. SAC, pp. 25-27, 31, 45. Plaintiff appears to be most distressed that prison officials do not acknowledge his alleged notorious background as a criminal kingpin from Los Angeles and in Las Vegas, Nevada, going so far as to assert that he has confessed to an unsolved murder simply to be recognized as who he actually is, all to no avail. Id. at 25-26, 49.

Plaintiff expresses a great deal of frustration with regard to different psychologists' and psychiatrists' assessments of his mental condition; he contends despite showing some of them documentation to prove his identity, he has been diagnosed as delusional simply for identifying himself correctly by at least seven doctors. SAC, pp. 29-30, 37. He claims his doubts about his sanity, brought about by doctors who have found him to be delusional or bipolar because of his insistence upon who he actually is drove him into violent conflicts with his cellmate which resulted in his placement in administrative segregation (Ad Seg) with single cell status at CSP-Centinella. Id. at 31. Plaintiff alleges he was involuntarily included in the CDCR MHSDS*fn1 and scheduled for involuntary transfer to a medical institution from which he unsuccessfully appealed. Id. at 32-36.

After his medical transfer from Centinela to Folsom State Prison (FSP), he filed an appeal stating he had been involuntarily included in the MHSDS program at CSP-Cen, but also complaining that he had received no mental health treatment at FSP. SAC, pp. 38-39. Because he began to believe he was being intentionally misdiagnosed by the mental health department, he states that he made a cynical request for mental health treatment and a treatment plan or an explanation for lack of treatment so that he could eventually seek enforcement from the courts. Id. at 39-40. Plaintiff claims that at one point when he returned from the recreation yard to his FSP cell which he shared with a cellmate that a "feeling c[a]me over him" that his cellmate had to be looking through his legal property to help the mental health department continue the diagnosis of him as delusional. Id. at 40-41. While his cellmate slept that night, plaintiff attacked him with a broken broom handle beating him to the point of unconsciousness. Id. at 41.*fn2

Plaintiff's licensed clinical social worker at FSP, Ms. Michau, to whom he was assigned in July, 2009, while housed in Ad Seg for battery upon his cellmate with a weapon, concluded that plaintiff was suffering from depression and anxiety; she discovered on the internet, according to plaintiff, that plaintiff's birthday was actually 2/3/67 and not 2/3/72, and noted that only someone who had attended Purdue, as she had, would know some of the information he had about that institution. SAC, pp. 41-43. Plaintiff cried and felt very relieved that he finally had someone who believed him and believed that without her help he would likely have lost his mind and killed himself. Id. at 43-44.

Plaintiff then opened up about his true identity to the FSP Internal Investigative Services (ISU), defendants Lieutenant Langford and Sergeant Packard, in front of defendant Captain Johnson, apparently revealing facts as to his unprosecuted criminal activity that were as yet unknown. SAC, p. 44. He told them 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) was wrong. Id. at 45. Plaintiff was cautioned that if he was telling the truth he would have to go back to court for his records to be rectified and if he was not, he would receive a serious rules violation report (RVR) for lying and trying to manipulate staff. Id. at 46. Five days later, plaintiff claims that Ms. Michau noted that ISU had confirmed that plaintiff's birthdate and name were incorrect, that he had attended Purdue and was part of an NFL draft and that defendant Johnson said the investigation was in the hands of the ISU sergeant and lieutenant. Id. Clinician Michau, according to plaintiff, indicated that she had shared his history with colleagues so that he could receive an appropriate mental diagnosis. Id. at 47. After a subsequent interview with defendant Associate Warden Butler, wherein plaintiff claims defendant Butler told him that plaintiff's ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.