Farley v. Virga et al

Filing 45

ORDER signed by Magistrate Judge Kendall J. Newman on 05/15/14 ordering that no further orders will issue regarding issues raised in plaintiff's pleadings filed 3/31/14 36 and 4/11/14 38 . (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM D. FARLEY,

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No. 2: 13-1751 KJN P

Plaintiff,

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v.

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T. VIRGA, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. This action is proceeding on the amended complaint filed November 13,

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2013. (ECF No. 11.) All defendants are located at California State Prison-Sacramento (“CSP-

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Sac”). Plaintiff is now housed at California State Prison-Corcoran (“Corcoran”).

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On March 31, 2014, plaintiff filed a “motion for modification of the case.” (ECF No. 36.)

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In this motion, plaintiff alleged that Dr. Gill took his wheelchair away which made it unable for

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plaintiff to get his Keyhea medications, food, drink, etc. Plaintiff also alleged that he did not have

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access to his legal property because he was on suicide watch. Plaintiff alleged that the stress of

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this case, not being able to get medical treatment, not being able to get legal representation and

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his deteriorating mental health became too much for him to handle. On April 11, 2014, plaintiff

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filed a letter containing allegations similar to those contained in his March 31, 2014 motion.

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(ECF No. 38.)
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Because no defendants are located at Corcoran, on April 28, 2014, the court directed the

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Supervising Deputy Attorney General to file a status report addressing the following issues:

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1) whether plaintiff’s wheelchair was improperly confiscated; 2) whether plaintiff was able to

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obtain medication, food, drink, etc.; 3) whether plaintiff had access to his legal property; and

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4) the reason plaintiff was placed on suicide watch.

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On May 12, 2014, the Supervising Deputy Attorney General filed a status report in

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response to the April 28, 2014 order. The status report states that according to Corcoran Chief

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Physician Dr. McCabe, since May 2013 plaintiff has reported that he is unable to move or feel his

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entire right leg. Plaintiff has a diagnosis of lumbar radiculopathy, which can cause radicular pain

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in the legs as a result of compression or inflammation of a spinal nerve. To reach this conclusion,

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plaintiff underwent extensive testing including nerve conduction velocity and electromyogram

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tests on January 13 and 17, 2014. The motor nerve conduction studies were all within normal

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range. CT scans of plaintiff’s spine have not yielded any acute findings. A lumbar MRI revealed

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spondylolisthesis (a condition that occurs as a consequence of the general aging process when one

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vertebra slips forward over the one below it), with bilateral posterior disc bulges associated with

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annular tear at L4-L5 spine.

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The status report also states that plaintiff received physical therapy evaluations at

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Corcoran. When the therapist attempted to explain the results of plaintiff’s nerve conduction

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velocity and an electromyogram test result to him on March 14, 2014 and April 29, 2014, plaintiff

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misleadingly claimed he had never received diagnostic tests. The physical therapist reported that

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plaintiff’s alleged symptoms were atypical given his examination and findings that there is no

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atrophy to the muscles of the right leg and that plaintiff’s reflexes are all normal. The physical

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therapist noted that plaintiff did not put forth any effort during his evaluations and refused to

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participate, simply stating that he would remain in a “crisis bed” until he was given his

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wheelchair. And, the prison has video of plaintiff walking around when he arrived at Corcoran,

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which contradicts his claim about being unable to ambulate without a wheelchair.

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The status report states that no diagnostic studies, findings or reports of physical therapy
evaluations are consistent with plaintiff’s claim of degree of motor and sensory deficits. The
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status report states that there is currently no objective evidence indicating that plaintiff has a

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medical necessity for a wheelchair or any other assistive device.
Regarding plaintiff’s claim that he was unable to get his medications, food, water, etc., the

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status report states that Dr. Harris, Senior Psychologist, states that plaintiff is currently taking his

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medications. Plaintiff is eating sufficiently and drinking fluids. Plaintiff admitted to nursing staff

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that at one time he was not eating because he wanted a permanent wheelchair, surgery on his back

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and a change in medications. Plaintiff denies all suicide and homicidal thoughts and feelings

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unless it is related to not having his wheelchair. Dr. Harris discussed sending plaintiff to the

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Department of State Hospitals, but plaintiff admits that he does not want nor need mental health

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treatment and is using the Mental Health Crisis Bed (“MHCB”) as a manipulation to gain

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attention to his alleged wheelchair and medical issues. Plaintiff will likely be referred to a higher

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level of care (Enhanced Outpatient Program) once he is discharged from the MHCB.
Regarding plaintiff’s claim alleging inadequate access to his legal materials, the status

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report states that because plaintiff is on suicide watch, he is not allowed access to the prison’s law

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library or his legal property. Suicidal inmates are not allowed to have all of their possessions

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while in a MHCB in order to protect their safety and facilitate their therapy and treatment.

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Plaintiff has remained on suicide watch because he continues to threaten suicide since he does not

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have a wheelchair.

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As discussed above, no defendants are located at Corcoran. Therefore, the court would be

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required to invoke the All Writs Act were it to issues orders directed to prison officials at

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Corcoran. See 28 U.S.C. § 1651(a). Based on the information in the status report described

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above, the court finds that invocation of the All Writs Act regarding the issues raised in plaintiff’s

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pleadings filed March 31, 2014 and April 11, 2014 is not appropriate. Plaintiff may pursue his

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claims regarding conditions at Corcoran in a civil rights action filed in the Fresno Division of the

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United States District Court for the Eastern District of California.

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Accordingly, IT IS HEREBY ORDERED that no further orders will issue regarding the

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issues raised in plaintiff’s pleadings filed March 31, 2014 (ECF No. 36) and April 11, 2014 (ECF

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No. 38).

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Dated: May 15, 2014

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Far1751.ord(2)

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