notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 1 served concurrently with motion for summary judgment
How later courts described this case
- notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 1 served concurrently with motion for summary judgment
Written by the judges who cited it.
The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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7 MARCEL DOUGLAS FORD, Case No. 24-cv-05231-JST
8 Plaintiff,
ORDER OF SERVICE
v.
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10 ALANIS, et al.,
Defendants.
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13 Plaintiff, an incarcerated person currently housed at Mule Creek State Prison, has filed a
14 pro se action pursuant to 42 U.S.C. § 1983, regarding conditions of confinement at Pelican Bay
15 State Prison (“PBSP”), where he was formerly housed. His amended complaint (ECF No. 12) is
16 now before the Court for review pursuant to 28 U.S.C. § 1915A.
17 DISCUSSION
18 A. Standard of Review
19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks
20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims
22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek
23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),
24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d
25 989, 993 (9th Cir. 2020).
26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not
1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned,
3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).
4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a
5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id.
6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:
7 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that
8 the alleged violation was committed by a person acting under the color of state law. See West v.
9 Atkins, 487 U.S. 42, 48 (1988).
10 B. Procedural Background
11 The initial complaint named the State of California as defendant and alleged that Plaintiff
12 was forced to live in the following unsafe conditions while housed at Pelican Bay State Prison: a
13 cell that had no heat or air with large cracks in the wall from which water would pour down when
14 it rained; dark black water coming from the faucet that caused Plaintiff to suffer headaches,
15 stomachaches and diarrhea; and a broken front window in the cell and shards of glass everywhere.
16 The initial complaint sought monetary damages. ECF No. 1. The Court dismissed the complaint
17 because claims for monetary relief against the State of California are barred by the Eleventh
18 Amendment; no Eighth Amendment claim was stated because there was no allegation that any
19 prison official possessed a sufficiently capable state of mind; and the complaint failed to identify
20 the specific individuals that denied Plaintiff humane conditions of confinement. The Court
21 granted Plaintiff leave to file an amended complaint. ECF No. 11.
22 C. Amended Complaint1
23 The amended complaint names as defendants Pelican Bay State Prison (“PBSP”) officers
24 Alanis, Ford, Goodwin, and Hendrix.2 The amended complaint makes the following allegations.
25 While Plaintiff was housed in PBSP’s administrative segregation unit (“Ad-Seg”), defendant
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1 Plaintiff’s handwriting is hard to read. The Court summarizes the amended complaint to the best
1 Alanis moved Plaintiff from a cell intended for temporary housing to a cell intended for permanent
2 housing. Plaintiff addressed all of his issues with defendant Alanis within 24 to 72 hours but was
3 told that the unit was at a standstill, all other cells were full, and being housed in a different cell
4 was out of the question. Plaintiff’s cell had no heat; there were shards of broken glass covering
5 the cell floor; the ceiling roof leaked and water poured down the cell walls and flooded Plaintiff
6 out each time it rained; and the cell’s faucets produced cold dark brown water mixed with ash. All
7 four officers were aware that Plaintiff’s living conditions were unsafe and unhealthy, and that he
8 had to endure these conditions during a wet winter season. Defendant Alanis made a phone call
9 requesting better housing, but this failed, which left Plaintiff helpless while he had to endure the
10 unconstitutional living conditions. The amended complaint requests $16,000 in compensatory
11 damages. See generally ECF No. 12.
12 Liberally construed, the allegation that Plaintiff was forced to live in a cell that lacked heat;
13 had shards of broken glass on the floor; had a leaking ceiling; and had faucets that produced dirty
14 ashy water states an Eighth Amendment claim for unconstitutional conditions of confinement.
15 The conditions under which an incarcerated person is confined are subject to scrutiny under the
16 Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). The Eighth Amendment
17 imposes duties on prison officials to provides incarcerated persons with the basic necessities of
18 life such as food, clothing, shelter, sanitation, medical care and personal safety. See Farmer v.
19 Brennan, 511 U.S. 825, 832 (1994). A prison official may be held liable under the Eighth
20 Amendment for denying humane conditions of confinement if he knows that the inmate face a
21 substantial risk of serious harm and disregards that risk by failing to take reasonable measures to
22 abate it. Farmer, 511 U.S. at 847.
23 CONCLUSION
24 For the foregoing reasons, the Court ORDERS as follows.
25 1. The following defendant(s) shall be served: Pelican Bay State Prison officers
26 Alanis, Ford, Goodwin, and Hendrix.
27 2. Service on the listed defendant(s) shall proceed under the California Department of
1 in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the
2 CDCR via email at CDCR_OLA_Service_of_Process@cdcr.ca.gov the following documents: the
3 operative complaint (ECF No. 12), this order of service, a CDCR Report of E-Service Waiver
4 form and a summons. The Clerk also shall serve a copy of this order on the Plaintiff.
5 No later than 40 days after service of this order via email on the CDCR, the CDCR shall
6 provide the court a completed CDCR Report of E-Service Waiver advising the court which
7 defendant(s) listed in this order will be waiving service of process without the need for service by
8 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or
9 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service
10 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court
11 a waiver of service of process for the defendant(s) who are waiving service.
12 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each
13 defendant who has not waived service according to the CDCR Report of E-Service Waiver a
14 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies
15 of this order, the summons, and the operative complaint for service upon each defendant who has
16 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E-
17 Service Waiver.
18 3. As detailed above, the complaint states a cognizable Eighth Amendment claim
19 against Pelican Bay State Prison officers Alanis, Ford, Goodwin, and Hendrix.
20 4. In order to expedite the resolution of this case, the Court orders as follows:
21 a. No later than 91 days from the date this order is filed, Defendants must file
22 and serve a motion for summary judgment or other dispositive motion. If Defendants are of the
23 opinion that this case cannot be resolved by summary judgment, Defendants must so inform the
24 Court prior to the date the motion is due. A motion for summary judgment also must be
25 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what
26 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir.
27 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be
1 served concurrently with motion for summary judgment).3
2 b. Plaintiff’s opposition to the summary judgment or other dispositive motion
3 must be filed with the Court and served upon Defendants no later than 28 days from the date the
4 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment
5 provided later in this order as he prepares his opposition to any motion for summary judgment.
6 Defendants shall file a reply brief no later than 14 days after the date the opposition is filed. The
7 motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on
8 the motion.
9 5. Plaintiff is advised that a motion for summary judgment under Rule 56 of the
10 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must
11 do in order to oppose a motion for summary judgment. Generally, summary judgment must be
12 granted when there is no genuine issue of material fact – that is, if there is no real dispute about
13 any fact that would affect the result of your case, the party who asked for summary judgment is
14 entitled to judgment as a matter of law, which will end your case. When a party you are suing
15 makes a motion for summary judgment that is properly supported by declarations (or other sworn
16 testimony), you cannot simply rely on what your complaint says. Instead, you must set out
17 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents,
18 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and
19 documents and show that there is a genuine issue of material fact for trial. If you do not submit
20 your own evidence in opposition, summary judgment, if appropriate, may be entered against you.
21 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v.
22 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does
23 not excuse Defendants’ obligation to serve said notice again concurrently with a motion for
24 summary judgment. Woods, 684 F.3d at 939).
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3 If Defendants assert that Plaintiff failed to exhaust his available administrative remedies as
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required by 42 U.S.C. § 1997e(a), Defendant must raise such argument in a motion for summary
judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014)
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(en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that
1 6. All communications by Plaintiff with the Court must be served on Defendants’
2 || counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard
3 any document which a party files but fails to send a copy of to his opponent. Until Defendants’
4 || counsel has been designated, Plaintiff may mail a true copy of the document directly to
5 Defendants but once Defendants are represented by counsel, all documents must be mailed to
6 || counsel rather than directly to Defendants.
7 7. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.
8 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required
9 || before the parties may conduct discovery.
10 8. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the
11 Court informed of any change of address and must comply with the Court’s orders in a timely
12 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant
5 13 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every
14 || pending case every time he is moved to a new facility.
3 15 9. Any motion for an extension of time must be filed no later than the deadline sought
16 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that
3 17 he must include the case name and case number for this case on any document he submits to the
18 || Court for consideration in this case.
19 IT IS SO ORDERED.
20 || Dated: May 12, 2025 . .
71 JON S. TIGAR
22 ited States District Judge
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