United States District Court, N.D. California
ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE
DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION;
INSTRUCTIONS TO CLERK
J. DAVILA UNITED STATES DISTRICT JUDGE
a state inmate at the California Health Care Facility, filed
the instant pro se civil rights action pursuant to
42 U.S.C. § 1983 against prison officials at Pelican Bay
State Prison (“PBSP”). Plaintiff’s motion
for leave to proceed in forma pauperis will be
addressed in a separate order.
Standard of Review
federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 28 U.S.C. § 1915A(a). In its review, the
court must identify any cognizable claims and dismiss any
claims that are frivolous, malicious, fail to state a claim
upon which relief may be granted or seek monetary relief from
a defendant who is immune from such relief. See id.
§ 1915A(b)(1), (2). Pro se pleadings must, however, be
liberally construed. See Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
claims that between June 28, 2015 and September 7, 2015,
while housed at PBSP’s Treatment Center under suicidal
watch, Defendants refused to feed him on numerous occasions.
(Compl. Attach. at 3.) Plaintiff claims that Defendants were
each personally involved, condoned, or oversaw the
“acts of not feeding” him because he had a milk
carton in his assigned cell which he refused to relinquish.
(Id.) Plaintiff claims that although he presented no
threat to Defendants, they refused him food as
“incentive or punishment.” (Id.)
Liberally construed, Plaintiff’s allegations are
sufficient to state a claim under the Eighth Amendment as a
serious deprivation of a basic necessity. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994); Johnson v.
Lewis, 217 F.3d 726, 732-733 (9th Cir. 2000).
reasons state above, the Court orders as follows:
Clerk of the Court shall mail a Notice of Lawsuit and Request
for Waiver of Service of Summons, two copies of the Waiver of
Service of Summons, a copy of the complaint, all attachments
thereto, and a copy of this order upon Defendants Sgt. D.
Brock, Sgt. Caraway, Sgt. J. Simpson; and Correctional
Officers S. Owen, and J. Simpson at Pelican Bay State Prison
(P.O. Box 7000, Crescent City, CA 95531). The Clerk shall
also mail a copy of this Order to Plaintiff.
Defendants are cautioned that Rule 4 of the Federal Rules of
Civil Procedure requires them to cooperate in saving
unnecessary costs of service of the summons and the
complaint. Pursuant to Rule 4, if Defendants, after being
notified of this action and asked by the Court, on behalf of
Plaintiff, to waive service of the summons, fail to do so,
they will be required to bear the cost of such service unless
good cause shown for their failure to sign and return the
waiver form. If service is waived, this action will proceed
as if Defendants had been served on the date that the waiver
is filed, except that pursuant to Rule 12(a)(1)(B),
Defendants will not be required to serve and file an answer
before sixty (60) days from the day on which
the request for waiver was sent. (This allows a longer time
to respond than would be required if formal service of
summons is necessary.) Defendants are asked to read the
statement set forth at the foot of the waiver form that more
completely describes the duties of the parties with regard to
waiver of service of the summons. If service is waived after
the date provided in the Notice but before Defendants have
been personally served, the Answer shall be due sixty (60)
days from the date on which the request for waiver was sent
or twenty (20) days from the date the waiver form is filed,
whichever is later.
later than ninety-one (91) days from the
date of this order, Defendants shall file a motion for
summary judgment or other dispositive motion with respect to
the claims in the complaint found to be cognizable above.
motion for summary judgment shall be supported by adequate
factual documentation and shall conform in all respects to
Rule 56 of the Federal Rules of Civil Procedure. Defendants
are advised that summary judgment cannot be granted, nor
qualified immunity found, if material facts are in dispute.
If any Defendant is of the opinion that this case cannot be