1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARK WAYNE RATHBUN, Case No. 26-cv-01080-TLT
8 Plaintiff, ORDER OF SERVICE v. 9
10 EDWARD BORLA, et al., Defendants. 11
12 13 Plaintiff, a prisoner at Correctional Training Facility (CTF), filed a pro se civil rights 14 complaint under 42 U.S.C. § 1983. The case was related to 25-cv-02820-TLT, McKenzie v. Borla, 15 which raises similar or identical allegations, and which was set as a bellwether case. The 16 complaint (Dkt. No. 1) is before the Court for screening pursuant to 28 U.S.C. § 1915A. Plaintiff 17 will be granted leave to proceed in forma pauperis by separate order. For the reasons stated below, 18 the complaint is ordered served on defendants Borla and Macomber. 19 DISCUSSION 20 A. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 22 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 23 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 24 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 25 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 26 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 27 989, 993 (9th Cir. 2020). 1 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 2 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 3 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 4 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 5 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 6 do. . .. Factual allegations must be enough to raise a right to relief above the speculative level.” 7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 8 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. All or part 9 of a complaint filed by a prisoner may be dismissed sua sponte if the prisoner’s claims lack an 10 arguable basis in either law or in fact. 11 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 12 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 13 alleged violation was committed by a person acting under the color of state law. See West v. 14 Atkins, 487 U.S. 42, 48 (1988). 15 If a court dismisses a complaint for failure to state a claim, it should “freely give 16 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has discretion to 17 deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, 18 repeated failure to cure deficiencies by amendment previously allowed undue prejudice to the 19 opposing party by virtue of allowance of the amendment, [and] futility of amendment.” 20 Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). 21 B. Plaintiff’s Claims 22 Plaintiff names the CTF Warden Edward Borla and the Secretary of the California 23 Department of Corrections and Rehabilitation (CDCR) Jefferey Macomber as defendants and 24 alleges that they have violated his Eighth Amendment rights by housing him in an 25 unconstitutionally small double cell with another prisoner since January 23, 2014. He alleges his 26 cell has only 19 square feet of unencumbered space, or only 9.5 square feet per prisoner, which 27 violates CDCR’s guidelines and the Constitution. He alleges prisoners at CTF have been double- 1 built to be double cells. 2 Plaintiff seeks damages. 3 C. Analysis 4 While the Constitution does not mandate comfortable prisons, it does require that prisoners 5 have the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 6 (1981). “[T]he Eighth Amendment must draw its meaning from the evolving standards of decency 7 that mark the progress of a maturing society.” Id. at 346 (internal quotation marks omitted). 8 Liberally construed, plaintiff has stated an Eighth Amendment claim against defendants Borla and 9 Macomber for inadequate living space. 10 CONCLUSION 11 1. Plaintiff has stated a cognizable Eighth Amendment claim against defendants Borla 12 and Macomber. 13 2. The Court ORDERS that service on the following defendants shall proceed under 14 the California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for 15 civil rights cases from prisoners in the CDCR’s custody: 16 a. Edward Borla, Warden of CTF 17 b. Jefferey Macomber, Secretary of CDCR 18 In accordance with the program, the Clerk is directed to serve on the CDCR via email the 19 following documents: the operative complaint (Dkt. No. 1), this Order of Service, a CDCR Report 20 of E-Service Waiver form, and a summons. The Clerk also shall serve a copy of this order on the 21 plaintiff. 22 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 23 provide the court a completed CDCR Report of E-Service Waiver advising the court which 24 defendant(s) listed in this order will be waiving service of process without the need for service by 25 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 26 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 27 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 1 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 2 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 3 USM-285 Form. The Clerk shall provide to the USMS the completed USM-285 forms and copies 4 of this order, the summons, and the operative complaint for service upon each defendant who has 5 not waived service. The Clerk also shall provide the USMS a copy of the CDCR Report of E- 6 Service Waiver. 7 3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 8 requires defendants to cooperate in saving unnecessary costs of service of the summons and 9 complaint.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARK WAYNE RATHBUN, Case No. 26-cv-01080-TLT
8 Plaintiff, ORDER OF SERVICE v. 9
10 EDWARD BORLA, et al., Defendants. 11
12 13 Plaintiff, a prisoner at Correctional Training Facility (CTF), filed a pro se civil rights 14 complaint under 42 U.S.C. § 1983. The case was related to 25-cv-02820-TLT, McKenzie v. Borla, 15 which raises similar or identical allegations, and which was set as a bellwether case. The 16 complaint (Dkt. No. 1) is before the Court for screening pursuant to 28 U.S.C. § 1915A. Plaintiff 17 will be granted leave to proceed in forma pauperis by separate order. For the reasons stated below, 18 the complaint is ordered served on defendants Borla and Macomber. 19 DISCUSSION 20 A. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 22 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 23 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 24 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 25 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 26 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 27 989, 993 (9th Cir. 2020). 1 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 2 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 3 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 4 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 5 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 6 do. . .. Factual allegations must be enough to raise a right to relief above the speculative level.” 7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 8 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. All or part 9 of a complaint filed by a prisoner may be dismissed sua sponte if the prisoner’s claims lack an 10 arguable basis in either law or in fact. 11 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 12 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 13 alleged violation was committed by a person acting under the color of state law. See West v. 14 Atkins, 487 U.S. 42, 48 (1988). 15 If a court dismisses a complaint for failure to state a claim, it should “freely give 16 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has discretion to 17 deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, 18 repeated failure to cure deficiencies by amendment previously allowed undue prejudice to the 19 opposing party by virtue of allowance of the amendment, [and] futility of amendment.” 20 Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). 21 B. Plaintiff’s Claims 22 Plaintiff names the CTF Warden Edward Borla and the Secretary of the California 23 Department of Corrections and Rehabilitation (CDCR) Jefferey Macomber as defendants and 24 alleges that they have violated his Eighth Amendment rights by housing him in an 25 unconstitutionally small double cell with another prisoner since January 23, 2014. He alleges his 26 cell has only 19 square feet of unencumbered space, or only 9.5 square feet per prisoner, which 27 violates CDCR’s guidelines and the Constitution. He alleges prisoners at CTF have been double- 1 built to be double cells. 2 Plaintiff seeks damages. 3 C. Analysis 4 While the Constitution does not mandate comfortable prisons, it does require that prisoners 5 have the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 6 (1981). “[T]he Eighth Amendment must draw its meaning from the evolving standards of decency 7 that mark the progress of a maturing society.” Id. at 346 (internal quotation marks omitted). 8 Liberally construed, plaintiff has stated an Eighth Amendment claim against defendants Borla and 9 Macomber for inadequate living space. 10 CONCLUSION 11 1. Plaintiff has stated a cognizable Eighth Amendment claim against defendants Borla 12 and Macomber. 13 2. The Court ORDERS that service on the following defendants shall proceed under 14 the California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for 15 civil rights cases from prisoners in the CDCR’s custody: 16 a. Edward Borla, Warden of CTF 17 b. Jefferey Macomber, Secretary of CDCR 18 In accordance with the program, the Clerk is directed to serve on the CDCR via email the 19 following documents: the operative complaint (Dkt. No. 1), this Order of Service, a CDCR Report 20 of E-Service Waiver form, and a summons. The Clerk also shall serve a copy of this order on the 21 plaintiff. 22 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 23 provide the court a completed CDCR Report of E-Service Waiver advising the court which 24 defendant(s) listed in this order will be waiving service of process without the need for service by 25 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 26 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 27 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 1 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 2 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 3 USM-285 Form. The Clerk shall provide to the USMS the completed USM-285 forms and copies 4 of this order, the summons, and the operative complaint for service upon each defendant who has 5 not waived service. The Clerk also shall provide the USMS a copy of the CDCR Report of E- 6 Service Waiver. 7 3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 8 requires defendants to cooperate in saving unnecessary costs of service of the summons and 9 complaint. If service is waived, this action will proceed as if defendants had been served on the 10 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), defendants will not be 11 required to serve and file an answer before sixty (60) days from the date on which the CDCR 12 provides a copy of the CDCR Report of E-Service Waiver to the California Attorney General’s 13 Office. (This allows a longer time to respond than would be required if formal service of 14 summons is necessary.) If defendants have not waived service and have instead been served by 15 the USMS, then defendants shall serve and file an answer within twenty-one (21) days after being 16 served with the summons and complaint. 17 4. Defendants shall answer the complaint in accordance with the Federal Rules of 18 Civil Procedure. 19 5. Further briefing and discovery are currently stayed while the bellwether case, 25- 20 cv-02820-TLT, McKenzie v. Borla, proceeds. See Dkt. No. 14. 21 6. All communications by plaintiff with the Court must be served on defendants or 22 their counsel, once counsel has been designated, by mailing a true copy of the document to them. 23 7. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 24 informed of any change of address and must comply with the Court’s orders in a timely fashion. 25 Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 26 while an action is pending must promptly file a notice of change of address specifying the new 27 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 1 the Court fails to receive within sixty days of this return a written communication from the pro se 2 || party indicating a current address. See L.R. 3-11(b). 3 10. Upona showing of good cause, requests for a reasonable extension of time will be 4 || granted provided they are filed on or before the deadline they seek to extend. 5 IT IS SO ORDERED. 6 Dated: June 29, 2026 7
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