Rhodes v. Ford

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
KAVIN MAURICE RHODES,
Plaintiff,
v.
D. FORD,
Defendant.
Case No. 20-cv-03128-PJH
ORDER DENYING MOTION TO
CERTIFY ORDER FOR
INTERLOCUTORY APPEAL OR FOR
ENTRY OF FINAL JUDGMENT
Re: Dkt. No. 201
Before the court is plaintiff’s motion to certify this court’s summary judgment order
for interlocutory appeal, or in the alternative, for entry of final judgment.
Plaintiff Kavin Maurice Rhodes is represented by his counsel, Randall Edwards,
Molly Edgar, Raeshondra Dike, Michelle Abundis, and Kathryn Binder. Defendant D.
Ford appeared through his counsel, Rob Bonta, Marisa Kirschenbauer, Michael J. Quinn,
and Chase Goldstein. The matter is fully briefed and suitable for decision without oral
argument. Having read the parties’ papers and carefully considered their arguments and
the relevant legal authority, and good cause appearing, the court hereby rules as follows.
A. 	Procedural Background
This is a civil rights case brought by a state prisoner under 42 U.S.C. § 1983. His
claims arise from his detention at Pelican Bay State Prison (“PBSP”).
The court originally granted summary judgment on all of plaintiff’s claims, in an
order dated April 23, 2024. See Dkt. 140. Plaintiff appealed the order, and the Ninth
Circuit reversed. See Dkt. 155.
After remand, plaintiff sought leave to file a third amended complaint, which was
granted. See Dkt. 177, 181. The operative complaint asserted four causes of action
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against defendant Ford, one of which was dismissed pursuant to the parties’ stipulation.
See Dkt. 186. That left three causes of action in plaintiff’s operative complaint: (1)
unlawful retaliation in violation of the First Amendment, by the filing of a false rules
violation report (“RVR”) in retaliation for an inmate grievance, (2) unlawful retaliation in
violation of the First Amendment, by arranging to have plaintiff beaten by other inmates in
retaliation for an inmate grievance, and (3) violation of the Eighth Amendment by
arranging to have plaintiff beaten by other inmates. See Dkt. 182.
Defendant moved for summary judgment on claims (2) and (3). See Dkt. 193.
The court granted defendant’s motion for summary judgment on July 10, 2026. See Dkt.
200.
Plaintiff now seeks to certify the court’s July 10 order for interlocutory appeal under
28 U.S.C. § 1292(b), or in the alternative, for entry of final judgment under Federal Rule
of Civil Procedure 54(b).
B. 	Discussion
1. 	Motion for Interlocutory Appeal
a. 	Legal Standard
The rule allowing a party to seek certification to appeal an interlocutory order is a
departure from the normal rule that only final judgments are appealable, and therefore it
must be construed narrowly. James v. Price Stern Sloan, Inc.,283 F.3d 1064, 1067-68
n.6 (9th Cir.2002). A district court may certify an order for interlocutory review pursuant
to 28 U.S.C. § 1292(b) “only in exceptional situations in which allowing an interlocutory
appeal would avoid protracted and expensive litigation.” In re Cement Antitrust Litigation,
673 F.2d 1020, 1026 (9th Cir.1982) (emphasis added).
Interlocutory review is appropriate where the district court finds that the party has
established (1) the existence of a controlling question of law, (2) substantial grounds for
difference of opinion, and (3) that the party has shown that an immediate appeal may
materially advance the ultimate termination of the litigation. In re Cement, 673 F.2d at
1026 (citing 28 U.S.C. § 1292(b)).
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b. 	Analysis
As mentioned above, before summary judgment was granted, plaintiff’s operative
complaint asserted three causes of action: (1) unlawful retaliation in violation of the First
Amendment, by the filing of a false rules violation report (“RVR”) on January 16, 2020, in
retaliation for an inmate grievance, (2) unlawful retaliation in violation of the First
Amendment, by arranging to have plaintiff beaten by other inmates on January 28, 2020
in retaliation for an inmate grievance, and (3) violation of the Eighth Amendment by the
same January 28 incident, arranging to have plaintiff beaten by other inmates. See Dkt.
182.
With respect to the Eighth Amendment violation, plaintiff alleged in his complaint
that “Ford’s actions involved excessive force.” See Dkt. 182, ¶ 55. The same beating is
also the basis of the First Amendment violation set forth in the second cause of action.
There is no allegation that Ford himself physically engaged in excessive force against
plaintiff. Thus, Ford’s liability must be based upon his responsibility for the actions of
others. The operative complaint alleges that those actions were comprised of the
following:
(1) Ford “conspiring to have prison inmates attack and brutally beat Plaintiff” (¶ 1),
(2) “Ford had conspired with these inmates to attack” plaintiff (¶ 9),
(3) “Ford violated Rhodes’s rights . . . by conspiring to retaliate against” him (¶ 12),
(4) “Complaint alleges violations of Rhodes’s rights . . . and a related conspiracy to
violate those rights” (¶ 14),
(5) “Ford conspired with the inmates, either directly or through an intermediary, to
attack Rhodes” (¶ 38),
(6) Ford “took adverse action against” plaintiff “by arranging to have Rhodes
beaten by other inmates” (¶ 50), and
(7) Ford “took adverse action against” plaintiff “by arranging to have Rhodes
beaten by other inmates” (¶ 54),
As shown above, the operative third amended complaint consistently and
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repeatedly characterizes Ford’s conduct as either “conspiring” or “arranging.” See Dkt.
182.
To be clear, as mentioned above, plaintiff’s operative complaint initially pled a
cause of action for conspiracy under 42 U.SC. § 1985, and then plaintiff stipulated to
dismiss the conspiracy claim without prejudice. However, the stipulation expressly states
that “this voluntary dismissal does not impact or change the factual allegations in any
other paragraphs of the Third Amended Complaint or Plaintiff’s three remaining claims for
relief pursuant to 42 U.S.C. § 1983.” See Dkt. 186 at 2; see also id. (“this voluntary
dismissal shall only apply to plaintiff’s fourth claim for relief, stated in paragraphs 58
through 67 of the third amended complaint”).
When filing the third amended complaint, plaintiff could have chosen to limit his
conspiracy-related allegations to the single asserted claim for conspiracy under § 1985.
Similarly, when plaintiff dismissed the § 1985 cause of action, he could have stricken the
language alleging a conspiracy or arrangement. Both times, he chose not to. Thus,
when defendant filed his summary judgment motion (Dkt. 193), he justifiably challenged
allegations that he either conspired with inmates or arranged for those inmates to attack
plaintiff.
Plaintiff now argues that the “controlling question of law” for appeal is whether his
retaliation claim “requires showing of the existence of a conspiracy, or whether a joint
showing of direction or joint action is sufficient.” See Dkt. 201 at 9. Plaintiff argues that
the court imposed a conspiracy requirement even though none is required by the Ninth
Circuit. This is incorrect. To the extent that plaintiff was confused about the court’s prior
ruling, the court herein clarifies that ruling.
The court evaluated whether there was evidence of a conspiracy solely because
plaintiff alleged in his complaint that a conspiracy was the wrongful conduct engaged in
by Ford. However, the court also directly cited the controlling Ninth Circuit authority,
holding that a defendant can be liable either through direct involvement or by “setting in
motion a series of acts by others which the actor knows or reasonably should know would
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cause others to inflict the constitutional injury.” See Dkt. 200 at 3-4 (citing Chaudhry v.
Aragon, 68 F.4th 1161, 1169 (9th Cir. 2023)).
Applying the Chaudhry standard, the court considered not only whether Ford
conspired to inflict the injury, but also whether the evidence supported plaintiff’s
allegation that he “arranged” for the attack, irrespective of whether there was a
conspiracy.
Ford and the inmate attackers all declared under oath that there was no
arrangement, express or otherwise, between them. See Dkt. 193-3 (Ford decl.) (“I did
not arrange the January 28, 2020, altercation, nor was I involved with it in any way. In
fact, I never interacted with inmates Bridgewater, Davis, Anderson, and Williams, and I
do not recall who they are. I also did not act through any intermediaries to arrange the
altercation.”); Dkt. 193-4 (Anderson decl.) (“The January 28, 2020 altercation with
Rhodes was not arranged by Ford”); Dkt. 193-5 (Davis decl.) (“I never went to the PBSP
Facility A law library while I was housed there, and I never had any interactions with Ford.
Ford did not contact me to arrange the January 28, 2020 altercation with Rhodes, and no
person contacted me on Ford’s behalf.”); Dkt. 193-6 (Bridgewater decl.) (“I never went to
the PBSP law library while I was housed there, and I never had any interactions with
Ford. Ford did not contact me to arrange the January 28, 2020 altercation with Rhodes,
and no person contacted me on Ford’s behalf”); Dkt. 193-7 (Williams decl.) (“Ford did not
contact me to arrange the January 28, 2020 altercation with inmate Rhodes. In fact, I
have never spoken to Ford or had any other interaction with him.”).
Plaintiff testified to the contrary. On a motion to dismiss, plaintiff’s allegations are
taken as true; but on summary judgment, even though the evidence is viewed in a light
more favorable to him, he still has to produce some evidence. The only direct evidence
that plaintiff produced was his own testimony that, immediately before the attack, Ford
made a gesture and pointed at him. Frankly, given that plaintiff has never described the
“gesture” other than the pointing, the court was left to consider whether the pointing was
sufficient evidence of an arrangement, given that the circumstantial evidence was
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insufficiently tied to an arrangement.
Additionally, plaintiff in this latest motion reframes Ford’s conduct not as conspiring
or arranging the attack, but as directing the attack. To no avail.
Chaudhry holds that liability may be premised on a defendant directing others to
take adverse action, engaging in concerted action with others, or engaging in a
conspiracy. Whether it is directing others or engaging in a conspiracy or arranging an
attack, they all require some evidence of collusion, agreement, coordination, connection,
or interaction—in other words some opportunity for Ford or someone acting on his behalf
to somehow get word to the inmates of the intended target and obtain their agreement to
attack the target.
To the extent that plaintiff’s “directing” argument is based on the gesture/pointing
by Ford, there is no explanation as to how the inmates would have understood the import
of the undescribed gesture/pointing unless an agreement had been entered or
instructions conveyed prior to the attack occurring. There was no evidence of any
opportunity for Ford as a former assistant library technician to have had any contact with
the inmates during the relevant time period. Nor is there a hint of any evidence that
another civilian employee or correctional officer in fact made such contact with the
attackers on his behalf. It is little more than speculation that does not rise to the level of
creating a material dispute of fact such as in Sierra v. Thompson, as cited in the court’s
summary judgment order. See Dkt. 200 at 8-9 (citing Sierra, 2021 WL 3864590 (E.D.
Cal. Aug. 30, 2021)).
Based on the above, the court concludes that plaintiff has not demonstrated the
existence of a controlling question of law or substantial grounds for difference of opinion
about that controlling question. Rather, what remains is the straightforward question of
whether the evidence was sufficient to raise a triable issue of fact, which is inherently
factual and not legal. The motion to certify the court’s summary judgment order for
interlocutory appeal is DENIED.
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2. 	Motion for Entry of Final Judgment
a. 	Legal Standard
Rule 54(b) states that the court “may direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the court expressly determines that there
is no just reason for delay.” Fed. R. Civ. P. 54(b).
b. 	Analysis
As an initial matter, the court points out that this case has already been pending
for over six years. The court is concerned about fading memories on the parts of plaintiff
and his witnesses as well as defendant and his witnesses, and particularly for the
defendant, who has been retired for over four years. See Dkt. 193-3, ¶ 2.
The court also notes that the court filed its first summary judgment order on April
23, 2024, and it was not reversed until July 18, 2025 – almost 15 months later.
If this trial were scheduled much later into the future, then it might have made
sense to allow plaintiff to appeal now; but since it is scheduled for October, there is
insufficient reason to delay further. The court has a strong interest in resolving cases that
have been pending on its docket for as long as this case has, and for those reasons, the
court DENIES plaintiff’s alternative request for entry of final judgment under Rule 54(b).
C. 	Conclusion
For the foregoing reasons, plaintiff’s motion to certify the court’s summary
judgment order for interlocutory appeal, or the alternative, for entry of final judgment (Dkt.
201) is DENIED. The hearing set for August 20, 2026, is VACATED.
IT IS SO ORDERED.
Dated: August 18, 2026
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge
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