McKenzie v. Borla et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CHRISTOPHER BRYAN MCKENZIE,
Plaintiff,
v.
EDWARD BORLA, et al.,
Defendants.
Case No. 25-cv-02820-TLT
ORDER OF SERVICE
Plaintiff, a prisoner at Correctional Training Facility (CTF), filed a pro se civil rights
complaint under 42 U.S.C. § 1983. The complaint was dismissed with leave to amend. Plaintiff’s
First Amended Complaint (FAC) is before the Court for screening pursuant to 28 U.S.C. § 1915A.
For the reasons stated below, the FAC is ordered served on defendants Borla and Macomber.1
DISCUSSION
A. Standard of Review
A 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 28 U.S.C. § 1915A(b)(1),
(2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d
989, 993 (9th Cir. 2020).
1 At least seven other cases raising similar or identical claims have been related to plaintiff’s case.
After the cases have been screened, the Court will consider a motion by defendants to set a
bellwether case for the purpose of resolution of dispositive motions and, if necessary, trial.
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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not
necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do. . .. Factual allegations must be enough to raise a right to relief above the speculative level.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must
proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. All or part
of a complaint filed by a prisoner may be dismissed sua sponte if the prisoner’s claims lack an
arguable basis in either law or in fact.
To 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).
If a court dismisses a complaint for failure to state a claim, it should “freely give
leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has discretion to
deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendment previously allowed undue prejudice to the
opposing party by virtue of allowance of the amendment, [and] futility of amendment.”
Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008).
B. Plaintiff’s Claims
The FAC names the CTF Warden Edward Borla, the Secretary of the California
Department of Corrections and Rehabilitation (CDCR) Jefferey Macomber, and the California
Department of Corrections and Rehabilitation (CDCR) as defendants and alleges that defendants
have violated his Eighth Amendment rights by housing him in an unconstitutionally small double
cell with another prisoner since November 9, 2022. He alleges his cell has only 19 square feet of
unencumbered space, or only 9.5 square feet per prisoner, which violates CDCR’s guidelines and
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the Constitution. He alleges prisoners at CTF have been double-celled in certain North Yard
buildings since 2011 although the rooms in these buildings were not built to be double cells.
Plaintiff seeks damages.
C. Analysis
Defendant CDCR is dismissed as a defendant because it is an agency of the state and
therefore has Eleventh Amendment immunity from suit for damages.
While the Constitution does not mandate comfortable prisons, it does require that prisoners
have the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347
(1981). “[T]he Eighth Amendment must draw its meaning from the evolving standards of decency
that mark the progress of a maturing society.” Id. at 346 (internal quotation marks omitted).
Liberally construed, plaintiff has stated an Eighth Amendment claim against defendants Borla and
Macomber for inadequate living space.
CONCLUSION
1. Defendant CDCR is dismissed.
2. Plaintiff has stated a cognizable Eighth Amendment claim against defendants Borla
and Macomber.
3. The Court ORDERS that service on the following defendants shall proceed under
the California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for
civil rights cases from prisoners in the CDCR’s custody:
a. Edward Borla, Warden of CTF
b. Jefferey Macomber, Secretary of CDCR
In accordance with the program, the Clerk is directed to serve on the CDCR via email the
following documents: the operative complaint (Dkt. No. 23), this Order of Service, a CDCR
Report of E-Service Waiver form, and a summons. The Clerk also shall serve a copy of this order
on the plaintiff.
No later than 40 days after service of this order via email on the CDCR, the CDCR shall
provide the court a completed CDCR Report of E-Service Waiver advising the court which
defendant(s) listed in this order will be waiving service of process without the need for service by
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the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or
could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service
Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court
a waiver of service of process for the defendant(s) who are waiving service.
Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each
defendant who has not waived service according to the CDCR Report of E-Service Waiver a
USM-285 Form. The Clerk shall provide to the USMS the completed USM-285 forms and copies
of this order, the summons, and the operative complaint for service upon each defendant who has
not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E-
Service Waiver.
4. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure
requires defendants to cooperate in saving unnecessary costs of service of the summons and
complaint. 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)(A)(ii), defendants will not be
required to serve and file an answer before sixty (60) days from the date on which the CDCR
provides a copy of the CDCR Report of E-Service Waiver to the California Attorney General’s
Office. (This allows a longer time to respond than would be required if formal service of
summons is necessary.) If defendants have not waived service and have instead been served by
the USMS, then defendants shall serve and file an answer within twenty-one (21) days after being
served with the summons and complaint.
5. Defendants shall answer the complaint in accordance with the Federal Rules of
Civil Procedure. The following briefing schedule shall govern dispositive motions in this action:
a. No later than sixty (60) days from the date their answer is due, defendants
shall file a motion for summary judgment or other dispositive motion. The motion must be
supported by adequate factual documentation, must conform in all respects to Federal Rule of
Civil Procedure 56, and must include as exhibits all records and incident reports stemming from
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the events at issue. A motion for summary judgment also must be accompanied by a Rand2 notice
so that plaintiff will have fair, timely, and adequate notice of what is required of him to oppose the
motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand
must be served concurrently with motion for summary judgment). A motion to dismiss for failure
to exhaust available administrative remedies must be accompanied by a similar notice. However,
the Court notes that under the law of the circuit, in the rare event that a failure to exhaust is clear
on the face of the complaint, defendants may move for dismissal under Rule 12(b)(6), as opposed
to the previous practice of moving under an unenumerated Rule 12(b) motion. Albino v. Baca,
747 F.3d 1162, 1166 (9th Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119
(9th Cir. 2003), which held that failure to exhaust available administrative remedies under the
Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), should be raised by a defendant as
an unenumerated Rule 12(b) motion). Otherwise, if a failure to exhaust is not clear on the face of
the complaint, defendants must produce evidence proving failure to exhaust in a motion for
summary judgment under Rule 56. Id. If undisputed evidence viewed in the light most favorable
to plaintiff shows a failure to exhaust, defendants are entitled to summary judgment under Rule
56. Id. But if material facts are disputed, summary judgment should be denied and the district
judge, rather than a jury, should determine the facts in a preliminary proceeding. Id. at 1168.
If defendants are of the opinion that this case cannot be resolved by summary judgment,
they shall so inform the Court prior to the date the summary judgment motion is due. All papers
filed with the Court shall be promptly served on plaintiff.
b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court
and served on defendants no later than twenty-eight (28) days after the date on which defendants’
motion is filed.
c. Plaintiff is advised that a motion for summary judgment under Rule 56 of
the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you
must do to oppose a motion for summary judgment. Generally, summary judgment must be
2 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
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granted when there is no genuine issue of material fact—that is, if there is no real dispute about
any fact that would affect the result of your case, the party who asked for summary judgment is
entitled to judgment as a matter of law, which will end your case. When a party you are suing
makes a motion for summary judgment that is supported properly by declarations (or other sworn
testimony), you cannot simply rely on what your complaint says. Instead, you must set out
specific facts in declarations, depositions, answers to interrogatories, or authenticated documents,
as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and
documents and show that there is a genuine issue of material fact for trial. If you do not submit
your own evidence in opposition, summary judgment, if appropriate, may be entered against you.
If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154
F.3d at 962-63.
Plaintiff also is advised that—in the rare event that defendants argue that the failure to
exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available
administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without
prejudice. To avoid dismissal, you have the right to present any evidence to show that you did
exhaust your available administrative remedies before coming to federal court. Such evidence
may include: (1) declarations, which are statements signed under penalty of perjury by you or
others who have personal knowledge of relevant matters; (2) authenticated documents—
documents accompanied by a declaration showing where they came from and why they are
authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements
in your complaint insofar as they were made under penalty of perjury and they show that you have
personal knowledge of the matters state therein. As mentioned above, in considering a motion to
dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment
motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed
issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168.
(The notices above do not excuse defendants’ obligation to serve similar notices again
concurrently with motions to dismiss for failure to exhaust available administrative remedies and
motions for summary judgment. Woods, 684 F.3d at 935.)
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d. Defendants shall file a reply brief no later than fourteen (14) days after the
date plaintiff’s opposition is filed.
e. The motion shall be deemed submitted as of the date the reply brief is due.
No hearing will be held on the motion unless the Court so orders at a later date.
6. Discovery may be taken in this action in accordance with the Federal Rules of Civil
Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to defendants to depose
plaintiff and any other necessary witnesses confined in prison.
7. All communications by plaintiff with the Court must be served on defendants or
their counsel, once counsel has been designated, by mailing a true copy of the document to them.
8. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court
informed of any change of address and must comply with the Court’s orders in a timely fashion.
Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes
while an action is pending must promptly file a notice of change of address specifying the new
address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail
directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2)
the Court fails to receive within sixty days of this return a written communication from the pro se
party indicating a current address. See L.R. 3-11(b).
9. Upon a showing of good cause, requests for a reasonable extension of time will be
granted provided they are filed on or before the deadline they seek to extend.
IT IS SO ORDERED.
Dated: October 28, 2025
TRINA L. THOMPSON
United States District Judge
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