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United States District Court 

Northern District of Californi

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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

MARVIN GLENN HOLLIS,

Plaintiff, 

v. 

NURSE RISENHOOVER, et al., 

 Defendants. 

Case No. 17-00326 BLF (PR) 

ORDER OF SERVICE; DIRECTING 

DEFENDANTS TO FILE 

DISPOSITIVE MOTION OR 

NOTICE REGARDING SUCH 

MOTION; INSTRUCTIONS TO 

CLERK 

 

Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 

42 U.S.C. § 1983 against medical officials at Pelican Bay State Prison (“PBSP”). 

Plaintiff’s motion for leave to proceed in forma pauperis has been granted in a separate 

order. 

 

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 
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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). 

 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). 

B. Plaintiff’s Claims 

Plaintiff claims that while at PBSP, Defendants Nurse Risenhoover, Dr. Adams, 

Psychiatrist McCall, and “Psy. Technician” Aldafe acted with deliberate indifference to his 

serious medical needs. (Am. Compl. at 4.) When he arrived at PBSP on January 21, 2016, 

Plaintiff had several prescriptions to treat his chest pain, “borderline” diabetes, 

hypertension, and mental health. (Id. at 5.) After Defendant Risenhoover examined him, 

she discontinued several of the prescriptions, stating that PBSP does not prescribe such 

medication. (Id. at 6-7.) After Plaintiff notified Defendants that he was having chest pain, 

problems with his heart, and extreme pain in his lower back and shoulder, they failed to 

respond. (Id. at 7.) Plaintiff also claims that Defendants McCall and Aldafe discontinued 

his mental health medication which has caused him to suffer psychologically, including 

depression, anxiety, and symptoms associated with bipolar. (Id. at 9-10.) Liberally 

construed, these allegations are sufficient to state a cognizable claim under the Eighth 

Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). 

Plaintiff also identifies “does 1-4” medical staff as defendants. (Am. Compl. at 3.) 

Although the use of “John Doe” to identify a defendant is not favored in the Ninth Circuit, 

see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. Dep’t of Corr., 

406 F.2d 515, 518 (9th Cir. 1968), situations may arise where the identity of alleged 

defendants cannot be known prior to the filing of a complaint. In such circumstances, the 

plaintiff should be given an opportunity through discovery to identify the unknown 
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defendants, unless it is clear that discovery would not uncover their identities or that the 

complaint should be dismissed on other grounds. See Gillespie, 629 F.2d at 642; 

Velasquez v. Senko, 643 F. Supp. 1172, 1180 (N.D. Cal. 1986). Accordingly, the John Doe 

defendants are DISMISSED from this action. If, through discovery, Plaintiff is able to 

identify these unknown defendants, he may then motion the Court for leave to amend to 

name the intended defendants and to issue summons upon them. See Gillespie, 629 F.2d at 

642; Barsten v. Dep’t of the Interior, 896 F.2d 422, 423–24 (9th Cir. 1990). 

CONCLUSION 

For the reasons state above, the Court orders as follows: 

1. The 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 Nurse 

Practitioner Risenhoover, Dr. Adams, Psychiatrist McCall, and Psy. Technician 

Aldafe at Pelican Bay State Prison (P.O. Box 7500, Crescent City, CA 95532). The 

Clerk shall also mail a copy of this Order to Plaintiff. 

Defendants “Does 1-4” are DISMISSED from this action without prejudice. 

 2. 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 
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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. 

 3. No later than ninety-one (91) days from the date this order is filed, 

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. 

 a. Any 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 resolved by summary judgment, he shall so inform the 

Court prior to the date the summary judgment motion is due. 

 b. In the event Defendants file a motion for summary judgment, the 

Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 

warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See

Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 

 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 

and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 

motion is filed. 

 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 

must come forward with evidence showing triable issues of material fact on every essential 

element of his claim). Plaintiff is cautioned that failure to file an opposition to 

Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 
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the granting of the motion, and granting of judgment against Plaintiff without a trial. See

Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 

F.3d 651, 653 (9th Cir. 1994). 

 5. Defendants shall file a reply brief no later than fourteen (14) days after 

Plaintiff’s opposition is filed. 

 6. 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. 

 7. All communications by the Plaintiff with the Court must be served on 

Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 

copy of the document to Defendants or Defendants’ counsel. 

 8. Discovery may be taken in accordance with the Federal Rules of Civil 

Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 

Rule 16-1 is required before the parties may conduct discovery. 

 9. 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. Failure to do so may result in the dismissal of this action for failure to 

prosecute pursuant to Federal Rule of Civil Procedure 41(b). 

 10. Extensions of time must be filed no later than the deadline sought to be 

extended and must be accompanied by a showing of good cause. 

IT IS SO ORDERED. 

Dated: _____________________ ________________________ 

BETH LABSON FREEMAN 

United States District Judge 

Order of Service 

PRO-SE\BLF\CR.17\00326Hollis_svc