Censale v. Jackson

Filing 32

ORDER DENYING MOTION TO DISMISS WITHOUT PREJUDICE by Judge Charles R. Breyer: Denying 19 Motion to Dismiss. The deputy clerk hereby certifies that on 11/9/2017 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing. (lsS, COURT STAFF) (Filed on 11/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRIAN ROBERT CENSALE, BE4657,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-01363-CRB (PR)
ORDER DENYING MOTION TO
DISMISS WITHOUT PREJUDICE

v.
ANDRE E. JACKSON, Sergeant,
Defendant(s).

(ECF No. 19)

On March 13, 2017, while plaintiff was detained at the San Mateo County Jail awaiting a

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state criminal trial in which plaintiff was representing himself, plaintiff filed the instant action for

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injunctive and monetary relief under 42 U.S.C. § 1983 alleging that the unsanitary condition of the

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holding cell he was assigned to use to make phone calls in connection with his criminal trial – cell

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is not cleaned regularly by the janitorial staff and smells of urine, feces, vomit, spit and piled-up

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garbage – creates a health hazard and imposes an undue hardship on his ability to represent

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himself in his criminal trial.

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On June 28, 2017, the court (Westmore, M.J.) screened the complaint pursuant to 28

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U.S.C. § 1915A and found that, liberally construed, “the allegations in the complaint appear to

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give rise to constitutional claims based on unsanitary conditions of confinement and lack of access

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to the courts against Sgt. Jackson because he allegedly knew about the constitutional violations

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and took no steps to remedy the situation.” June 28, 2017 Order (ECF No. 6) at 3. The court also

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ordered Sgt. Jackson served.
On August 28, 2017, after the action was reassigned to the undersigned, defendant Sgt.
Jackson filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the ground
that plaintiff failed to state a claim upon which relief can granted. Defendant specifically argues
that plaintiff did not suffer an actual injury in connection with the denial of court access claim, or

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a punitive cond
p
dition and de
eliberate indi
ifference in connection w the uns
with
sanitary cond
dition of

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con
nfinement cl
laim. On September 20, 2017, plain filed an opposition a
ntiff
and, on Septe
ember 25,

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201 defendan file a reply
17,
nt
y.

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On Oct
tober 23, 201 plaintiff filed a notice of change of address in
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ndicating that he had
bee transferre to San Qu
en
ed
uentin State Prison after b
P
being convic in state court.
cted
Because plaintiff’s recent conviction and tr
ransfer to sta prison lik will moo his claims
ate
kely
ot
s
for injunctive relief, and be
r
r
ecause defen
ndant’s argum
ments agains plaintiff’s denial of co access
st
s
ourt

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and unsanitary condition cl
d
laims are best evaluated in the conte of a motion for summ
ext
mary

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jud
dgment in wh the court can review evidence (
hich
w
(including ev
vidence alrea in the re
ady
ecord), the

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mo
otion to dism (ECF No 19) is DEN
miss
o.
NIED witho prejudice to serving a filing a m
out
e
and
motion for

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United States District Court
Northern District of California

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sum
mmary judgm under Federal Rule of Civil Pro
ment
F
e
ocedure 56 ( a motion to dismiss a for
(or
n
and

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sum
mmary judgm
ment) within 56 days of this order. P
n
Plaintiff must serve and file an oppo
osition or
statement of no
on-oppositio to the mot
on
tion not mor than 28 da after the motion is se
re
ays
erved and
file and defen
ed,
ndants must serve and file a reply to an oppositio not more than 14 day after the
on
ys
opp
position is se
erved and fil
led.
IT IS SO ORDER
S
RED.
Da
ated: Novem
mber 9, 2017
__________
___________
__________
________
___
CH
HARLES R. BREYER
Un
nited States D
District Judg
ge

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