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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN ROBERT CENSALE, BE4657, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 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 13 state criminal trial in which plaintiff was representing himself, plaintiff filed the instant action for 14 injunctive and monetary relief under 42 U.S.C. § 1983 alleging that the unsanitary condition of the 15 holding cell he was assigned to use to make phone calls in connection with his criminal trial – cell 16 is not cleaned regularly by the janitorial staff and smells of urine, feces, vomit, spit and piled-up 17 garbage – creates a health hazard and imposes an undue hardship on his ability to represent 18 himself in his criminal trial. 19 On June 28, 2017, the court (Westmore, M.J.) screened the complaint pursuant to 28 20 U.S.C. § 1915A and found that, liberally construed, “the allegations in the complaint appear to 21 give rise to constitutional claims based on unsanitary conditions of confinement and lack of access 22 to the courts against Sgt. Jackson because he allegedly knew about the constitutional violations 23 and took no steps to remedy the situation.” June 28, 2017 Order (ECF No. 6) at 3. The court also 24 25 26 27 28 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 1 a punitive cond p dition and de eliberate indi ifference in connection w the uns with sanitary cond dition of 2 con nfinement cl laim. On September 20, 2017, plain filed an opposition a ntiff and, on Septe ember 25, 3 201 defendan file a reply 17, nt y. 4 5 6 On Oct tober 23, 201 plaintiff filed a notice of change of address in 17, 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 8 and unsanitary condition cl d laims are best evaluated in the conte of a motion for summ ext mary 9 jud dgment in wh the court can review evidence ( hich w (including ev vidence alrea in the re ady ecord), the 10 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 11 United States District Court Northern District of California 7 sum mmary judgm under Federal Rule of Civil Pro ment F e ocedure 56 ( a motion to dismiss a for (or n and 12 13 14 15 16 17 18 19 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 20 21 22 23 24 25 26 27 28 2

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