Censale v. Jackson

Filing 6

ORDER OF SERVICE. Habeas Answer or Dispositive Motion due by 8/28/2017. Signed by Magistrate Judge Kandis A. Westmore on 6/28/17. (Attachments: # 1 Certificate/Proof of Service)(sisS, COURT STAFF) (Filed on 6/28/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

BRIAN ROBERT CENSALE,
Plaintiff,

8
9
10

ORDER SERVING COGNIZABLE
CLAIMS

v.
ANDRE E. JACKSON,
Defendant.

11
United States District Court
Northern District of California

Case No. 17-cv-01363-KAW (PR)

12
13

Plaintiff Brian Robert Censale, a pretrial detainee incarcerated at the San Mateo County

14

Jail, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging the violation of his

15

constitutional rights by Andre Jackson, San Mateo County Sheriff’s Office Administration

16

Classification Sergeant. Plaintiff has consented to the jurisdiction of the undersigned United States

17

Magistrate Judge over this action. Plaintiff’s motion for leave to proceed in forma pauperis is

18

granted in a separate order. The Court now reviews Plaintiff’s complaint.
DISCUSSION

19
20
21
22
23
24
25
26
27
28

I. Preliminary Review of Complaint
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. 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. Id. § 1915A(b)(1), (2). Pro se
pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1988).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

1

claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the

2

statement need only “‘give the defendant fair notice of what the . . . claim is and the grounds upon

3

which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

4
5

(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

6

the alleged violation was committed by a person acting under the color of state law. West v.

7

Atkins, 487 U.S. 42, 48 (1988).
Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the

8
9

plaintiff can show that the defendant’s actions both actually and proximately caused the
deprivation of a federally protected right. Lemire v. Cal. Dept. Corrections & Rehabilitation, 756

11
United States District Court
Northern District of California

10

F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person

12

deprives another of a constitutional right within the meaning of section 1983 if he does an

13

affirmative act, participates in another's affirmative act or omits to perform an act which he is

14

legally required to do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d

15

at 633.

16

Under no circumstances is there respondeat superior liability under § 1983. Lemire, 756

17

F.3d at 1074. Or, in layman's terms, under no circumstances is there liability under section 1983

18

solely because one is responsible for the actions or omissions of another. Taylor v. List, 880 F.2d

19

1040, 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675,

20

680-81 (9th Cir. 1984). A supervisor may be liable under § 1983 upon a showing of (1) personal

21

involvement in the constitutional deprivation or (2) a sufficient causal connection between the

22

supervisor's wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991,

23

1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)).

24

II. Plaintiff’s Claim

25

Plaintiff’s complaint alleges the following: Plaintiff is representing himself in his state

26

criminal case. The state court has ordered that Plaintiff has the right to make telephone calls in

27

connection with his case five hours per week. Beginning in December 2015, jail personnel

28

required Plaintiff to make his legal phone calls from cell HC7. This is a cell that is used for intake
2

1

into the jail and for inmates who are disruptive. The cell is not cleaned by the janitorial staff and

2

smells of urine, feces, vomit, spit and piled-up garbage. The smell is so bad that it is difficult for

3

Plaintiff to breathe.

4

Plaintiff filed a state habeas action about the condition of the cell. In response to the

5

habeas action, Defendant Sgt. Andre Jackson submitted a May 26, 2016 declaration stating, “In

6

the event that Mr. Censale complains to staff that a holding cell where he is taken to complete

7

legal phone calls is unsanitary, staff have been instructed to review and appropriately respond to

8

his complaint.” Plaintiff wrote to Sgt. Jackson several times after May 26, 2016 explaining that

9

the condition of the cell has not improved and that staff ignore his requests to clean the cell.
Apparently, Sgt. Jackson has not responded to Plaintiff or instructed the staff to clean the cell.

11
United States District Court
Northern District of California

10

Presently, the cell is in a disgusting condition and it is “obvious” that staff leave it in that

12

condition deliberately. Keeping the cell in this unsanitary condition creates a health hazard and

13

imposes an undue hardship on Plaintiff to prosecute his state case.

14

Liberally construed, the allegations in the complaint appear to give rise to constitutional

15

claims based on unsanitary conditions of confinement and lack of access to the courts against Sgt.

16

Jackson because he allegedly knew about the constitutional violations and took no steps to remedy

17

the situation.
CONCLUSION

18
19
20
21

1. The allegations in the complaint appear to give rise to cognizable claims for unsanitary
conditions of confinement and lack of access to the courts against Sgt. Andre Jackson.
2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

22

Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint

23

(docket no. 1) and all attachments thereto, a copy of this Order, and a copy of the form “Consent

24

or Declination to Magistrate Judge Jurisdiction” to Sgt. Andre Guzman at the San Mateo County

25

Jail. This form can also be found at www.cand.uscourts.gov/civilforms. The Clerk shall also mail

26

a copy of the complaint and a copy of this Order to the Office of the San Mateo County Counsel,

27

and a copy of this Order to Plaintiff.

28

3. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires him
3

1

to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to

2

Rule 4, if Defendant, after being notified of this action and asked by the Court, on behalf of

3

Plaintiff, to waive service of the summons, fails to do so, he will be required to bear the cost of

4

such service unless good cause be shown for his failure to sign and return the waiver forms. If

5

service is waived, this action will proceed as if Defendant had been served on the date that the

6

waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), Defendant will not be required to

7

serve and file an answer before sixty days from the date on which the request for waiver was sent.

8

(This allows a longer time to respond than would be required if formal service of summons is

9

necessary.)

10

Defendant is advised to read the statement set forth at the foot of the waiver form that more

United States District Court
Northern District of California

11

completely describes the duties of the parties with regard to waiver of service of the summons. If

12

service is waived after the date provided in the Notice but before Defendant has been personally

13

served, the answer shall be due sixty days from the date on which the request for waiver was sent

14

or twenty days from the date the waiver form is filed, whichever is later.

15
16
17

4. Defendant shall file his Consent or Declination to Magistrate Judge Jurisdiction on or
before the date his answer is due.
5. The following briefing schedule shall govern dispositive motions in this action:
a. No later than thirty days from the date his answer is due, Defendant shall file a

18
19

motion for summary judgment or other dispositive motion. If Defendant files a motion for

20

summary judgment, it shall be supported by adequate factual documentation and shall conform in

21

all respects to Federal Rule of Civil Procedure 56. If Defendant is of the opinion that this case

22

cannot be resolved by summary judgment, he shall so inform the Court prior to the date the

23

summary judgment motion is due. All papers filed with the Court shall be promptly served on

24

Plaintiff.

25

At the time of filing the motion for summary judgment or other dispositive motion,

26

Defendant shall comply with the Ninth Circuit’s decision in Woods v. Carey, 684 F.3d 934 (9th

27

Cir. 2012), and provide Plaintiff with notice of what is required of him to oppose a summary

28

judgment motion.
4

1

b. Plaintiff’s opposition to the motion for summary judgment or other dispositive

2

motion shall be filed with the Court and served on Defendant no later than twenty-eight days after

3

the date on which Defendant’s motion is filed. The Ninth Circuit has held that the following notice

4

should be given to pro se plaintiffs facing a summary judgment motion:

5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16

The defendants have made a motion for summary judgment by which they seek to have
your case dismissed. 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 in order to oppose a motion for summary judgment.
Generally, summary judgment must be 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 properly supported 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 [in favor of the defendants], your
case will be dismissed and there will be no trial.
Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc).
Before filing his opposition, Plaintiff is advised to read the notice that will be provided to

17

him by Defendant when the motion is filed, and Rule 56 of the Federal Rules of Civil Procedure

18

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

19

forward with evidence showing triable issues of material fact on every essential element of his

20

claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this

21

case, he must be prepared to produce evidence in support of those allegations when he files his

22

opposition to Defendant’s summary judgment motion. Such evidence may include sworn

23

declarations from himself and other witnesses to the incident, copies of documents authenticated

24

by sworn declaration or discovery. Plaintiff will not be able to avoid summary judgment simply

25

by repeating the allegations of his complaint.

26
27
28

c. Defendant shall file a reply brief no later than fourteen days after the date
Plaintiff’s opposition is filed.
d. The motion shall be deemed submitted as of the date the reply brief is due. No
5

1
2

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

3

Procedure. No further court order pursuant to Rule 30(a)(2) or Local Rule 16 is required before

4

the parties may conduct discovery.

5

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

6

Defendant’s counsel once counsel has been designated, by mailing a true copy of the document to

7

Defendant or his counsel.

8
9

8. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court
informed of any change of address by filing a separate paper with the clerk headed “Notice of
Change of Address,” and must comply with the Court's orders in a timely fashion. Failure to do so

11
United States District Court
Northern District of California

10

may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil

12

Procedure 41(b).

13

9. Extensions of time are not favored, though reasonable extensions will be granted. Any

14

motion for an extension of time must be filed no later than three days prior to the deadline sought

15

to be extended.

16
17
18
19

IT IS SO ORDERED.
28
Dated: June ___, 2017

__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

20
21
22
23
24
25
26
27
28
6