(PC)Ellis v. Brown ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN F. ELLIS, No. 2:21-cv-1635-WBS-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 R. BROWN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. On June 13, 2022, the court issued findings and recommendations to dismiss this 19 action for failure to state a claim upon which relief could be granted. ECF No. 13. 20 Plaintiff has since filed objections to the findings and recommendations, wherein he seeks 21 leave to amend to state a claim against Warden Burton under the Americans with Disabilities Act 22 (“ADA”) for failing to house plaintiff in an ADA compliant cell. ECF No. 14. To state an ADA 23 claim against a public entity, plaintiff must allege that “(1) [he] is a qualified individual with a 24 disability; (2) [he] was excluded from participation in or otherwise discriminated against with 25 regard to a public entity’s services, programs, or activities; and (3) such exclusion or 26 discrimination was by reason of [his] disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th 27 Cir. 2002). To state an ADA claim, plaintiff must do more than simply re-label the allegations 28 previously found to be insufficient to state an Eighth Amendment deliberate indifference to 1 |} medical needs claim. “The ADA prohibits discrimination because of disability, not inadequate 2 | treatment for disability.” Simmons v. Navajo Cty, 609 F.3d 1011, 1022 (9th Cir. 2010) (emphasis 3 || added) (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996). Thus, an ADA claim 4 || requires a showing that plaintiff was discriminated against because of his alleged disability. 5 Although it appears unlikely that plaintiff can state a cognizable ADA claim, the court 6 || will, in an abundance of caution, afford plaintiff a final opportunity to amend. The court will 7 || hold the June 13, 2022 findings and recommendations in abeyance to allow plaintiff an 8 | opportunity to file a second amended complaint alleging an ADA violation. 9 Accordingly, IT IS HEREBY ORDERED that plaintiff's objections (ECF No. 14), which 10 || request leave to file an amended complaint, are granted to the extent that plaintiff shall have 11 | another thirty days within which to file a second amended complaint alleging an ADA violation. 12 | Should plaintiff fail to comply with this order, the findings and recommendations will be 13 || submitted to the district judge for consideration. 14 | Dated: August 19, 2022. 15 Ltr ti EDMUND F. BRENNAN 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28