The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 BENJAMIN F. ELLIS, No. 2:21-cv-1635-WBS-EFB (PC)
12 Plaintiff,
13 v. ORDER
14 R. BROWN, et al.,
15 Defendants.
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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
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