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Simon v. Cervantes

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 2, 2010

JCX SIMON, PLAINTIFF,
v.
S. CERVANTES, ET AL., DEFENDANTS.

ORDER

JCX Simon, an inmate confined at California State Prison -- Solano, filed this pro se civil rights action under 42 U.S.C. § 1983. On September 15, 2010, the court dismissed the complaint because it failed to state a cognizable claim and ordered plaintiff to file an amended complaint within 30 days or face dismissal. Dckt. No. 7. The court found that plaintiff had failed to allege facts showing that plaintiff is being excluded from some service, program, or activity at the prison for which he is otherwise qualified due to a disability and thus state an ADA claim. The court further found that plaintiff had not stated a viable First Amendment claim, because "[t]he resolution of plaintiff's administrative appeals in a manner unfavorable to plaintiff does not violate the First Amendment [and p]laintiff state[d] no other facts which would show that any right protected by the First Amendment has been violated." Rather than file an amended complaint as directed, plaintiff has submitted a response to the order stating simply that he has had operations on his heart and kidneys. This response fails to discharge plaintiff's obligation to file an amended complaint. The court will grant plaintiff one last opportunity to file an amended complaint to attempt to state cognizable claims under the ADA and/or First Amendment.

Accordingly, it is hereby ordered that plaintiff has 30 days from the date of service of this order to file an amended complaint to attempt to state a cognizable claim. Failure to comply with this order will result in a recommendation that this action be dismissed without prejudice.

20101102

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