(PC) Simon v. Cervantes et al, No. 2:2010cv00980 - Document 13 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/5/11 Recommending that this Action be dismissed without furher leave to amend for Plaintiff's failure to state a claim. These Findings and Recommendations are submitted to U.S. District Judge William B. Shubb. Within fourteen days after befing served with these Findings and Recommendations, any party may file written objections with the Court and serve a copy on all parties. (Mena-Sanchez, L)
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(PC) Simon v. Cervantes et al Doc. 13 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 J.C.X. SIMON, Plaintiff, 11 vs. 12 13 No. CIV S-10-0980 WBS EFB P S. CERVANTES, et al., Defendants. 14 FINDINGS AND RECOMMENDATIONS / 15 J.C.X. Simon, an inmate confined at California State Prison - Solano, filed this pro se 16 17 civil rights action under 42 U.S.C. § 1983. This proceeding was referred to this court by Local 18 Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 19 On September 15, 2010, the court dismissed plaintiff’s complaint with leave to amend. 20 Dckt. No. 7. Specifically, the court found that plaintiff had not stated cognizable claims under 21 the Americans with Disabilities Act or the First Amendment. On November 9, 2010, plaintiff 22 filed an amended complaint. The amended complaint fails to remedy the original complaint’s 23 deficiencies. Specifically, plaintiff has not stated facts showing his exclusion from a program, 24 service, or activity and has not stated facts establishing a violation of the First Amendment. 25 Plaintiff is apparently unable to do so. 26 //// 1 Dockets.Justia.com 1 Accordingly, it is hereby RECOMMENDED that this action be dismissed without further 2 leave to amend for plaintiff’s failure to state a claim. See 28 U.S.C. § 1915A; see also Lopez v. 3 Smith, 203 F.3d 1122, 1128 (9th Cir. 2000) (indigent prisoner proceeding without counsel must 4 be given leave to file amended complaint unless the court can rule out any possibility that the 5 plaintiff could state a claim). 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 11 within the specified time may waive the right to appeal the District Court’s order. Turner v. 12 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 Dated: April 5, 2011. 14 15 16 17 18 19 20 21 22 23 24 25 26 2