Opinion
No. CIV S-03-01854 DFL EFB P.
August 29, 2006
ORDER
Plaintiff is a state prisoner seeking relief pursuant to 42 U.S.C. § 1983. On September 15, 2003, plaintiff filed an amended complaint alleging civil rights violations pursuant to 42 U.S.C. § 1983 and under the Americans With Disabilities Act (ADA). On March 9, 2004, the court dismissed the amended complaint with leave to amend. On March 29, 2004, plaintiff filed an amended complaint alleging civil rights violations pursuant to 42 U.S.C. § 1983 and under the ADA. On April 8, 2004, the court found plaintiff failed to state any claim pursuant to 42 U.S.C. § 1983 and recommended these claims be dismissed, but found plaintiff did state a claim against defendant Pliler under the ADA. On June 23, 2004, the district judge adopted the findings and recommendations.
Accordingly, this action proceeds only on plaintiff's claim against defendant Pliler under the ADA.
On February 3, 2006, defendant Pliler moved for summary judgment upon the ground the complaint fails to state a claim for relief pursuant to 42 U.S.C. § 1983. On July 27, 2006, plaintiff opposed.
Defendant's motion addresses claims this court has already dismissed.
Accordingly, IT IS HEREBY ORDERED that defendant's February 3, 2006, motion is denied without prejudice. Defendant has 30 days from the date of this order to file and serve an appropriate motion.