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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MANUEL AYALA, No. CIV S-04-0903-RRB-CMK-P

Plaintiff, 

vs. ORDER

ANDREASEN, et al.,

Defendants.

 /

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

to 42 U.S.C. § 1983.

On November 3, 2005, the court issued an order determining that service of

plaintiff’s second amended complaint was appropriate for defendants Dr. Sawkar, Dr.

Andreasen, Dr. Bick, Gutierrez, Sullwold, Enriquez, and Grannis. Incident to that order,

plaintiff submitted documents necessary for service of the action by the U.S. Marshal, except a

completed summons. On December 7, 2005, the court forwarded plaintiff a blank summons

form and directed him to return it, completed, within 30 days. Plaintiff has not complied. 

Instead, on January 9, 2006, plaintiff filed a request for leave to file a third amended complaint,

along with a proposed amended pleading. On February 22, 2006, the court issued an order

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Plaintiff seeks to supplement his allegations concerning defendant Klingman. 1

While this defendant is not listed on the court’s docket as a party to this action, he was listed as a

defendant in the third amended complaint filed on January 9, 2006, and, therefore, is a party to

this action.

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denying plaintiff’s motion for leave to amend as unnecessary. 

On June 6, 2006, plaintiff filed a second motion for leave to supplement the third

amended complaint with respect to allegations against one of the defendants named in the third

amended complaint. Attached to plaintiff’s motion is a proposed fourth amended complaint. 

The court has reviewed the proposed amended pleading and finds that allowing the amendment

is appropriate. Specifically, plaintiff does not add any new defendants or claims. Rather, he 1

seeks to augment his existing factual allegations. The Clerk of the Court will be directed to

detach the amended complaint attached to plaintiff’s June 6, 2006, filing and to file it separately,

as of this same date, as plaintiff’s fourth amended complaint which is the operative pleading in

this case.

The court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

§ 1915A(a). Plaintiff claims that, in July 1999, he underwent surgery to place a shunt in his

chest. Plaintiff asserts that a piece of this shunt broke off and lodged in or near plaintiff’s heart. 

Plaintiff states that a medical doctor attempted unsuccessfully to remove the broken piece from

plaintiff’s body. Plaintiff was then placed under the care of a specialist from the University of

California, San Francisco. Plaintiff claims that this specialist prescribed a specific course of

treatment and that defendants interfered with this treatment for budgetary reasons. 

In particular, plaintiff asserts that defendant Andreasen informed him that he

would not be following the specialist’s prescribed course of treatment, which included additional

surgery to remove the broken shunt. Plaintiff states that, after presenting an inmate grievance

concerning the issue, defendant Bick also refused to follow the specialist’s recommendations. 

Plaintiff alleges that the remaining defendants also “acquiesced” in the above-described

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interference with the specialist’s course of treatment. Plaintiff states that it has been over six

years since the specialist recommended additional surgery and that he still had not had the

broken shunt piece removed. 

Plaintiff requests that the court exercise supplemental jurisdiction over related

state law tort claims. Plaintiff seeks declaratory relief and monetary damages.

The fourth amended complaint appears to state a cognizable claim for relief

pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations are proven, plaintiff

has a reasonable opportunity to prevail on the merits of this action. The court, therefore, finds

that service is appropriate and will direct service by the U.S. Marshal without pre-payment of

costs. Plaintiff is informed, however, that this action cannot proceed further until plaintiff

complies with this order. Plaintiff is warned that failure to comply with this order may result in

dismissal of the action. See Local Rule 11-110. 

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s motion to amend the complaint (Doc. 18) is granted;

2. The Clerk of the Court is directed to separate file, as of June 6, 2006, the

proposed fourth amended complaint attached to plaintiff’s motion to amend;

3. The Clerk of the Court is further directed to update the docket to reflect

that Klingman is a defendant to this action;

4. Service is appropriate for the following defendant(s): 

ANDREASEN,

BICK,

SAWKAR,

ENRIQUEZ,

SULLWOLD,

GUTIERREZ,

GRANNIS, and

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KLINGMAN;

5. The Clerk of the Court shall send plaintiff one USM-285 form for each

defendant identified above, one summons, an instruction sheet, and a copy of the fourth amended

complaint filed June 6, 2006; and

6. Within 30 days of the date of service of this order, plaintiff shall complete

the attached Notice of Submission of Documents and submit the following documents to the

court:

a. The completed Notice of Submission of Documents;

b. One completed summons;

c. Eight completed USM-285 form(s); and

d. Eight copies of the endorsed fourth amended complaint filed June

6, 2006.

DATED: September 5, 2006.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MANUEL AYALA, No. CIV S-04-0903-RRB-CMK-P

Plaintiff, 

vs.

ANDREASEN, et al.,

Defendants.

 /

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's

order:

 1 completed summons form;

 completed USM-285 forms; and

 copies of the fourth amended complaint filed on June 6, 2006.

DATED: __________________ ____________________________________

Plaintiff

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