Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 GINO VINDIOLA, Case No.: 3:24-cv-2070-CAB-MSB 14 Plaintiff, ORDER: 15 v. (1) DIRECTING CLERK TO RE- 16 CORPORAL ROMO, DEPUTY ISSUE SUMMONS AND IFP GONZALEZ, 17 PACKAGE Defendants. 18 (2) DIRECTING MARSHAL TO 19 EFFECT SERVICE PURSUANT TO FED. R. CIV. P. 4(c)(3) 20 21 (3) GRANTING AN EXTENSION OF TIME PURSUANT TO FED. R. CIV. 22 P. 4(m) 23 24 25 This matter comes before the Court on review of the docket. Plaintiff Gino Vindiola 26 is incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, 27 California, and proceeding pro se and in forma pauperis (“IFP”) in this civil rights action 28 filed pursuant to 42 U.S.C. § 1983. [Doc. No. 1.] 1 I. BACKGROUND 2 On August 11, 2025, the Court dismissed San Diego County Sheriff’s Department 3 as a Defendant, directed the Clerk to issue a summons as to Plaintiff’s First Amended 4 Complaint (“FAC”), and ordered the U.S. Marshals Service (“USMS”) to serve a copy of 5 the FAC and summons upon Defendants Romo and Gonzalez (“Defendants”). Defendants, 6 once served, were to reply to Plaintiff’s FAC and any subsequent pleading Plaintiff files in 7 this matter. [See Doc No. 8.] The Clerk of Court issued a summons the same day. [Doc. 8 No. 9.] 9 USMS effectuated service on September 24, 2025. [Doc. Nos. 12, 13.] The Form 10 USM-285 USMS used to serve Defendants Romo and Gonzalez both lists “SDSO S. 11 Ryder” as the name of the individual served. [See Id.] Neither Defendant has entered an 12 appearance with the Court and there has been no further activity on the docket. 13 II. DISCUSSION 14 In accordance with Rule 4(e), service of process may be effected “pursuant to the 15 law of the state in which the district court is located [.]” Fed.R.Civ.P. 4(e)(1). California 16 law provides for service of an individual person “by delivering a copy of the summons and 17 of the complaint to such person or to a person authorized by him to receive service of 18 process.” Cal.Civ.Proc.Code § 416.90. If, after reasonable diligence, the summons and 19 complaint cannot be personally delivered in accordance with Section 416.90, several 20 methods of substitute service are permitted. Cal.Civ.Proc.Code § 415.20(b). One such 21 method is effected by leaving a copy of the summons and complaint at the “usual place of 22 business” of the person to be served, in the presence of a “person apparently in charge,” 23 and afterwards mailing a copy of the summons and complaint by first-class mail to the 24 same location. Id. “Service of a summons in this manner is deemed complete on the 10th 25 day after the mailing.” Id. 26 Here, USMS did not deliver Plaintiff’s FAC to Defendants personally, nor was it left 27 with a person authorized by Defendants to receive service. The Court does not know who 28 “SDSO S. Ryder” is and has no reason to believe that “SDSO S. Ryder” is authorized to 1 accept service on behalf of Defendants. Further, the Court has no evidence on the docket 2 that USMS attempted any of the other acceptable substitute service methods. Therefore, 3 the Court finds that USMS improperly served Defendants. 4 Service delayed as the result of a Clerk’s Office or USMS error automatically creates 5 cause to extend Rule 4(m)’s 90-day clock. See, e.g., Walker v. Sumner, 14 F.3d 1415, 1422 6 (9th Cir. 1994) (“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled 7 to rely on the U.S. Marshal for service of the summons and complaint and . . . should not 8 be penalized by having his action dismissed for failure to effect service where the U.S. 9 Marshal or the court clerk has failed to perform his duties.”); see also Mann v. American 10 Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003) (noting the district court’s broad discretion 11 under Fed. R. Civ. P. 4(m) to extend time under Rule 4(m) even after time has expired). 12 Thus, because USMS did not properly serve Defendants, the Court finds good cause 13 to extend the time for service in this cause pursuant to Rule 4(m). See Mann,324 F.3d 14 at1090 (holding that a district court may, under the broad discretion granted by Federal 15 Rule of Civil Procedure 4(m), extend time for service retroactively after the service period 16 has expired). 17 III. CONCLUSION 18 For the reasons discussed, the Court: 19 1. DIRECTS the Clerk to re-issue a summons as to Plaintiff’s FAC, [Doc. No. 7], for 20 Defendants Romo and Gonzalez and forward it to Plaintiff along with a blank U.S. 21 Marshal Form 285 for these Defendants. The Clerk will provide Plaintiff with 22 certified copies of his FAC and the summons so that he may serve the Defendants. 23 Upon receipt of this “In Forma Pauperis Package,” Plaintiff must complete the USM 24 Form 285 as completely and accurately as possible, include an address where 25 Defendants may be found and/or subject to service pursuant to S.D. Cal. Civ. LR 26 4.1(c), and return the form to the United States Marshal according to the instructions 27 provided in the letter accompanying the In Forma Pauperis Package. 28 1 2. ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon 2 Defendants Romo and Gonzalez as directed by Plaintiff on the USM Form 285, and 3 to file an executed waiver of personal service upon Defendants Romo and Gonzalez 4 with the Clerk of Court as soon as possible after its return. Should Defendants fail 5 to return the U.S. Marshal’s request for waiver of personal service within 90 days, 6 the U.S. Marshal must instead file the completed, but unexecuted Form USM 285 7 Process Receipt and Return with the Clerk of Court, include the date the summons, 8 FAC, and request for waiver was mailed, and indicate why service was unsuccessful. 9 All costs of service will be advanced by the United States; however, if any Defendant 10 located within the United States fails, without good cause, to sign and return the 11 waiver requested by the Marshal on Plaintiff’s behalf, the Court will impose upon 12 that Defendant any expenses later incurred in making personal service. See 28 13 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 14 3. ORDERS Defendants, once served, to reply to Plaintiff’s FAC and any subsequent 15 pleading Plaintiff files in this matter in which Defendants are named as a party within 16 the time provided by the applicable provisions of Federal Rules of Civil Procedure 17 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g) (stating that while defendants may 18 occasionally be permitted to “waive the right to reply to any action brought by a 19 prisoner confined in any jail, prison, or other correctional facility under section 20 1983,” once the Court has conducted its screening pursuant to 28 U.S.C. 21 §§ 1915(e)(2) an 1915A(b), and thus has made a preliminary determination that 22 Plaintiff has a “reasonable opportunity to prevail on the merits,” defendants are 23 required to respond). 24 4. ORDERS Plaintiff, after service, to serve upon Defendants, or if appearance has 25 been entered by counsel, upon Defendants’ counsel, a copy of every further 26 pleading, motion, or other document submitted for the Court’s consideration 27 pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every original document 28 he seeks to file, a certificate stating the manner in which a true and correct copy of 1 that document has been served on Defendants or Defendants’ counsel, and the date 2 of that service. See S.D. Cal. CivLR 5.2. Any document received by the Court 3 which has not been properly filed or which fails to include a Certificate of Service 4 upon Defendants or their counsel may be disregarded. 5 It is SO ORDERED. 6 Dated: February 25, 2026 (ib 7 Hon. Cathy Ann Bencivengo 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28