Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VINCENT CIARDULLO, Case No.: 24-cv-2091-BJC-AHC 12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART COUNTY 13 v. DEFENDANTS’ MOTION TO 14 COUNTY OF SAN DIEGO, et. al., DISMISS; GRANTING DEFENDANT WEISS’ MOTION TO DISMISS; AND 15 Defendants. DENYING PLAINTIFF’S 16 SUPPLEMENTAL MOTION FOR SERVICE BY PUBLICATION 17 18 [ECF Nos. 52, 56, 62]

19 BACKGROUND 20 Plaintiff Vincent Ciardullo originally filed a complaint on November 11, 2024. ECF 21 No. 1. He filed a First Amended Complaint (“FAC”) on February 17, 2025, asserting 22 claims under 42 U.S.C. § 1983, including deliberate indifference to serious medical needs, 23 failure to properly train, failure to properly supervise and discipline, and a cause of action 24 under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). ECF No. 25 43. He also asserts claims for violation of the Americans with Disabilities Act, 42 U.S.C. 26 § 12101 et seq. and violation of the Rehabilitation Act, 29 U.S.C. §794(a). Id. Plaintiff 27 alleges, while he was in custody and detained at the Vista Detention Facility (“VDF”), 28 1 medical staff failed to provide adequate medical care, leading to him to suffer “repeated 2 reinjuries” to his right leg, and “an ankle sprain on top of the non-union of his tibia and 3 broken metal rod.” Id. at 3.1 Plaintiff names the County of San Diego, NaphCare, Peter J. 4 Freeland, Jon Montgomery, William Gore, Kelly Martinez, Anthony Ray, Serina 5 Rognlien-Hood, Stacy Thompson, Richard Rhee, Ana Munoz, Nas Rafi, Emily Mims, Anil 6 Kumar, Samantha Macanlalay, Justin Weiss, Helen Breeler, Christine Sullivan, Nicolaus 7 Rosete, Yaowaluck Hagg, Leah Gache, Pooja Mittal, Juancho Trinidad, Bruce Pastner, 8 Ellen Tanacio, Andrea Medina, Donato Preche, Silva Suaking, Wenyan Boyd, Yvonne 9 Arce, and Jessica Flores as defendants. 10 On February 28, 2025, Defendant Naphcare and Defendant Correctional Healthcare 11 Partners filed separate motions to dismiss. ECF Nos. 48, 51. Defendants Arce, Boyd, 12 County of San Diego, Flores, Gache, Gore, Hagg, Kumar, Macanlalay, Martinez, Medina, 13 Mittal, Montgomery, Munoz, Rognlien-Hood, Suaking, and Tanacio (“County 14 Defendants”) filed a motion to dismiss, pursuant to Federal Rule of Civil Procedure 15 12(b)(6), on March 3, 2025. ECF No. 52. On March 11, 2025, Defendant Weiss filed a 16 motion to dismiss pursuant to Rule 12(b)(6). ECF No. 56. Plaintiff filed a response to the 17 motions on April 19, 2025. ECF No. 59. On May 3, 2025, Plaintiff filed a motion for 18 service by publication. ECF No. 62. Defendants filed replies in support of their motions 19 to dismiss. ECF Nos. 63-66. 20 On September 10, 2025, this Court filed an order Granting Defendant Naphcare’s 21 motion to dismiss and granting in part Defendant Correctional Health Partner’s motion to 22 dismiss. ECF No. 67. Although the Court provided Plaintiff an opportunity to amend to 23 address the deficiencies noted, Plaintiff did not amend the FAC. 24 /// 25 /// 26 27 28 1 DISCUSSION 2 I. Motions to Dismiss 3 A. Legal Standard 4 To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain 5 sufficient facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 6 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual 7 content that allows the court to draw the reasonable inference that the defendant is liable 8 for the misconduct alleged.” Id. The allegations must be construed in the light most 9 favorable to the plaintiff. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th 10 Cir. 2009). While a court must take all factual allegations in the complaint as true, it is 11 “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan 12 v. Allain, 478 U.S. 265, 286 (1986). “Threadbare recitals of the elements of a cause of 13 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 14 In resolving the motion, the court does not weigh evidence, evaluate witness credibility, or 15 consider the likelihood that a plaintiff will prevail at trial. Bell v. Twombly, 550 U.S. 544, 16 556. The Court may consider the facts alleged in the complaint and documents attached to 17 the complaint, when ruling on a motion to dismiss. Lee v. City of Los Angeles, 250 F.3d 18 668, 688-89 (9th Cir. 2001). 19 B. County Defendants 20 County Defendants argue the FAC should be dismissed for failure to state a claim 21 because (1) the allegations are insufficient to support a claim of deliberate indifference to 22 Plaintiff’s serious medical needs; (2) the Monell claim also fails because Plaintiff cannot 23 establish deliberate indifference; and (3) there are insufficient allegations to maintain 24 claims for failure to train and failure to supervise. 25 1. Deliberate Indifference Cause of Action 26 Defendants argue the FAC fails to allege facts to show that the individual defendants 27 acted with deliberate indifference to Plaintiff’s medical needs. In his opposition, Plaintiff 28 1 agrees Defendants Kumar, Macanlalay, Boyd, Rodriguez, Gache, Lebbin , Tanacio, 2 Medina, Arce, Suaking, and Flores may be dismissed without prejudice. Additionally, 3 Plaintiff agrees the first cause of action for deliberate indifference may be dismissed as to 4 Defendants Gore, Martinez and Rognlien-Hood. ECF No. 59 at 1-2, 50. 5 Plaintiff does not indicate whether he agrees to dismissal of Defendant Hagg. 6 However, he asserts no argument in opposition to Defendants’ request to dismiss the action 7 against Defendant Hagg, and his only allegation regarding Defendant Hagg’s conduct is 8 that Defendant Hagg “provided Mr. Ciardullo with an ice pack and noted on records, 9 “[a]mbulate antalgic gait to the R leg, using cane.” ECF No. 43 ¶ 67. “[D]eliberate 10 indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton 11 infliction of pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 12 104-05 (1976) (internal citation omitted). The FAC does not allege Defendant Hagg acted 13 with deliberate indifference to Plaintiff’s medical needs. Accordingly, the motion is 14 granted as to the first cause of action for all County Defendants. 15 2. Monell Cause of Action 16 County Defendants argue Plaintiff does not allege conduct that rises to the level of 17 deliberate indifference or that any alleged policies were a moving force in delaying follow- 18 up care or surgery. ECF No. 52-1 at 22. They contend Plaintiff attempts to allege a pattern 19 and practice of staff ignoring medical needs, but they argue Plaintiff does not allege how 20 that specific policy resulted in disregarding his medical needs. Id. at 23. 21 Plaintiff argues the FAC sufficiently alleges he was deprived of adequate medical 22 care. ECF No. 59 at 25. He further contends the FAC details other civil actions brought 23 by former inmates and detainees who suffered from inadequate medical care, and whose 24 medical issues and suffering were compounded by inadequate care from jail staff. Id. at 25 25. He maintains the only plausible inference from the allegations is that the County has a 26 27 28 1 policy, custom, and practice of shortchanging medical services to people entrusted to its 2 care. Id. Additionally, he maintains the FAC alleges facts showing the absence of policies 3 that would ensure adequate care in providing walking devices, giving inmates appropriate 4 palliative care, making safety devices available for bathing, or making timely referrals and 5 appointments with outside providers. Id. at 26. Plaintiff further argues the FAC pleads 6 sufficient allegations to support the inference that the County’s longstanding policy, 7 custom, and practice is the “moving force” behind his deprivation of adequate care. 8 Specifically, he contends the allegations support that he would not have experienced 9 immense pain but for the failures of medical staff to give him devices to keep weight off 10 his leg, ice, a bone stimulator, prescribed anti-infection medicine or a timely referral for 11 surgery. Id. 12 A municipality cannot be held vicariously liable for the acts of its employees under 13 § 1983, but may be held liable for a civil rights violation caused by a policy, custom or 14 practice. Monell, 436 U.S. at 691. To properly state a Monell claim, a plaintiff must allege 15 facts demonstrating: “(1) that he possessed a constitutional right of which he was deprived; 16 (2) that the municipality had a policy; (3) that this policy ‘amounts to deliberate 17 indifference’ to the plaintiff’s constitutional right; and (4) that the policy is the ‘moving 18 force behind the constitutional violation.’” Oviatt By & Through Waugh v. Pearce, 954 19 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389-91 20 (1989)); see also Monell, 436 U.S. at 690-91. A policy amounts to “deliberate 21 indifference” when the need for more or different action “is so obvious, and the inadequacy 22 [of the current procedure] so likely to result in the violation of constitutional rights, that 23 the policy makers of the city can reasonably be said to have been deliberately indifferent 24 to the need.” City of Canton, 489 U.S. at 389. “[A] claim of municipal liability under 25 Section 1983 is sufficient to withstand a motion to dismiss ‘even if the claim is based on 26 nothing more than a bare allegation that the individual officers’ conduct conformed to 27 official policy, custom, or practice.’” Galbraith v. County of Santa Clara, 307 F.3d 1119, 28 1127 (9th Cir. 2002) (quoting Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 1 624 (9th Cir. 1988)). 2 Plaintiff alleges, on or about November 6, 2022, he fractured his “right leg (tibia)” 3 and had surgery to correct the fracture on November 17, 2022. ECF No. 43 ¶¶ 29-30. On 4 or about November 30, 2022, Plaintiff was arrested in connection with a probation 5 violation, booked into VDF, and later sentenced to two years in county jail. Id. ¶¶ 31-32. 6 During the course of his arrest, Plaintiff alleges that his girlfriend notified an officer of his 7 injuries and provided him with Plaintiff’s medical records. Id. ¶ 33. Plaintiff also alleges 8 that he notified Defendants Kumar, Rodriguez, and Thompson of his leg injury as part of 9 his intake process, and notes of his condition were added to his medical record. Id. ¶ 34. 10 Additionally, Plaintiff alleges VDF obtained his medical records regarding his leg injury. 11 Id. ¶ 36. Despite letting VDF staff know of his injury, Plaintiff alleges that there was “no 12 written plan to provide care” based on his medical needs, which violated California Code 13 of Regulations, Title 15 § 1207. Id. ¶¶ 37–38. From November 30, 2022 to March 14, 14 2023, Plaintiff was placed in medical housing and provided a walker. Id. ¶ 46. Plaintiff 15 was seen by medical staff several times from December 7, 2022 through March 4, 2023. 16 Id. ¶¶ 40-45. On March 2, 2023, Plaintiff went to HCH Physical Therapy for a physical 17 therapy appointment and was advised to see an orthopedic surgeon. Id. ¶ 44. Plaintiff 18 alleges this recommendation and treatment notes from this appointment were provided to 19 VDF. Id. On March 4, 2023, Defendant Boyd conducted an ADA Function Performance 20 Test on Plaintiff and noted that Plaintiff needed “assistance with walking, mobility, and 21 bathing.” Id. ¶ 45. 22 On March 14, 2023, Plaintiff was released from medical housing and put in general 23 population, and Plaintiff complained that he still had pain and mobility issues. Id. ¶ 47. 24 Plaintiff alleges that while in general population from March 2023 to April 2023, he was 25 not provided any walking aids or accessible shower facilities despite continually requesting 26 them. Id. ¶¶ 48, 51. Without the use of any aid for walking and standing, Petitioner alleges 27 he placed weight on his leg, causing pain and swelling. Id. ¶ 49. He made sick-call requests 28 for pain, swelling, and to seek a cane and ice packs. ¶¶ 48, 53-55. During a sick-call visit 1 on March 26, 2023, Plaintiff explained he believed his leg was rebroken, but the nurse did 2 not refer him for an x-ray. Id. ¶ 56. During a visit with Defendant Rafi on March 27, 2023, 3 Plaintiff alleges he complained about immense pain. Id. ¶ 57 Plaintiff further alleges the 4 doctor ignored his pain, noted there was no medical indication for cane or ice packs, and 5 ordered an x-ray. Id. On March 29, 2023, Defendant Rafi ordered an additional lab and 6 noted that Plaintiff’s surgery hardware was in place. Id. ¶ 58. On April 22, 2023, an 7 additional exam was conducted by Defendant Rosete, who confirmed that the hardware 8 placed in Plaintiff’s leg during his surgery had broken. Id. ¶ 60. 9 Sometime in May 2023, Plaintiff slipped and fell in the shower. Id. ¶ 66. Plaintiff 10 was taken to University of California, San Diego Health (“UCSD”), where medical staff 11 confirmed Plaintiff’s surgery hardware was broken and stated that he would require an 12 additional surgery. Id. ¶ 69. Plaintiff alleges that even after being on notice that the surgery 13 hardware in his right leg was broken, he was placed back into general population without 14 walking assistive devices. Id. ¶¶ 65, 70. Plaintiff alleges he made several sick-call requests 15 complaining that his leg was broken and that he was in pain. Id. ¶¶ 67, 68, 71, 72, 74, 77- 16 79. Plaintiff believes that VDF’s delay in treating him was due to VDF failing to request 17 Plaintiff’s medical records from UCSD. Id. ¶ 82. 18 On July 18, 2023, Plaintiff was admitted to UCSD and had surgery to repair his leg. 19 Id. ¶ 86. On August 4, 2023, Plaintiff returned to VDF, where medical staff failed to follow 20 postoperative instructions, including failing to provide him with required antibiotic 21 medications. Id. ¶ 89. He alleges VDF has no policy on the administration of medication 22 prescribed by an outside hospital, and the lack of policy led to the unconstitutional conduct 23 of denying him prescribed antibiotics. Id. ¶ 93. On August 9, 2023, Plaintiff alleges he 24 was seen at Temecula Valley Hospital, which confirmed his surgical wound was infected. 25 Id. ¶ 94. 26 Plaintiff alleges the County had a policy and practice of failing to order diagnostic 27 testing and failing to refer incarcerated individuals to specialists when medically necessary. 28 Id. ¶ 161. Specifically, Plaintiff alleges the County fails to adequately train staff as to when 1 and under what circumstances to order diagnostic testing, and the policies for referrals to 2 specialists are inadequate. Id. Plaintiff also alleges the County lacked a policy and practice 3 to ensure that contracted individual providers were exercising appropriate skill and care. 4 Id. ¶ 164. Because there was no policy or procedure requiring referral to a specialist when 5 a broken bone or broken hardware is detected through an x-ray, Plaintiff alleges he was left 6 to suffer for almost two months until he was taken to UCSD, at which time the specialist 7 determined he needed surgery. Id. ¶¶ 166, 175. Additionally, Plaintiff asserts the County 8 also fails to provide adequate medical follow-up treatment to incarcerated people when 9 they return to custody from receiving outside medical specialists. Id. ¶¶ 177, 182. 10 The Court finds Plaintiff sufficiently alleges he possessed a constitutional right to 11 adequate medical care of which he was deprived. He alleges he had surgery only 13 days 12 before being in custody at VDF and needed an orthopedic follow-up and assistance with 13 walking, mobility, and bathing, but he was moved to general population without walking 14 aids or shower assistance. Additionally, Plaintiff alleges he made several sick calls 15 regarding the pain he was experiencing due to the lack of mobility aids and after slipping 16 in the shower, but Defendants kept him in general population without walking assistive 17 devices. He also alleges Defendants failed to provide prescribed antibiotics post-surgery. 18 Plaintiff also sufficiently alleges the county lacked policies for diagnostic testing and 19 referrals to specialists and providing follow-up care after an incarcerated person receives 20 treatment from outside specialists. The allegations show that the lack of policies resulted 21 in him rebreaking his leg and having to endure extreme pain as his treatment was delayed. 22 Additionally, his allegations demonstrate the lack of policy regarding follow-up treatment 23 resulted in his infection. Plaintiff also alleges County Defendants should have been aware 24 that the lack of policies would result in serious injury as demonstrated by the harm caused 25 to other incarcerated individuals. See ECF No. 43 170-181. Accordingly, Plaintiff 26 sufficiently states a Monell claim against the County. The motion to dismiss is denied as 27 to the second cause of action. 28 /// 1 3. Failure to Train Cause of Action 2 Defendants argue Plaintiff’s FAC fails to state a viable claim against Defendants 3 Gore, Martinez, Montgomery, and Rognlien-Hood for failure to train. ECF No. 52-1 at 24. 4 They maintain Plaintiff alleges that Defendants Gore and Martinez failed to maintain 5 adequate and proper training necessary to educate medical staff, but they were sheriffs, not 6 individuals with medical knowledge and have no personal involvement in training medical 7 staff. Id. Additionally, County Defendants contend Sheriff Gore retired before the events 8 giving rise to this lawsuit. County Defendants also argue Plaintiff fails to provide facts to 9 demonstrate Rognlien-Hood’s and Montgomery’s personal involvement in failing to 10 provide medical training to the specific nurses and county employees working at VDF. Id. 11 They further argue that there are no facts that demonstrate a causal link between Rognlien- 12 Hood and Montgomery, and their alleged failures to train. Id. Specifically, they argue 13 Plaintiff cannot provide facts as to what training did not occur, and how Defendants 14 Rognlien-Hood and Montgomery were personally linked to any alleged training failures. 15 Id. at 24-25. 16 Plaintiff argues Defendants are properly sued in their capacity as individuals 17 possessing supervisory powers over the untrained medical staff whose conduct amounted 18 to the denial of adequate care. ECF No. 59 at 35. He contends County Defendants frame 19 the issue incorrectly. Id. He maintains the FAC sufficiently alleges that Defendant 20 Rognlien-Hood, as the Director of Nursing, failed to maintain adequate and proper training 21 for the staff. Id. at 36. Plaintiff further argues the failure to provide him care for months 22 demonstrates staff was not properly trained on how to evaluate and address his medical 23 needs. Id. 24 Plaintiff also argues Defendant Montgomery, the Chief Medical Officer, was 25 responsible for overseeing the Medical Services Division at the jail and for “development 26 and implementation of quality assurance” and supervising all medical staff. Id. at 37. 27 Plaintiff contends the reasonable inference to be drawn from the failure to provide Plaintiff 28 with adequate medical care on several occasions is that Defendant Montgomery, who was 1 responsible for the medical program, failed to ensure the staff had adequate training that 2 would have avoided the pain and complications that Plaintiff endured. Id. at 37-38. 3 Plaintiff further argues Defendants Gore and Martinez, as the leaders of the Sheriff’s 4 Office with ultimate authority over operation of the jails, failed to provide a training 5 program for medical staff. Id. at 38-39. He maintains the history of inadequate care 6 received at the jails show that they did not implement, or require implementation of, 7 appropriate training to safeguard the constitutional rights and ensure the adequate care of 8 inmates. Id. at 39. 9 A supervisor may be held liable for failure to train if the plaintiff shows “that the 10 official was ‘deliberately indifferent to the need to train subordinates, and the lack of 11 training actually caused the constitutional harm or deprivation of rights.’” Hyde v. City of 12 Willcox, 23 F.4th 863, 874 (9th Cir. 2022) (quoting Flores v. Cnty. of L.A., 758 F.3d 1154, 13 1159 (9th Cir. 2014)). To properly state a claim, the plaintiff must allege facts to show that 14 the official disregarded the known or obvious consequence that lack of a particular training 15 program would cause employees to violate individuals’ constitutional rights. Id. (quoting 16 Connick v. Thomspon, 563 U.S. 51, 61 (2011)). 17 Plaintiff alleges Defendants Gore and Martinez served as the Sheriff, at different 18 times relevant to the FAC, with the responsibility of “overseeing all assistant sheriffs, 19 commanders, directors, and executive staff of the San Diego County Sheriff’s Office, 20 which includes those staff tasked with overseeing operations at VDF.” ECF No. 43 ¶ 5. 21 He also alleges Defendant Rognlien-Hood was the Director of Nursing for the Sheriff’s 22 Office, and, in that capacity, she was responsible for overseeing all nursing staff at the 23 Sheriff’s Office facilities, including VDF. Id. ¶ 6. He alleges Defendant Montgomery was 24 the Chief Medical Officer for the Sheriff’s Office and was responsible for overseeing the 25 Medical Services Division at the San Diego County Jail, including the “development and 26 implementation of quality assurance and utilization review policies and procedures.” Id. ¶ 27 13. Plaintiff alleges Defendants Gore, Martinez, Rognlien-Hood and Montgomery failed 28 to train staff when it is appropriate to refer individuals to outside providers, when 1 diagnostic testing is required, and when diagnostic testing reveals conditions that require 2 surgical repair. Id. ¶¶ 193, 194. He also alleges Defendants were aware this training was 3 necessary to avoid serious injuries based upon the harm caused other incarcerated 4 individuals when staff failed to refer them to outside providers or for diagnostic testing. 5 Id. ¶¶ 193, 198. As a result of their failure to properly train staff, Plaintiff alleges he was 6 provided inadequate medical care and suffered a serious injury, months of unnecessary 7 pain, and an infection. Id. ¶¶ 194, 197, 199, 202, 205-207. Plaintiff’s allegations show 8 Defendants knew incarcerated individuals had been harmed as a result of inadequate 9 training in the past, they disregarded the obvious risk of harm to other incarcerated 10 individuals by failing to provided appropriate training, and the lack of training resulted in 11 Plaintiff’s injury. The Court finds Plaintiff sufficiently alleges a claim for failure to train 12 against Defendants Montgomery, Rognlien-Hood, Gore and Martinez. The motion to 13 dismiss is denied as to this claim. 14 4. Failure to Supervise and Discipline Cause of Action 15 County Defendants argue Plaintiff’s failure to supervise and discipline claim fails to 16 provide specific facts regarding personal involvement of the County, Gore, Martinez, 17 Rognlien-Hood, or Montgomery. ECF No. 52-1 at 25. They further argue the claim relies 18 wholly on a National Commission on Correctional Healthcare (“NCCHC”) report. Id. 19 They maintain Plaintiff does not and cannot allege that NCCHC standards create a 20 constitutional floor, and the FAC fails to allege facts regarding the constitutional standards. 21 Id. Additionally, they argue Plaintiff does not provide facts to indicate who or which entity 22 is directly responsible for supervising Defendants Weiss and Rhee, and Plaintiff fails to 23 provide sufficient facts to indicate their acts rise to the level of deliberate indifference. Id. 24 at 25-26. 25 Plaintiff argues Defendants Rognlien-Hood and Montgomery were principal 26 medical officials with responsibility over the nursing staff and medical-care operation for 27 the jails. ECF No. 59 at 42. He maintains, as trained medical professionals, they 28 understood that inadequate care could result in harm to an inmate, they were aware of the 1 multiple different lawsuits brought by inmates alleging inadequate care, and they were 2 likely aware of the deficiencies identified by the NCCHC. Id. at 42-43. Plaintiff contends 3 the FAC alleges no actual supervision or discipline ever occurred as the “Responsible 4 Health Authority” for the jail was rarely onsite. Id. at 43. He further contends the FAC 5 alleges that Defendant Thompson exercised the most authority of the nurses who provided 6 treatment to Plaintiff, and there is no indication that anyone was supervising her or that she 7 had ever been disciplined for her mistreatment of Plaintiff. Id. Plaintiff asserts the 8 allegations provide that the County, and the supervisory defendants failed to implement 9 supervision that would have avoided the harms he suffered. Id. 10 Under § 1983, a supervisor can be held liable in his or her individual capacity if (1) 11 the supervisor was “person[ally] involve[d] in the constitutional deprivation,” or (2) there 12 is a “sufficient causal connection between the supervisor’s wrongful conduct and the 13 constitutional violation.” Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). 14 In support of his claim for failure to supervise and discipline, Plaintiff alleges the 15 “Responsible Health Authority” was not onsite weekly as recommended by the NCCHC. 16 ECF No. 43 ¶ 210. Plaintiff also alleges Defendants “condoned and acquiesced in the 17 abusive behavior of their subordinates by refusing to retrain them, discipline them, or 18 correct their abusive behavior.” Id. ¶ 215. Additionally, Plaintiff alleges Defendants were 19 aware, or should have been aware, that the inadequate policy regarding supervision and 20 discipline of those violating inmates’ civil rights was so obvious that it would result in 21 additional incidents of lawless conduct by Defendants’ subordinates. Id. ¶ 216. He asserts 22 the failure to supervise and discipline were the moving forces behind the inadequate 23 medical care, and the pattern of failing to investigate staff misconduct led to him receiving 24 inadequate medical care. Id. ¶¶ 217-218. He further alleges Defendants Gore, Martinez 25 and Ray were aware of the failures but took no action, and Defendant Martinez refused to 26 provide access to County investigations of misconduct. Id. ¶¶ 219, 220. Plaintiff also 27 alleges the County failed to properly supervise Defendants Weiss and Rhee, who failed to 28 identify that Plaintiff’s tibia did not heal correctly and the steel rod implant broke when 1 they reviewed x-rays of his leg. Id. ¶ 221. He further alleges that had the County conducted 2 any appropriate supervision, they would have learned of the “incompetence” and would 3 have alerted Defendants to the fact Defendant Rhee used the National Provider Index 4 number of another radiologist. Id. He further alleges when UCSD medical professionals 5 recommended corrective surgery, Defendant County of San Diego should have disciplined 6 them but failed to do so. Id. Plaintiff further alleges Defendants’ failure to investigate led 7 to the misconduct by medical staff and was the moving force behind the inadequate medical 8 care provided. Id. ¶¶ 223-225. The FAC is devoid of specific non-conclusory allegations 9 showing the personal involvement of Defendants Gore, Martinez, Rognlien-Hood, or 10 Montgomery in failing to supervise and discipline. Accordingly, the motion to dismiss is 11 granted as to this claim. 12 B. Defendant Weiss’ Motion 13 Defendant Weiss seeks dismissal of the FAC for failure to allege sufficient facts to 14 state a claim for deliberate indifference against him. Specifically, he argues the allegations 15 do not show that he denied, delayed, or intentionally interfered with Plaintiff’s medical 16 treatment. ECF No. 56 at 9. He further argues any allegation that Plaintiff should have 17 received additional or different treatment is insufficient to support a claim under the Eighth 18 Amendment. Id. 19 In opposition, Plaintiff argues the FAC alleges Defendants Weiss and Rhee, medical 20 professionals with experience in radiology, missed that he reinjured his leg despite 21 Plaintiff’s complaints of extraordinary pain and the fact it was swollen with a lump at the 22 surgery site. ECF No. 59 at 22. He further argues the FAC alleges his condition worsened 23 over the course of his time at VDF, but Defendant Weiss repeatedly signed off on studies 24 of his leg that likely showed its worsening condition. Id. He maintains the allegations 25 support the inference that Defendant Weiss did not care to review the studies or to 26 outsource his work to a doctor capable of doing the job. Id. 27 A plaintiff alleging deliberate indifference must first “show a serious medical need 28 by demonstrating that failure to treat a prisoner’s condition could result in further 1 significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 2 F.3d 1091, 1096 (9th Cir.2006) (citing Estelle, 429 U.S. at 104) (internal quotation marks 3 omitted). Second, he “must show the defendant’s response to the need was deliberately 4 indifferent.” Id. This second prong “is satisfied by showing (a) a purposeful act or failure 5 to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 6 indifference.” Id. 7 In the FAC, Plaintiff alleges Defendant Weiss, a doctor at VDF, provided radiology 8 services to Plaintiff. ECF No. 43 ¶¶ 7, 10. Defendant Weiss signed off on lab results on 9 December 25, 2022, January 10, 2023, January 29, 2023, and March 29, 2023. Id. ¶¶ 41- 10 43, 58. Plaintiff asserts Defendant Weiss did not review the x-rays and related radiology 11 materials appropriately, which resulted in the failure to identify issues in Plaintiff’s leg. Id. 12 ¶ 154. He alleges Defendant Weiss failed to identify a single issue with his leg, which 13 contributed to Plaintiff receiving no appropriate care from VDF staff. Id. 14 Plaintiff sufficiently alleges a serious medical need based upon his significant pain 15 and that he rebroke his leg. However, Plaintiff’s allegations regarding Defendant’s Weiss’ 16 review of the radiology materials demonstrate Defendant Weiss potentially engaged in 17 negligent misdiagnosis. Negligence in diagnosis and treatment is not sufficient to state a 18 claim for deliberate indifference. Estelle, 429 U.S. 97, 106 (1977) (“[m]edical malpractice 19 does not become a constitutional violation merely because the victim is a prisoner.”). The 20 allegations do not support Defendant Weiss knew of and disregarded an excessive risk to 21 his health. Accordingly, Plaintiff fails to state a claim against Defendant Weiss, and the 22 motion to dismiss is granted. 23 II. Motion for Service by Publication 24 In an order filed on April 25, 2025, this Court denied Plaintiff’s motion to permit 25 service by publication and substitution on Defendant Rhee without prejudice. ECF No. 61. 26 The Court found Plaintiff satisfied the due diligence requirement for service by publication 27 but determined Plaintiff failed to demonstrate the existence of a claim. Id. at 3, 4; CAL. 28 CIV. PROC. CODE § 415.50(a). 1 In his renewed motion to serve Defendant Rhee by publication, Plaintiff provides 2 the sworn statement of Caitlin Ashton, a licensed private investigator to support the 3 existence of a claim. Ms. Ashton attests to reviewing Plaintiff’s medical records from the 4 Sheriff’s Office, investigating Defendant Rhee’s whereabouts and interviewing Defendant 5 Weiss and Plaintiff. ECF No. 62; 62-1. Plaintiff contends the Court can conclude that 6 Plaintiff had a “serious medical need” and there is a plausible basis to believe Dr. Rhee 7 demonstrated deliberate indifference. ECF No. 62 at 4, 5. He maintains the facts set forth 8 in Ms. Ashton’s declaration show that Defendant Rhee did not note that the hardware in 9 Plaintiff’s leg had broken, identified no issues on the x-ray, and misappropriated the 10 National Provider Index number of another doctor with the same name. Id. 11 The Federal Rules of Civil Procedure allow service of process as permitted by “state 12 law for serving a summons in an action brought in courts of general jurisdiction in the state 13 where the district court is located or where service is made.” FED. R. CIV. P. 4(e)(1). 14 California permits service by publication “if upon affidavit it appears to the satisfaction of 15 the court in which the action is pending that the party to be served cannot with reasonable 16 diligence be served in another manner specified in” Article 3 of the California Code of 17 Civil Procedure. CAL. CIV. PROC. CODE § 415.50(a). In addition to a showing of diligence, 18 California law requires a party seeking service by publication to show that “[a] cause of 19 action exists against the party upon whom service is to be made” or “[t]he party to be served 20 has or claims an interest in real or personal property in this state that is subject to the 21 jurisdiction of the court or the relief demanded in the action consists wholly or in part in 22 excluding the party from any interest in the property.” CAL. CIV. PROC. CODE § 23 415.50(a)(1)-(2). 24 Plaintiff relies solely on the declaration of Ms. Ashton who attests to reviewing 25 Plaintiff’s medical records. In her declaration, Ms. Ashton notes that Defendant Rhee 26 evaluated an x-ray on June 16, 2023, and observed “[d]istal tibial and fibular fixation 27 hardware” but identified no issues with the bones or tissues. ECF No. 62-1. There is no 28 additional information on Defendant Rhee’s conduct surrounding Plaintiff’s treatment. 1 || This single interaction does not sufficiently demonstrate a “cause of action” exists against 2 || Defendant Rhee for purposes of establishing that the Court has jurisdiction over this matter 3 || to issue an order granting Plaintiffs’ motion to effect service by publication. Accordingly, 4 || Plaintiff's motion is denied. 5 CONCLUSION AND ORDER 6 Based on the foregoing, the Court GRANTS IN PART AND DENIES IN PART 7 ||County Defendants’ motion to dismiss. The motion is GRANTED as to the first cause of 8 action for deliberate indifference and the fourth cause of action for failure to supervise and 9 || discipline. The motion is otherwise DENIED. Defendant Weiss’ motion to dismiss is 10 ||}GRANTED. Plaintiff may file an amended complaint addressing the noted deficiencies 11 or before April 17, 2026. Plaintiffs renewed motion to permit service by publication 12 DENIED. 13 IT IS SO ORDERED. 14 || Dated: March 25, 2026 15 16 6 Af ee (4 A fe co Honorable Benjamin J. Cheeks 18 United States District Judge 19 20 21 22 23 24 25 26 27 28