Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 BRYAN KOMINIAK, Case No.: 25-cv-3113-LL-DEB 11 Plaintiff, 12 REPORT AND v. RECOMMENDATION ON 13 DEFENDANT’S MOTIONS TO COUNTY OF SAN DIEGO, et al., 14 DISMISS PLAINTIFF’S AMENDED COMPLAINT 15 Defendants.

16 [DKT. NOS. 3 and 8]

17 This Report and Recommendation on the County of San Diego’s Motions to Dismiss 18 Plaintiff Bryan Kominiak’s Complaint is submitted to United States District Judge Linda 19 Lopez pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and 72.3(e). For the 20 reasons set forth below, the undersigned recommends GRANTING the County’s Motion 21 (Dkt. No. 8) with leave for Plaintiff to amend his 42 U.S.C. § 1983 claim against the County 22 and Sheriff Martinez. 23 I. BACKGROUND 24 A. Procedural Background 25 Kominiak initially filed this case in the California Superior Court against the County 26 of San Diego, the San Diego County Sheriff’s Department, Sheriff Kelly A. Martinez, and 27 John Does 1–15. Dkt. No. 1-2. His Complaint alleged causes of action under 28 42 U.S.C § 1983 for violation of the Fourteenth Amendment, Title II of the Americans 1 with Disabilities Act (“ADA”), California Government Code § 845.6, and professional 2 negligence. Id. 3 The County removed the case to this Court. Dkt. No. 1. The County filed a Motion 4 to Dismiss Kominiak’s Complaint. Dkt. No. 3. The Court did not rule on that Motion, nor 5 did Kominiak submit an opposition. 6 Kominiak then filed the operative First Amended Complaint (“FAC”) against the 7 same Defendants alleging claims under the Fourteenth Amendment, 42 U.S.C. § 1983, and 8 Title II of the ADA. Dkt. No. 5.1 9 The County’s present Motion to Dismiss argues the FAC fails to state a claim (Rule 10 12(b)(6)) and does not provide a short and plain statement that puts the County on notice 11 of the claims (Rule 8(a)(2)). Dkt. No. 8. Kominiak opposes the Motion, and the County has 12 replied. Dkt. Nos. 9, 11. 13 B. Factual Background 14 The allegations in Kominiak’s FAC are assumed true for the purposes of this Motion. 15 See Cahill v. Liberty Mut. Ins., 80 F.3d 336, 337–38 (9th Cir. 1996). The FAC alleges the 16 following: 17 • On December 28, 2023, Kominiak, a pretrial detainee at the George Bailey 18 Detention Facility (“GBDF”), awoke with sharp pain in his left ear. Dkt. No. 5 at 6.2 19 He became dizzy, fell, and hit his head. Id. A fellow inmate reported a “man down” 20 21 22 1 Kominiak’s filing of a FAC renders the County’s first Motion to Dismiss the Complaint moot. The undersigned, therefore, recommends denying Defendant’s Motion to Dismiss at 23 Docket No. 3 as moot. See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 24 (9th Cir. 2015) (“It is well-established in our circuit that an ‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’ . . . Because the 25 [d]efendants’ motion to dismiss targeted the [p]laintiff’s First Amended Complaint, which 26 was no longer in effect, we conclude that the motion to dismiss should have been deemed moot . . . .”) (citations omitted). 27 28 2 When referencing page numbers for documents filed with the Court, the Court’s citation 1 to a “[D]eputy Corporal”, who arrived on scene with other deputies. Id. Kominiak 2 informed the deputies about his ear pain. Id. One deputy responded with incredulity, 3 refused to refer Kominiak to medical, and ordered him to return to his bunk. 4 Id. at 6–7. Approximately fifteen minutes later, Kominiak informed a “[D]eputy 5 Sergeant” that he was in distress, and the “Corporal” denied him medical care. 6 Id. at 7. The “[D]eputy Sergeant” ordered Kominiak to the GBDF Medical 7 Treatment Center (“Treatment Center”) and deputies took him there within minutes. 8 Id. At the Treatment Center, a nurse evaluated Kominiak, diagnosed an ear infection, 9 and prescribed 650 mg of Tylenol and medicated ear drops. Id. 10 • Between December 28, 2023, and January 6, 2024, Kominiak’s symptoms 11 worsened. Id. He experienced increased ear pain, hearing loss, dizziness and 12 disorientation, loss of appetite, and difficulty sleeping. Id. Two deputies contacted 13 medical staff to request further medical evaluation, but medical staff denied their 14 requests. Id. Kominiak submitted multiple medical request forms and, on 15 December 31, 2023, he submitted an inmate grievance form but did not receive a 16 response. Id. at 8. After Kominiak inquired, a “[D]eputy Sergeant” told him there 17 were no administrative remedies for medical service requests. Id. 18 • On January 6, 2024, Kominiak again awoke with ear pain. Id. He called his mother, 19 who contacted GBDF staff on Kominiak’s behalf. Id. Ten minutes later, deputies 20 took Kominiak to the Treatment Center. Id. Upon arrival, the same nurse that 21 previously evaluated him made disparaging and mocking remarks regarding 22 Kominiak needing his “mommy” to manage his affairs. Id. Kominiak was then 23 evaluated by a doctor, who prescribed 800 mg of Ibuprofen, continued medicated 24 drops, and added an oral antibiotic. Id. at 9. Within twenty-four hours, Kominiak’s 25 pain significantly improved, and almost all symptoms disappeared. Id. Kominiak 26 suffered complete hearing loss in his left ear. Id. 27 28 1 I. LEGAL STANDARDS 2 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the 3 sufficiency of the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 12(b)(6) 4 is read in conjunction with Federal Rule of Civil Procedure 8(a), which requires only “a 5 short and plain statement of the claim showing that pleader is entitled to relief[.]” 6 FED. R. CIV. P. 8(a)(2). While Rule 8 does not require detailed factual allegations, at a 7 minimum, a complaint must allege enough facts to provide “fair notice” of both the claims 8 asserted and “the grounds upon which [those claims] rest[].” Bell Atlantic Corp. v. 9 Twombly, 550 U.S. 544, 555 (2007) (citation omitted). 10 In deciding a motion to dismiss, all material factual allegations of the complaint are 11 accepted as true, as well as all reasonable inferences to be drawn from them. Cahill, 12 80 F.3d at 337–38. A court, however, need not accept conclusory allegations as true. Rather 13 it must “examine whether conclusory allegations follow from the description of facts as 14 alleged by the plaintiff.” Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) 15 (citation omitted). A motion to dismiss should be granted if a plaintiff’s complaint fails to 16 contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 17 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content 18 that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). 20 Because Kominiak proceeds pro se, the Court construes his filings liberally. Hebbe 21 v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The Court, however, cannot “supply essential 22 elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of 23 Alaska, 673 F.2d 267, 268 (9th Cir. 1982). 24 II. DISCUSSION 25 The County argues Kominiak’s FAC fails to state a plausible claim for relief under 26 the Fourteenth Amendment, 42 U.S.C. § 1983, and Title II of the ADA, and does not 27 include a short and plain statement showing he is entitled to relief. Dkt. No. 8. 28 1 A. Kominiak’s Fourteenth Amendment and 42 U.S.C. § 1983 Claims 2 “The Civil Rights Act codified in 42 U.S.C. § 1983 provides a cause of action against 3 state officials who deprive a plaintiff of [his] federal constitutional rights.” Sinclair v. 4 City of Seattle, 61 F.4th 674, 678 (9th Cir. 2023). “Section 1983 does not create any 5 substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by 6 governmental officials.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “To prove 7 a case under section 1983, the plaintiff must demonstrate that (1) the action occurred ‘under 8 color of state law’ and (2) the action resulted in the deprivation of a constitutional right or 9 federal statutory right.” Id. (citation omitted). 10 State and local governments are not vicariously liable under § 1983 for injuries 11 caused by their employees or agents. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 12 692–94 (1978). Instead, a plaintiff may recover under Monell under one of three theories. 13 First, “a local government may be held liable ‘when implementation of its official policies 14 or established customs inflicts the constitutional injury.’” Clouthier v. County of Contra 15 Costa, 591 F.3d 1232, 1249 (9th Cir. 2010), overruled on other grounds by Castro v. 16 County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc) (quoting Monell, 17 436 U.S. at 708). Second, “under certain circumstances, a local government may be held 18 liable under § 1983 for acts of ‘omission,’ when such omissions amount to the local 19 government’s own official policy.” Id. (citation omitted). Third, “a local government may 20 be held liable under § 1983 when the individual who committed the constitutional tort was 21 an official with final policy-making authority or such an official ratified a subordinate’s 22 unconstitutional decision or action and the basis for it.” Id. at 1250 (citation and quotations 23 omitted). 24 The County’s Motion to Dismiss argues Kominiak’s FAC does not plead a viable 25 Monell claim. Assuming, without finding, that Kominiak’s FAC sufficiently alleges a 26 person or persons violated his Fourteenth Amendment right, the Court agrees that it fails 27 to plausibly allege this violation was the product of a County policy or practice. 28 1 The FAC’s only mention of a policy or practice is that the County had a “policy and 2 practice of deferring to the decisions concerning whether a detainee should be transported 3 to medical made by medical staff [sic] who are not in the detainee[’s] presence.” 4 Dkt. No. 5 at 13. Viewed in the context of the FAC’s other allegations, however, this does 5 not plausibly allege that the County had an unconstitutional policy or practice. 6 The FAC alleges that GBDF deputies may: (1) unilaterally refuse to transport a 7 detainee to medical; (2) unilaterally decide to transport a detainee to medical; or (3) consult 8 medical personnel to determine whether a detainee requires medical evaluation. According 9 to the FAC, Kominiak experienced all three. See id. at 6–7 (when Kominiak first 10 complained of ear pain, a “[D]eputy Corporal” responded with incredulity, refused to refer 11 Kominiak to treatment, and ordered him to return to his bunk); id. at 7 (fifteen minutes 12 after the first deputy refused to refer Kominiak to medical, a “[D]eputy Sargeant” ordered 13 that Kominiak be taken to medical, and deputies transported him there within minutes); 14 id. (two deputies contacted medical staff to request further medical evaluation, but medical 15 staff denied their requests); id. at 8 (deputies transported Kominiak to medical ten minutes 16 after his mother called). 17 The Court has found no law holding a policy or practice that: (1) vests deputies with 18 unilateral authority to bring a detainee to medical on their own accord; and (2) also gives 19 deputies the ability to consult with medical professionals about the need for medical 20 evaluation, is unconstitutional. On the contrary, one would reasonably expect that officers 21 (who are not medical professionals) can and should have the ability to consult those trained 22 in the medical arts to determine whether a detainee exhibiting or complaining about certain 23 symptoms should be brought for medical evaluation. Cf. Dobbey v. Liping Zhang, 24 608 F. App’x 406, 408–09 (7th Cir. 2015) (finding no unconstitutional deliberate 25 indifference to serious medical needs when a medical technician declined to dispatch a 26 detainee to the health care unit after discussing the detainee’s non-emergency symptoms 27 over the phone with a corrections officer). 28 1 In sum, the FAC’s allegations that GBDF deputies deferred to medical staff in 2 determining whether to transport Kominiak to medical for a follow-up evaluation of his 3 ear infection does not plausibly allege the County had an unconstitutional policy or 4 practice. The undersigned, therefore, recommends GRANTING the County’s Motion to 5 Dismiss the first (Fourteenth Amendment) and third (42 U.S.C. § 1983) claims in 6 Kominiak’s FAC. Dougherty v. City of Covina, 654 F.3d 892, 900–01 (9th Cir. 2011) 7 (affirming dismissal where “[t]he Complaint lacked any factual allegations regarding key 8 elements of the Monell claims, or, more specifically, any facts demonstrating that his 9 constitutional deprivation was the result of a custom or practice of the City . . . or that the 10 custom or practice was the ‘moving force’ behind [plaintiff’s] constitutional deprivation.”) 11 (citation omitted); Holden, 978 F.2d at 1121 (courts must “examine whether conclusory 12 allegations follow from the description of facts as alleged by the plaintiff.”) (citation 13 omitted). 14 B. Kominiak’s ADA Claim 15 The second claim in Kominiak’s FAC alleges a violation of Title II of the ADA, 42 16 U.S.C. § 12132. Dkt. No. 5 at 12. The FAC, however, does not plead sufficient facts to 17 support a plausible conclusion that Kominiak was disabled, discriminated against, and/or 18 denied services because of a disability. 19 To state a claim under Title II of the ADA, a plaintiff must allege: (1) he is an 20 individual with a disability; (2) he is otherwise qualified to participate in or receive the 21 benefit of some public entity’s services, programs, or activities; (3) he was either excluded 22 from participation in or denied the benefits of the public entity’s services, programs, or 23 activities, or was otherwise discriminated against by the public entity; and (4) such 24 exclusion, denial of benefits, or discrimination was by reason of his disability. 25 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam). 26 Kominiak’s FAC does not allege that he was disabled within the meaning of the 27 ADA. 42 U.S.C. § 12102(1). Instead, the FAC alleges that Kominiak developed an ear 28 infection that caused pain, dizziness, disorientation, loss of appetite, difficulty sleeping, 1 and hearing loss. Dkt. No. 5 at 12. These allegations do not describe a failure to 2 accommodate a disability or disability-based discrimination. Instead, they describe a 3 failure to treat an illness, which may have resulted in a disability (i.e., hearing loss). This 4 is not an ADA case. Simmons v. Navajo Cnty., 609 F.3d 1011, 1022 (9th Cir. 2010) 5 (“The ADA prohibits discrimination because of disability, not inadequate treatment for 6 disability.”), overruled in part on other grounds by Castro, 833 F.3d at 1064; 7 Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he [ADA] would not be violated 8 by a prison’s simply failing to attend to the medical needs of its disabled prisoners . . . . 9 The ADA does not create a remedy for medical malpractice.”). The undersigned, therefore, 10 recommends dismissing the second (ADA) claim in Kominiak’s FAC. 11 C. Kominiak’s Claims Against Sherriff Kelly A. Martinez 12 Although Defendant Sherriff Kelly A. Martinez has not appeared, the undersigned 13 has sua sponte reviewed the FAC’s claims against her and recommends dismissing them. 14 “In order for a person acting under color of state law to be liable under section 1983 15 there must be a showing of personal participation in the alleged rights deprivation . . . .” 16 Jones, 297 F.3d at 934. A plaintiff cannot “hold an officer liable because of his membership 17 in a group without a showing of individual participation in the unlawful conduct.” 18 Id. at 935; see also Cavanaugh v. County of San Diego, No. 3:18-cv-02557-BEN-LL, 19 2020 WL 6703592, at *30 (S.D. Cal. Nov. 12, 2020) (dismissing claims against San Diego 20 Sheriff Gore because plaintiff did not plead personal acts relating to the duties and 21 responsibility as the Sheriff that connected him to the constitutional violations at issue). 22 Kominiak’s FAC does not allege that Sherriff Martinez personally participated in 23 denying medical treatment. The FAC’s only mention of Sheriff Martinez is that she is sued 24 in her personal and official capacities pursuant to 42 U.S.C § 1983. Dkt. No. 5 at 5, 13. 25 The undersigned, therefore, recommends dismissing Sherriff Martinez. 26 D. Leave to Amend 27 Considering Kominiak’s pro se status, the undersigned recommends granting 28 another opportunity to amend his pleading against the County and Sheriff Martinez in her 1 personal capacity. At this stage, it is not clear that Kominiak cannot state a plausible Monell 2 claim against the County or a viable personal capacity claim against Sherriff Martinez. 3 See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not 4 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. § 5 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint could 6 not be cured by amendment.’” (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 7 2012)). 8 The Court, however, recommends dismissing Kominiak’s ADA claim without leave 9 to amend. The facts alleged clearly establish that this case does not implicate the ADA. 10 Any amendment, therefore, would be futile. Chappel v. Lab’y Corp. of Am., 232 F.3d 719, 11 725–26 (9th Cir. 2000) (“A district court acts within its discretion to deny leave to amend 12 when amendment would be futile . . . .”). 13 E. Compliance With Federal Rule of Civil Procedure 4(m) 14 Both Kominiak’s original Complaint (filed on November 12, 2025) and FAC (filed 15 on December 12, 2025) name Doe defendants. However, no Doe defendants have been 16 identified and served. 17 Federal Rule of Civil Procedure 4(m) requires service on all defendants no later than 18 90 days after the complaint is filed. FED. R. CIV. P. 4(m). Otherwise, the court “must 19 dismiss the action without prejudice against that defendant or order that service be made 20 within a specified time.” Id. The 90-day period for service of the Doe defendants has 21 expired. However, considering Kominiak’s pro se status and the challenges he faces as an 22 incarcerated litigant, the undersigned recommends extending the Rule 4(m) deadline for 23 Kominiak to identify and serve any additional defendants by 90 days. See Newman v. 24 Berryhill, No. 3:19-cv-0036-WQH-NLS, 2019 WL 13198260, at *2 (S.D. Cal. Apr. 11, 25 2019) (finding good cause to extend the Rule 4(m) deadline considering plaintiff’s pro se 26 status). 27 The Court also grants Kominiak leave to serve early discovery on the County limited 28 to identifying the Doe defendants. See FED. R. CIV. P. 26(d)(1). 1 The Court encourages Kominiak to review the information on “Representing 2 Yourself in Federal Court (Pro Se)” available on the Court’s website.3 3 III. CONCLUSION 4 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue 5 an Order: 6 (1) APPROVING AND ADOPTING this Report and Recommendation; 7 (2) DISMISSING the 42 U.S.C. § 1983 claim against the County of San Diego 8 WITH LEAVE TO AMEND, and DISMISSING the Fourteenth Amendment 9 claim against the County of San Diego WITHOUT LEAVE TO AMEND;4 10 (3) DISMISSING the ADA claim against all Defendants WITHOUT LEAVE TO 11 AMEND; 12 (4) DISMISSING the personal capacity claims against Sheriff Kelly A. Martinez 13 WITH LEAVE TO AMEND, and DISMISSING the official capacity claims 14 against Sheriff Kelly A. Martinez WITHOUT LEAVE TO AMEND;5 15 16 3 See Representing Yourself in Federal Court (Pro Se), U.S. DIST. CT. S.D. CAL., 17 https://www.casd.uscourts.gov/Prose.aspx [https://perma.cc/YGF6-NQPQ]. 18 4 A litigant who complains of a violation of a constitutional right does not have a cause of 19 action directly under the United States Constitution. Jones, 297 F.3d at 934 (“Section 1983 20 . . . is the vehicle whereby plaintiffs can challenge actions by governmental officials.”); Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) ( “Plaintiff 21 has no cause of action directly under the United States Constitution.”); Rogers v. 22 City of Grover Beach, No. 2:18-cv-10590-PSG-ADS, 2020 WL 5868038, at *2 (C.D. Cal. Aug. 21, 2020) (the “Fourteenth Amendment[] to the United States Constitution do[es] not 23 in and of [itself] create a cause of action, so any claim brought for violation of the . . . 24 Fourteenth Amendment must be brought pursuant to 42 U.S.C. § 1983.”). Thus, Kominiak’s cause of action claiming his Fourteenth Amendment right was violated fails to 25 state a cognizable legal claim and should be dismissed without leave to amend. 26 5 Kominiak cannot bring an official capacity claim against Sheriff Martinez. See Doe v. 27 Lawrence Livermore Nat’l Lab’y, 131 F.3d 836, 839 (9th Cir. 1997) (“[S]tate officials sued 28 in their official capacities are not ‘persons’ within the meaning of § 1983” except when 1 (5) ORDERING Kominiak to accomplish the following no later than ninety days 2 after the adoption and approval of this Report and Recommendation: 3 a. Identify all Doe defendants; 4 b. File a third amended complaint curing the pleading deficiencies identified 5 above and substituting named defendants for Doe defendants; and 6 c. Serve the summons and third amended complaint on all defendants. 7 The undersigned GRANTS Kominiak leave to serve early discovery on the County 8 || limited to identifying Doe defendants. 9 IT IS ORDERED that no later than July 23, 2026, any party may file written 10 || objections to this Report and Recommendation with the Court and serve a copy on all 11 parties. The document should be captioned “Objections to Report and Recommendation.” 12 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 13 || the Court and served on all parties by July 30, 2026. 14 The parties are advised that failure to file objections within the specified time may 15 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan, 16 || 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991). 17 IT IS SO ORDERED. 18 || Dated: July 8, 2026. — 9 Dando oa 0 Honorable Daniel E. Butcher United States Magistrate Judge 21 22 23 24 25 26 “sued for prospective injunctive relief’) (citation omitted). Kominiak is not seeking 27 injunctive relief, and the FAC does not allege any ongoing unconstitutional conduct the 28 || Court could enjoin.