Vindiola v. San Diego County Sheriff's Department et al

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