Ciardullo v. County of San Diego et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
VINCENT CIARDULLO,
Plaintiff,
v.
COUNTY OF SAN DIEGO, et. al.,
Defendants.
Case No.: 24-cv-2091-BJC-AHC
ORDER GRANTING IN PART AND
DENYING IN PART COUNTY
DEFENDANTS’ MOTION TO
DISMISS; GRANTING DEFENDANT
WEISS’ MOTION TO DISMISS; AND
DENYING PLAINTIFF’S
SUPPLEMENTAL MOTION FOR
SERVICE BY PUBLICATION
[ECF Nos. 52, 56, 62]
BACKGROUND
Plaintiff Vincent Ciardullo originally filed a complaint on November 11, 2024. ECF
No. 1. 	He filed a First Amended Complaint (“FAC”) on February 17, 2025, asserting
claims under 42 U.S.C. § 1983, including deliberate indifference to serious medical needs,
failure to properly train, failure to properly supervise and discipline, and a cause of action
under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). ECF No.
43. He also asserts claims for violation of the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq. and violation of the Rehabilitation Act, 29 U.S.C. §794(a). 	Id. 	Plaintiff
alleges, while he was in custody and detained at the Vista Detention Facility (“VDF”),
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medical staff failed to provide adequate medical care, leading to him to suffer “repeated
reinjuries” to his right leg, and “an ankle sprain on top of the non-union of his tibia and
broken metal rod.” Id. at 3.1 Plaintiff names the County of San Diego, NaphCare, Peter J.
Freeland, 	Jon 	Montgomery, 	William 	Gore, 	Kelly 	Martinez, 	Anthony 	Ray, 	Serina
Rognlien-Hood, Stacy Thompson, Richard Rhee, Ana Munoz, Nas Rafi, Emily Mims, Anil
Kumar, Samantha Macanlalay, Justin Weiss, Helen Breeler, Christine Sullivan, Nicolaus
Rosete, Yaowaluck Hagg, Leah Gache, Pooja Mittal, Juancho Trinidad, Bruce Pastner,
Ellen Tanacio, Andrea Medina, Donato Preche, Silva Suaking, Wenyan Boyd, Yvonne
Arce, and Jessica Flores as defendants.
On February 28, 2025, Defendant Naphcare and Defendant Correctional Healthcare
Partners filed separate motions to dismiss. 	ECF Nos. 48, 51. 	Defendants Arce, Boyd,
County of San Diego, Flores, Gache, Gore, Hagg, Kumar, Macanlalay, Martinez, Medina,
Mittal, 	Montgomery, 	Munoz, 	Rognlien-Hood, 	Suaking, 	and 	Tanacio 	(“County
Defendants”) filed a motion to dismiss, pursuant to Federal Rule of Civil Procedure
12(b)(6), on March 3, 2025. ECF No. 52. On March 11, 2025, Defendant Weiss filed a
motion to dismiss pursuant to Rule 12(b)(6). ECF No. 56. Plaintiff filed a response to the
motions on April 19, 2025. 	ECF No. 59. 	On May 3, 2025, Plaintiff filed a motion for
service by publication. ECF No. 62. Defendants filed replies in support of their motions
to dismiss. ECF Nos. 63-66.
On September 10, 2025, this Court filed an order Granting Defendant Naphcare’s
motion to dismiss and granting in part Defendant Correctional Health Partner’s motion to
dismiss. ECF No. 67. Although the Court provided Plaintiff an opportunity to amend to
address the deficiencies noted, Plaintiff did not amend the FAC.
///
///
1 Page numbers refer to those generated by the CM/ECF system.
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DISCUSSION
I. Motions to Dismiss
A. Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain
sufficient facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” 	Id. 	The allegations must be construed in the light most
favorable to the plaintiff. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th
Cir. 2009). 	While a court must take all factual allegations in the complaint as true, it is
“not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). 	“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
In resolving the motion, the court does not weigh evidence, evaluate witness credibility, or
consider the likelihood that a plaintiff will prevail at trial. Bell v. Twombly, 550 U.S. 544,
556. The Court may consider the facts alleged in the complaint and documents attached to
the complaint, when ruling on a motion to dismiss. 	Lee v. City of Los Angeles, 250 F.3d
668, 688-89 (9th Cir. 2001).
B. County Defendants
County Defendants argue the FAC should be dismissed for failure to state a claim
because (1) the allegations are insufficient to support a claim of deliberate indifference to
Plaintiff’s serious medical needs; (2) the Monell claim also fails because Plaintiff cannot
establish deliberate indifference; and (3) there are insufficient allegations to maintain
claims for failure to train and failure to supervise.
1. Deliberate Indifference Cause of Action
Defendants argue the FAC fails to allege facts to show that the individual defendants
acted with deliberate indifference to Plaintiff’s medical needs. In his opposition, Plaintiff
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agrees Defendants Kumar, Macanlalay, Boyd, Rodriguez, Gache, Lebbin 2, Tanacio,
Medina, Arce, Suaking, and Flores may be dismissed without prejudice. 	Additionally,
Plaintiff agrees the first cause of action for deliberate indifference may be dismissed as to
Defendants Gore, Martinez and Rognlien-Hood. ECF No. 59 at 1-2, 50.
Plaintiff does not indicate whether he agrees to dismissal of Defendant Hagg.
However, he asserts no argument in opposition to Defendants’ request to dismiss the action
against Defendant Hagg, and his only allegation regarding Defendant Hagg’s conduct is
that Defendant Hagg “provided Mr. Ciardullo with an ice pack and noted on records,
“[a]mbulate antalgic gait to the R leg, using cane.” 	ECF No. 43 ¶ 67. 	“[D]eliberate
indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton
infliction of pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97,
104-05 (1976) (internal citation omitted). The FAC does not allege Defendant Hagg acted
with deliberate indifference to Plaintiff’s medical needs. 	Accordingly, the motion is
granted as to the first cause of action for all County Defendants.
2. Monell Cause of Action
County Defendants argue Plaintiff does not allege conduct that rises to the level of
deliberate indifference or that any alleged policies were a moving force in delaying follow-
up care or surgery. ECF No. 52-1 at 22. They contend Plaintiff attempts to allege a pattern
and practice of staff ignoring medical needs, but they argue Plaintiff does not allege how
that specific policy resulted in disregarding his medical needs. Id. at 23.
Plaintiff argues the FAC sufficiently alleges he was deprived of adequate medical
care. ECF No. 59 at 25. 	He further contends the FAC details other civil actions brought
by former inmates and detainees who suffered from inadequate medical care, and whose
medical issues and suffering were compounded by inadequate care from jail staff. 	Id. at
25. He maintains the only plausible inference from the allegations is that the County has a
2 Erroneously named as Pooja Mittal in the FAC. ECF No. 52-1 at 16.
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policy, custom, and practice of shortchanging medical services to people entrusted to its
care. Id. Additionally, he maintains the FAC alleges facts showing the absence of policies
that would ensure adequate care in providing walking devices, giving inmates appropriate
palliative care, making safety devices available for bathing, or making timely referrals and
appointments with outside providers. 	Id. at 26. 	Plaintiff further argues the FAC pleads
sufficient allegations to support the inference that the County’s longstanding policy,
custom, and practice is the “moving force” behind his deprivation of adequate care.
Specifically, he contends the allegations support that he would not have experienced
immense pain but for the failures of medical staff to give him devices to keep weight off
his leg, ice, a bone stimulator, prescribed anti-infection medicine or a timely referral for
surgery. Id.
A municipality cannot be held vicariously liable for the acts of its employees under
§ 1983, but may be held liable for a civil rights violation caused by a policy, custom or
practice. Monell, 436 U.S. at 691. To properly state a Monell claim, a plaintiff must allege
facts demonstrating: “(1) that he possessed a constitutional right of which he was deprived;
(2) that the municipality had a policy; (3) that this policy ‘amounts to deliberate
indifference’ to the plaintiff’s constitutional right; and (4) that the policy is the ‘moving
force behind the constitutional violation.’” 	Oviatt By & Through Waugh v. Pearce, 954
F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389-91
(1989)); 	see 	also 	Monell, 	436 	U.S. 	at 	690-91. 	A 	policy 	amounts 	to 	“deliberate
indifference” when the need for more or different action “is so obvious, and the inadequacy
[of the current procedure] so likely to result in the violation of constitutional rights, that
the policy makers of the city can reasonably be said to have been deliberately indifferent
to the need.” 	City of Canton, 489 U.S. at 389. “[A] claim of municipal liability under
Section 1983 is sufficient to withstand a motion to dismiss ‘even if the claim is based on
nothing more than a bare allegation that the individual officers’ conduct conformed to
official policy, custom, or practice.’” Galbraith v. County of Santa Clara, 307 F.3d 1119,
1127 (9th Cir. 2002) (quoting Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621,
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624 (9th Cir. 1988)).
Plaintiff alleges, on or about November 6, 2022, he fractured his “right leg (tibia)”
and had surgery to correct the fracture on November 17, 2022. ECF No. 43 ¶¶ 29-30. On
or about November 30, 2022, Plaintiff was arrested in connection with a probation
violation, booked into VDF, and later sentenced to two years in county jail. Id. ¶¶ 31-32.
During the course of his arrest, Plaintiff alleges that his girlfriend notified an officer of his
injuries and provided him with Plaintiff’s medical records. Id. ¶ 33. Plaintiff also alleges
that he notified Defendants Kumar, Rodriguez, and Thompson of his leg injury as part of
his intake process, and notes of his condition were added to his medical record. 	Id. ¶ 34.
Additionally, Plaintiff alleges VDF obtained his medical records regarding his leg injury.
Id. ¶ 36. Despite letting VDF staff know of his injury, Plaintiff alleges that there was “no
written plan to provide care” based on his medical needs, which violated California Code
of Regulations, Title 15 § 1207. 	Id. ¶¶ 37–38. 	From November 30, 2022 to March 14,
2023, Plaintiff was placed in medical housing and provided a walker. 	Id. ¶ 46. Plaintiff
was seen by medical staff several times from December 7, 2022 through March 4, 2023.
Id. ¶¶ 40-45. 	On March 2, 2023, Plaintiff went to HCH Physical Therapy for a physical
therapy appointment and was advised to see an orthopedic surgeon. 	Id. ¶ 44. 	Plaintiff
alleges this recommendation and treatment notes from this appointment were provided to
VDF. Id. On March 4, 2023, Defendant Boyd conducted an ADA Function Performance
Test on Plaintiff and noted that Plaintiff needed “assistance with walking, mobility, and
bathing.” Id. ¶ 45.
On March 14, 2023, Plaintiff was released from medical housing and put in general
population, and Plaintiff complained that he still had pain and mobility issues. 	Id. ¶ 47.
Plaintiff alleges that while in general population from March 2023 to April 2023, he was
not provided any walking aids or accessible shower facilities despite continually requesting
them. Id. ¶¶ 48, 51. Without the use of any aid for walking and standing, Petitioner alleges
he placed weight on his leg, causing pain and swelling. Id. ¶ 49. He made sick-call requests
for pain, swelling, and to seek a cane and ice packs. ¶¶ 48, 53-55. During a sick-call visit
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on March 26, 2023, Plaintiff explained he believed his leg was rebroken, but the nurse did
not refer him for an x-ray. Id. ¶ 56. During a visit with Defendant Rafi on March 27, 2023,
Plaintiff alleges he complained about immense pain. Id. ¶ 57 	Plaintiff further alleges the
doctor ignored his pain, noted there was no medical indication for cane or ice packs, and
ordered an x-ray. 	Id. On March 29, 2023, Defendant Rafi ordered an additional lab and
noted that Plaintiff’s surgery hardware was in place. 	Id. ¶ 58. 	On April 22, 2023, an
additional exam was conducted by Defendant Rosete, who confirmed that the hardware
placed in Plaintiff’s leg during his surgery had broken. Id. ¶ 60.
Sometime in May 2023, Plaintiff slipped and fell in the shower. Id. ¶ 66. Plaintiff
was taken to University of California, San Diego Health (“UCSD”), where medical staff
confirmed Plaintiff’s surgery hardware was broken and stated that he would require an
additional surgery. Id. ¶ 69. Plaintiff alleges that even after being on notice that the surgery
hardware in his right leg was broken, he was placed back into general population without
walking assistive devices. Id. ¶¶ 65, 70. Plaintiff alleges he made several sick-call requests
complaining that his leg was broken and that he was in pain. Id. ¶¶ 67, 68, 71, 72, 74, 77-
79. Plaintiff believes that VDF’s delay in treating him was due to VDF failing to request
Plaintiff’s medical records from UCSD. Id. ¶ 82.
On July 18, 2023, Plaintiff was admitted to UCSD and had surgery to repair his leg.
Id. ¶ 86. On August 4, 2023, Plaintiff returned to VDF, where medical staff failed to follow
postoperative instructions, including failing to provide him with required antibiotic
medications. Id. ¶ 89. 	He alleges VDF has no policy on the administration of medication
prescribed by an outside hospital, and the lack of policy led to the unconstitutional conduct
of denying him prescribed antibiotics. 	Id. ¶ 93. 	On August 9, 2023, Plaintiff alleges he
was seen at Temecula Valley Hospital, which confirmed his surgical wound was infected.
Id. ¶ 94.
Plaintiff alleges the County had a policy and practice of failing to order diagnostic
testing and failing to refer incarcerated individuals to specialists when medically necessary.
Id. ¶ 161. Specifically, Plaintiff alleges the County fails to adequately train staff as to when
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and under what circumstances to order diagnostic testing, and the policies for referrals to
specialists are inadequate. Id. Plaintiff also alleges the County lacked a policy and practice
to ensure that contracted individual providers were exercising appropriate skill and care.
Id. ¶ 164. Because there was no policy or procedure requiring referral to a specialist when
a broken bone or broken hardware is detected through an x-ray, Plaintiff alleges he was left
to suffer for almost two months until he was taken to UCSD, at which time the specialist
determined he needed surgery. Id. ¶¶ 166, 175. Additionally, Plaintiff asserts the County
also fails to provide adequate medical follow-up treatment to incarcerated people when
they return to custody from receiving outside medical specialists. Id. ¶¶ 177, 182.
The Court finds Plaintiff sufficiently alleges he possessed a constitutional right to
adequate medical care of which he was deprived. He alleges he had surgery only 13 days
before being in custody at VDF and needed an orthopedic follow-up and assistance with
walking, mobility, and bathing, but he was moved to general population without walking
aids or shower assistance. 	Additionally, Plaintiff alleges he made several sick calls
regarding the pain he was experiencing due to the lack of mobility aids and after slipping
in the shower, but Defendants kept him in general population without walking assistive
devices. He also alleges Defendants failed to provide prescribed antibiotics post-surgery.
Plaintiff also sufficiently alleges the county lacked policies for diagnostic testing and
referrals to specialists and providing follow-up care after an incarcerated person receives
treatment from outside specialists. The allegations show that the lack of policies resulted
in him rebreaking his leg and having to endure extreme pain as his treatment was delayed.
Additionally, his allegations demonstrate the lack of policy regarding follow-up treatment
resulted in his infection. Plaintiff also alleges County Defendants should have been aware
that the lack of policies would result in serious injury as demonstrated by the harm caused
to other incarcerated individuals. 	See ECF No. 43 170-181. 	Accordingly, Plaintiff
sufficiently states a Monell claim against the County. The motion to dismiss is denied as
to the second cause of action.
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3. Failure to Train Cause of Action
Defendants argue Plaintiff’s FAC fails to state a viable claim against Defendants
Gore, Martinez, Montgomery, and Rognlien-Hood for failure to train. ECF No. 52-1 at 24.
They maintain Plaintiff alleges that Defendants Gore and Martinez failed to maintain
adequate and proper training necessary to educate medical staff, but they were sheriffs, not
individuals with medical knowledge and have no personal involvement in training medical
staff. Id. Additionally, County Defendants contend Sheriff Gore retired before the events
giving rise to this lawsuit. County Defendants also argue Plaintiff fails to provide facts to
demonstrate Rognlien-Hood’s and Montgomery’s personal involvement in failing to
provide medical training to the specific nurses and county employees working at VDF. Id.
They further argue that there are no facts that demonstrate a causal link between Rognlien-
Hood and Montgomery, and their alleged failures to train. Id. 	Specifically, they argue
Plaintiff cannot provide facts as to what training did not occur, and how Defendants
Rognlien-Hood and Montgomery were personally linked to any alleged training failures.
Id. at 24-25.
Plaintiff argues Defendants are properly sued in their capacity as individuals
possessing supervisory powers over the untrained medical staff whose conduct amounted
to the denial of adequate care. ECF No. 59 at 35. He contends County Defendants frame
the issue incorrectly. 	Id. 	He maintains the FAC sufficiently alleges that Defendant
Rognlien-Hood, as the Director of Nursing, failed to maintain adequate and proper training
for the staff. 	Id. at 36. Plaintiff further argues the failure to provide him care for months
demonstrates staff was not properly trained on how to evaluate and address his medical
needs. Id.
Plaintiff also argues Defendant Montgomery, the Chief Medical Officer, was
responsible for overseeing the Medical Services Division at the jail and for “development
and implementation of quality assurance” and supervising all medical staff. 	Id. at 37.
Plaintiff contends the reasonable inference to be drawn from the failure to provide Plaintiff
with adequate medical care on several occasions is that Defendant Montgomery, who was
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responsible for the medical program, failed to ensure the staff had adequate training that
would have avoided the pain and complications that Plaintiff endured. Id. at 37-38.
Plaintiff further argues Defendants Gore and Martinez, as the leaders of the Sheriff’s
Office with ultimate authority over operation of the jails, failed to provide a training
program for medical staff. 	Id. at 38-39. 	He maintains the history of inadequate care
received at the jails show that they did not implement, or require implementation of,
appropriate training to safeguard the constitutional rights and ensure the adequate care of
inmates. Id. at 39.
A supervisor may be held liable for failure to train if the plaintiff shows “that the
official was ‘deliberately indifferent to the need to train subordinates, and the lack of
training actually caused the constitutional harm or deprivation of rights.’” Hyde v. City of
Willcox, 23 F.4th 863, 874 (9th Cir. 2022) (quoting Flores v. Cnty. of L.A., 758 F.3d 1154,
1159 (9th Cir. 2014)). To properly state a claim, the plaintiff must allege facts to show that
the official disregarded the known or obvious consequence that lack of a particular training
program would cause employees to violate individuals’ constitutional rights. Id. (quoting
Connick v. Thomspon, 563 U.S. 51, 61 (2011)).
Plaintiff alleges Defendants Gore and Martinez served as the Sheriff, at different
times relevant to the FAC, with the responsibility of “overseeing all assistant sheriffs,
commanders, directors, and executive staff of the San Diego County Sheriff’s Office,
which includes those staff tasked with overseeing operations at VDF.” 	ECF No. 43 ¶ 5.
He also alleges Defendant Rognlien-Hood was the Director of Nursing for the Sheriff’s
Office, and, in that capacity, she was responsible for overseeing all nursing staff at the
Sheriff’s Office facilities, including VDF. Id. ¶ 6. He alleges Defendant Montgomery was
the Chief Medical Officer for the Sheriff’s Office and was responsible for overseeing the
Medical Services Division at the San Diego County Jail, including the “development and
implementation of quality assurance and utilization review policies and procedures.” Id. ¶
13. Plaintiff alleges Defendants Gore, Martinez, Rognlien-Hood and Montgomery failed
to train staff when it is appropriate to refer individuals to outside providers, when
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diagnostic testing is required, and when diagnostic testing reveals conditions that require
surgical repair. Id. ¶¶ 193, 194. He also alleges Defendants were aware this training was
necessary to avoid serious injuries based upon the harm caused other incarcerated
individuals when staff failed to refer them to outside providers or for diagnostic testing.
Id. ¶¶ 193, 198. As a result of their failure to properly train staff, Plaintiff alleges he was
provided inadequate medical care and suffered a serious injury, months of unnecessary
pain, and an infection. 	Id. ¶¶ 194, 197, 199, 202, 205-207. 	Plaintiff’s allegations show
Defendants knew incarcerated individuals had been harmed as a result of inadequate
training in the past, they disregarded the obvious risk of harm to other incarcerated
individuals by failing to provided appropriate training, and the lack of training resulted in
Plaintiff’s injury. The Court finds Plaintiff sufficiently alleges a claim for failure to train
against Defendants Montgomery, Rognlien-Hood, Gore and Martinez. 	The motion to
dismiss is denied as to this claim.
4. Failure to Supervise and Discipline Cause of Action
County Defendants argue Plaintiff’s failure to supervise and discipline claim fails to
provide specific facts regarding personal involvement of the County, Gore, Martinez,
Rognlien-Hood, or Montgomery. ECF No. 52-1 at 25. They further argue the claim relies
wholly on a National Commission on Correctional Healthcare (“NCCHC”) report. 	Id.
They maintain Plaintiff does not and cannot allege that NCCHC standards create a
constitutional floor, and the FAC fails to allege facts regarding the constitutional standards.
Id. Additionally, they argue Plaintiff does not provide facts to indicate who or which entity
is directly responsible for supervising Defendants Weiss and Rhee, and Plaintiff fails to
provide sufficient facts to indicate their acts rise to the level of deliberate indifference. Id.
at 25-26.
Plaintiff 	argues 	Defendants 	Rognlien-Hood 	and 	Montgomery 	were 	principal
medical officials with responsibility over the nursing staff and medical-care operation for
the jails. 	ECF No. 59 at 42. 	He maintains, as trained medical professionals, they
understood that inadequate care could result in harm to an inmate, they were aware of the
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multiple different lawsuits brought by inmates alleging inadequate care, and they were
likely aware of the deficiencies identified by the NCCHC. Id. at 42-43. Plaintiff contends
the FAC alleges no actual supervision or discipline ever occurred as the “Responsible
Health Authority” for the jail was rarely onsite. 	Id. at 43. He further contends the FAC
alleges that Defendant Thompson exercised the most authority of the nurses who provided
treatment to Plaintiff, and there is no indication that anyone was supervising her or that she
had ever been disciplined for her mistreatment of Plaintiff. 	Id. 	Plaintiff asserts the
allegations provide that the County, and the supervisory defendants failed to implement
supervision that would have avoided the harms he suffered. Id.
Under § 1983, a supervisor can be held liable in his or her individual capacity if (1)
the supervisor was “person[ally] involve[d] in the constitutional deprivation,” or (2) there
is a “sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation.” Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989).
In support of his claim for failure to supervise and discipline, Plaintiff alleges the
“Responsible Health Authority” was not onsite weekly as recommended by the NCCHC.
ECF No. 43 ¶ 210. 	Plaintiff also alleges Defendants “condoned and acquiesced in the
abusive behavior of their subordinates by refusing to retrain them, discipline them, or
correct their abusive behavior.” Id. ¶ 215. Additionally, Plaintiff alleges Defendants were
aware, or should have been aware, that the inadequate policy regarding supervision and
discipline of those violating inmates’ civil rights was so obvious that it would result in
additional incidents of lawless conduct by Defendants’ subordinates. Id. ¶ 216. He asserts
the failure to supervise and discipline were the moving forces behind the inadequate
medical care, and the pattern of failing to investigate staff misconduct led to him receiving
inadequate medical care. 	Id. ¶¶ 217-218. He further alleges Defendants Gore, Martinez
and Ray were aware of the failures but took no action, and Defendant Martinez refused to
provide access to County investigations of misconduct. 	Id. ¶¶ 219, 220. 	Plaintiff also
alleges the County failed to properly supervise Defendants Weiss and Rhee, who failed to
identify that Plaintiff’s tibia did not heal correctly and the steel rod implant broke when
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they reviewed x-rays of his leg. Id. ¶ 221. He further alleges that had the County conducted
any appropriate supervision, they would have learned of the “incompetence” and would
have alerted Defendants to the fact Defendant Rhee used the National Provider Index
number of another radiologist. 	Id. He further alleges when UCSD medical professionals
recommended corrective surgery, Defendant County of San Diego should have disciplined
them but failed to do so. Id. Plaintiff further alleges Defendants’ failure to investigate led
to the misconduct by medical staff and was the moving force behind the inadequate medical
care provided. Id. ¶¶ 223-225. The FAC is devoid of specific non-conclusory allegations
showing the personal involvement of Defendants Gore, Martinez, Rognlien-Hood, or
Montgomery in failing to supervise and discipline. Accordingly, the motion to dismiss is
granted as to this claim.
B. Defendant Weiss’ Motion
Defendant Weiss seeks dismissal of the FAC for failure to allege sufficient facts to
state a claim for deliberate indifference against him. Specifically, he argues the allegations
do not show that he denied, delayed, or intentionally interfered with Plaintiff’s medical
treatment. 	ECF No. 56 at 9. 	He further argues any allegation that Plaintiff should have
received additional or different treatment is insufficient to support a claim under the Eighth
Amendment. Id.
In opposition, Plaintiff argues the FAC alleges Defendants Weiss and Rhee, medical
professionals with experience in radiology, missed that he reinjured his leg despite
Plaintiff’s complaints of extraordinary pain and the fact it was swollen with a lump at the
surgery site. ECF No. 59 at 22. He further argues the FAC alleges his condition worsened
over the course of his time at VDF, but Defendant Weiss repeatedly signed off on studies
of his leg that likely showed its worsening condition. 	Id. 	He maintains the allegations
support the inference that Defendant Weiss did not care to review the studies or to
outsource his work to a doctor capable of doing the job. Id.
A plaintiff alleging deliberate indifference must first “show a serious medical need
by demonstrating that failure to treat a prisoner’s condition could result in further
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significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439
F.3d 1091, 1096 (9th Cir.2006) (citing Estelle, 429 U.S. at 104) (internal quotation marks
omitted). Second, he “must show the defendant’s response to the need was deliberately
indifferent.” Id. This second prong “is satisfied by showing (a) a purposeful act or failure
to respond to a prisoner’s pain or possible medical need and (b) harm caused by the
indifference.” Id.
In the FAC, Plaintiff alleges Defendant Weiss, a doctor at VDF, provided radiology
services to Plaintiff. ECF No. 43 ¶¶ 7, 10. Defendant Weiss signed off on lab results on
December 25, 2022, January 10, 2023, January 29, 2023, and March 29, 2023. Id. ¶¶ 41-
43, 58. Plaintiff asserts Defendant Weiss did not review the x-rays and related radiology
materials appropriately, which resulted in the failure to identify issues in Plaintiff’s leg. Id.
¶ 154. 	He alleges Defendant Weiss failed to identify a single issue with his leg, which
contributed to Plaintiff receiving no appropriate care from VDF staff. Id.
Plaintiff sufficiently alleges a serious medical need based upon his significant pain
and that he rebroke his leg. However, Plaintiff’s allegations regarding Defendant’s Weiss’
review of the radiology materials demonstrate Defendant Weiss potentially engaged in
negligent misdiagnosis. Negligence in diagnosis and treatment is not sufficient to state a
claim for deliberate indifference. Estelle, 429 U.S. 97, 106 (1977) (“[m]edical malpractice
does not become a constitutional violation merely because the victim is a prisoner.”). The
allegations do not support Defendant Weiss knew of and disregarded an excessive risk to
his health. 	Accordingly, Plaintiff fails to state a claim against Defendant Weiss, and the
motion to dismiss is granted.
II. Motion for Service by Publication
In an order filed on April 25, 2025, this Court denied Plaintiff’s motion to permit
service by publication and substitution on Defendant Rhee without prejudice. ECF No. 61.
The Court found Plaintiff satisfied the due diligence requirement for service by publication
but determined Plaintiff failed to demonstrate the existence of a claim. 	Id. at 3, 4; CAL .
CIV. P ROC. CODE § 415.50(a).
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In his renewed motion to serve Defendant Rhee by publication, Plaintiff provides
the sworn statement of Caitlin Ashton, a licensed private investigator to support the
existence of a claim. Ms. Ashton attests to reviewing Plaintiff’s medical records from the
Sheriff’s Office, investigating Defendant Rhee’s whereabouts and interviewing Defendant
Weiss and Plaintiff. 	ECF No. 62; 62-1. 	Plaintiff contends the Court can conclude that
Plaintiff had a “serious medical need” and there is a plausible basis to believe Dr. Rhee
demonstrated deliberate indifference. ECF No. 62 at 4, 5. He maintains the facts set forth
in Ms. Ashton’s declaration show that Defendant Rhee did not note that the hardware in
Plaintiff’s leg had broken, identified no issues on the x-ray, and misappropriated the
National Provider Index number of another doctor with the same name. Id.
The Federal Rules of Civil Procedure allow service of process as permitted by “state
law for serving a summons in an action brought in courts of general jurisdiction in the state
where the district court is located or where service is made.” 	FED. R. CIV. P. 4(e)(1).
California permits service by publication “if upon affidavit it appears to the satisfaction of
the court in which the action is pending that the party to be served cannot with reasonable
diligence be served in another manner specified in” Article 3 of the California Code of
Civil Procedure. C AL . CIV . P ROC. CODE § 415.50(a). In addition to a showing of diligence,
California law requires a party seeking service by publication to show that “[a] cause of
action exists against the party upon whom service is to be made” or “[t]he party to be served
has or claims an interest in real or personal property in this state that is subject to the
jurisdiction of the court or the relief demanded in the action consists wholly or in part in
excluding the party from any interest in the property.” CAL . CIV. P ROC. CODE 	§
415.50(a)(1)-(2).
Plaintiff relies solely on the declaration of Ms. Ashton who attests to reviewing
Plaintiff’s medical records. 	In her declaration, Ms. Ashton notes that Defendant Rhee
evaluated an x-ray on June 16, 2023, and observed “[d]istal tibial and fibular fixation
hardware” but identified no issues with the bones or tissues. ECF No. 62-1. There is no
additional information on Defendant Rhee’s conduct surrounding Plaintiff’s treatment.
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This single interaction does not sufficiently demonstrate a “cause of action” exists against
Defendant Rhee for purposes of establishing that the Court has jurisdiction over this matter
to issue an order granting Plaintiffs’ motion to effect service by publication. Accordingly,
Plaintiff’s motion is denied.
CONCLUSION AND ORDER
Based on the foregoing, the Court GRANTS IN PART AND DENIES IN PART
County Defendants’ motion to dismiss. The motion is GRANTED as to the first cause of
action for deliberate indifference and the fourth cause of action for failure to supervise and
discipline. 	The motion is otherwise DENIED. 	Defendant Weiss’ motion to dismiss is
GRANTED. 	Plaintiff may file an amended complaint addressing the noted deficiencies
on or before April 17, 2026. Plaintiff’s renewed motion to permit service by publication
is DENIED.
IT IS SO ORDERED.
Dated: March 25, 2026
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