holding a complaint with conclusory allegations 12 of a municipal policy failed to state a claim because it did not “put forth additional facts 13 regarding the specific nature of this alleged policy, custom or practice”
How later courts described this case
- holding a complaint with conclusory allegations 12 of a municipal policy failed to state a claim because it did not “put forth additional facts 13 regarding the specific nature of this alleged policy, custom or practice”
- “A district court 16 should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 17 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 18 could not be cured by amendment.’”
- noting that claims 13 || dismissed with leave to amend which are not re-alleged in an amended pleading may be 14 || “considered waived if not repled.’’
- stating a due process claim 8 based on inadequate medical car requires “more than negligence but less than subjective 9 intent—something akin to reckless disregard”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 GINO VINDIOLA, Case No.: 3:24-cv-2070-CAB-MSB
CDCR #BR9953,
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ORDER: (1) GRANTING MOTION
Plaintiff,
13 TO PROCEED IN FORMA
vs. PAUPERIS [ECF No. 2];
14
SAN DIEGO COUNTY SHERIFF’S
15 (2) DISMISSING COMPLAINT FOR
DEPARTMENT; ROMO, Corporal;
FAILING TO STATE A CLAIM
16 GONZALEZ, Deputy
PURSUANT TO 28 U.S.C.
17 Defendants. §§ 1915(e)(2)(B) AND 1915A(b)
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20 I. INTRODUCTION
21 Plaintiff Gino Vindiola (“Plaintiff” or “Vindiola”), an inmate proceeding pro se, has
22 filed a civil rights complaint pursuant to 42 U.S.C. § 1983, along with a motion to proceed
23 in forma pauperis (“IFP”). See ECF Nos. 1, 2. In his Complaint, Plaintiff alleges his
24 constitutional rights were violated when Defendants delayed providing him with medical
25 care. See generally, ECF No. 1. For the reasons discussed below, the Court grants
26 Plaintiff’s IFP motion and dismisses the Complaint without prejudice for failure to state a
27 claim.
28 / / /
1 II. MOTION TO PROCEED IFP
2 All parties instituting any civil action, suit or proceeding in a district court of the
3 United States, except an application for writ of habeas corpus, must pay a filing fee of
4 $405.1 See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the
5 required filing fee if the Court grants leave to proceed IFP based on indigency. 28 U.S.C.
6 § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007).
7 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit
8 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th
9 Cir. 2015). Prisoners must also submit a “certified copy of the [prisoner’s] trust fund
10 account statement (or institutional equivalent) for . . . the 6-month period immediately
11 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust
12 account statement, the Court assesses an initial payment of 20% of (a) the average monthly
13 deposits in the account for the past six months, or (b) the average monthly balance in the
14 account for the past six months, whichever is greater, unless the prisoner has no assets. See
15 28 U.S.C. §§ 1915(b)(1) & (4). Prisoners who proceed IFP must repay the $350 statutory
16 fee in installments regardless of whether their action is ultimately dismissed. 28 U.S.C.
17 § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016).
18 In support of his IFP Motion, Vindiola has provided a copy of his prison certificate
19 and trust account statement. ECF No. 3. During the six months prior to filing suit, Estrada
20 had an average monthly balance of $14.89, average monthly deposits of $15.08, and an
21 available account balance of $6.30. Id. at 1. Accordingly, the Court GRANTS Plaintiff’s
22 IFP motion and assesses an initial partial filing fee of $3.02 pursuant to 28 U.S.C.
23 § 1915(b)(1). This initial fee need be collected, however, only if sufficient funds are
24 available in Plaintiff’s account at the time this Order is executed. See 28 U.S.C.
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1 Civil litigants must pay an administrative fee of $55 in addition to the $350 filing fee. See 28
27 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14
(eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave
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1 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a
2 civil action or appealing a civil action or criminal judgment for the reason that the prisoner
3 has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d
4 at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal
5 of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds
6 available to him when payment is ordered.”). The California Department of Corrections
7 and Rehabilitation (“CDCR”) must thereafter collect the full balance of the $350 fee owed
8 and forward payments to the Clerk of the Court as provided by 28 U.S.C. § 1915(b)(2).
9 III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)
10 A. Legal Standards
11 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court must screen a
12 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous,
13 malicious, fails to state a claim, or seeks damages from defendants who are immune. See
14 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson,
15 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has
16 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the
17 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”
18 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a
19 complaint to “contain sufficient factual matter . . . to state a claim to relief that is plausible
20 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
21 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements
22 of a cause of action, supported by mere conclusory statements, do not suffice” to state a
23 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-
24 harmed me accusation[s]” fall short of meeting this plausibility standard. Id.
25 To state a claim under § 1983, a plaintiff must plausibly allege “both (1) deprivation
26 of a right secured by the Constitution and laws of the United States, and (2) that the
27 deprivation was committed by a person acting under color of state law.” Tsao v. Desert
28 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
1 B. Plaintiff’s Allegations
2 In his Complaint, Vindiola alleges that on February 20, 2022, while he was detained
3 at George Bailey Detention Facility (“GBDF”), he was involved in a “mutual combat
4 incident.” ECF No. 1 at 3. After the incident, Vindiola received no medical attention. Id.
5 Shortly thereafter, Vindiola began having chest pains, which he reported to deputies, but
6 his complaints were “ignored” until the “next shift came on.” Id. By that time, Plaintiff was
7 “sweating profusely.” Id. He was taken to “medical” and then sent to the hospital, where it
8 was discovered he had suffered a heart attack. Id. Plaintiff was treated with “stents.” Id. He
9 alleges a doctor told him that if he had been sent to the hospital any later, he “probably
10 wouldn’t have survived.” Id.
11 C. Discussion
12 Plaintiff alleges Defendants San Diego County Sheriff’s Department (“SDCSD”),
13 Corporal Romo and Deputy Gonzalez violated his constitutional right to adequate medical
14 care. See id. He seeks $150,000 in money damages. Id. at 7.
15 1. Legal Standard
16 While not entirely clear, the Court presumes Vindiola was a pretrial detainee, as
17 opposed to a prison inmate, at the time of the alleged incident.2 Claims for violations of the
18 right to adequate medical care brought by pretrial detainees are evaluated under the
19 Fourteenth Amendment’s “objective deliberate indifference standard.” Gordon v. Cnty. of
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2 The incident is alleged to have happened on February 20, 2022, while Vindiola was confined at
24 GBDF (one of San Diego County’s jail facilities) and according to the California Department of
Corrections and Rehabilitation Inmate Locator, Plaintiff entered CDCR custody on April 9, 2022.
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See CDCR Inmate Locator, https://ciris.mt.cdcr.ca.gov/details?cdcrNumber=BR9953 (visited
26 Mar. 3, 2025). See United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial
notice of Bureau of Prisons' inmate locator available to the public); see also Pacheco v. Diaz,
27 2019 WL 5073594 at *2 (E.D. Cal. Sept. 4, 2019) (taking judicial notice of CDCR’s Inmate
Locator system); Foley v. Martz, 2018 WL 5111998, at *1 (S.D. Cal. Oct. 19, 2018) (same).
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1 Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018). Under that standard, detainees must
2 show:
3 (1) The defendant made an intentional decision with respect to the conditions
under which the plaintiff was confined [including a decision with respect to
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medical treatment];
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(2) Those conditions put the plaintiff at substantial risk of suffering serious
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harm;
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(3) The defendant did not take reasonable available measures to abate that
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risk, even though a reasonable official in the circumstances would have
9 appreciated the high degree of risk involved—making the consequences of the
defendant’s conduct obvious; and
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11 (4) By not taking such measures, the defendant caused the plaintiff’s injuries.
12 Id. at 1125; see also Sandoval v. Cnty. of San Diego, 985 F.3d 657, 669 (9th Cir. 2021).
13 2. San Diego Sheriff’s Department
14 While county sheriff’s departments may be sued under § 1983, see Duarte v. City of
15 Stockton, 60 F.4th 566, 573 (9th Cir. 2023), Vindiola has not adequately stated a claim for
16 relief against SDCSD. To state a § 1983 claim against a government entity, Vindiola must
17 allege: (1) he was deprived of a constitutional right, (2) the defendant had a policy, custom,
18 or practice which amounted to deliberate indifference to that constitutional right; and (3)
19 that policy, custom, or practice was the moving force behind the constitutional violation.
20 Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell v. Dep’t of
21 Social Services, 436 U.S. 658, 694 (1978)). Alternatively, a government entity may be held
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24 3 The standard for prison inmates comes from the Eighth Amendment and is more stringent that
that for pretrial detainees. See Gordon, 888 F.3d at 1124–25 (noting that medical care claims
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brought by pretrial detainees arise under the Due Process clause rather than the Eighth
26 Amendment’s Cruel and Unusual Punishment Clause). To state an Eighth Amendment medical
care claim, a prisoner must show the defendant was subjectively deliberately indifferent to his
27 serious medical needs, such that it constituted an “unnecessary and wanton infliction of pain.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976). Thus, a claim that fails under the due process standard
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1 liable if it fails to adequately train staff and “the need for more or different training is so
2 obvious, and the inadequacy so likely to result in the violation of constitutional rights, that
3 the policymakers of the city can reasonably be said to have been deliberately indifferent to
4 the need.” Rodriguez v. City of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018)
5 Here, Vindiola alleges he “received no evaluation from medical per protocol and
6 procedures of the San Diego County Sheriff’s Department.” ECF No. 1 at 3. But it is
7 unclear whether Plaintiff is alleges the failure to evaluate him was contrary to “protocol
8 and procedures” or as a result of them. Moreover, even presuming he alleges the purported
9 delay in treatment was because of a policy, Plaintiff alleges no facts regarding the specific
10 nature of the policy and therefore he fails to state a claim. See Hernandez v. County of
11 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (holding a complaint with conclusory allegations
12 of a municipal policy failed to state a claim because it did not “put forth additional facts
13 regarding the specific nature of this alleged policy, custom or practice”); Iqbal, 556 U.S.
14 at 678 (stating the pleading standard “demands more than an unadorned, the-defendant-
15 unlawfully-harmed-me accusation”). In short, to proceed with such a claim, Plaintiff must
16 set forth factual allegations that identify a custom, policy, or practice and plausibly allege
17 a “direct causal link between a municipal policy or custom and the alleged constitutional
18 deprivation.” Collins v. County of Harker Heights, 503 U.S. 115, 123 (1992). He has failed
19 to do so here. Therefore, the Court DISMISSES Plaintiff’s claim against the San Diego
20 County Sheriff’s Department for failure to state a claim. See 28 U.S.C. §§ 1915(e)(2)(B)
21 and 1915A(b); Iqbal, 556 U.S. at 678.
22 3. Defendants Romo and Gonzalez
23 Vindiola also fails to state a claim against Romo and Gonzalez. While he lists both
24 Romo and Gonzalez as Defendants, Plaintiff fails to reference them in the body of the
25 Complaint. See ECF No. 1 at 2, 3. “A plaintiff must allege facts, not simply conclusions,
26 that show that an individual was personally involved in the deprivation of his civil rights.”
27 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). And here, beyond his vague
28 allegation that “custody deputies” ignored his request for medical care (id.), Vindiola fails
1 to provide specific facts regarding what precisely he told Romo and/or Gonzalez about his
2 condition and when. For instance, he alleges he complained of “chest pains” but does not
3 indicate to whom he directed those complaints. Nor does he specify the length of the
4 purported delay in taking him for medical attention. He merely states unspecified “deputies
5 denied [him] medical care . . . [and he] almost died because of their negligence.” ECF No.
6 1 at 3. These vague allegations are insufficient to state a claim against Romo or Gonzalez.
7 See Iqbal, 556 U.S. at 678; see also Gordon, 888 F.3d at 1125 (stating a due process claim
8 based on inadequate medical car requires “more than negligence but less than subjective
9 intent—something akin to reckless disregard”).
10 Therefore, Vindiola’s claims against Romo and Gonzalez are DISMISSED for
11 failure to state a § 1983 claim. See 28 U.S.C. § 1915(e)(2) and § 1915A; Iqbal, 556 U.S. at
12 678.
13 D. Leave to Amend
14 Given Plaintiff’s pro se statue, the Court GRANTS him leave to amend his
15 Complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court
16 should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.
17 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint
18 could not be cured by amendment.’”) (quoting Akhtar v Mesa, 698 F.3d 1202, 1212 (9th
19 Cir. 2012)).
20 V. CONCLUSION AND ORDER
21 Accordingly, the Court:
22 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2).
23 2. ORDERS the Secretary of the CDCR, or his designee, to collect from
24 Plaintiff’s trust account the $3.02 initial filing fee assessed, if those funds are available at
25 the time this Order is executed, and forward whatever balance remains of the full $350
26 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding
27 month’s income to the Clerk of the Court each time the amount in Phillips’ account exceeds
28 $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY
1 || IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
2 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff
3 || Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by
4 ||U.S. Mail, or by forwarding an electronic copy to trusthelpdesk @cder.ca.gov.
5 4. DISMISSES Plaintiff's Complaint in its entirety to state a claim. See 28
6 ||U.S.C. 8§ 1915(e)(2) and 1915A(b).
7 5. GRANTS Plaintiff sixty (60) days leave from the date of this Order in which
8 ||to file a First Amended Complaint which cures the deficiencies of pleading noted in this
9 || Order. Plaintiff's Amended Complaint must be complete by itself without reference to his
10 original Complaint. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
11 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
12 || original.”’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
13 || dismissed with leave to amend which are not re-alleged in an amended pleading may be
14 || “considered waived if not repled.’’).
15 If Plaintiff fails to timely file a First Amended Complaint, the Court will enter a final
16 || Order dismissing this civil action based both on failure to state a claim upon which relief
17 be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)Gi) and § 1915A(b)(1), and failure to
18 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427
19 || F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does not take advantage of the opportunity
20 fix his complaint, a district court may convert the dismissal of the complaint into
21 || dismissal of the entire action.”).
22 IT IS SO ORDERED.
23 ||Dated: March 7, 2025 € ZL
24
Hon. Cathy Ann Bencivengo
25 United States District Judge
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