Gonzales v. Garcia ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY C. GONZALES, Case No.: 19-cv-0660-GPC-RBM 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS AS TO DEFENDANT FLORES 14 NICHOLE GARCIA and JUAN FLORES, 15 ECF No. 7. Defendant. 16 17 On April 8, 2019, Plaintiff Anthony Gonzales (“Plaintiff”) filed a complaint 18 against Nurses Nichole Garcia and Juan Flores. ECF No. 1. On July 11, 2019, Defendant 19 Flores filed a Rule 12(b)(6) motion to dismiss. ECF No. 7. Plaintiff responded on August 20 5, 2019. ECF No. 14. Based on a review of the papers, the Court finds this matter suitable 21 for adjudication without oral argument pursuant to Local Rule 7.1(d)(1) and GRANTS 22 Defendant’s motion to dismiss Plaintiff’s complaint as alleged against Defendant Flores. 23 Discussion 24 Plaintiff alleges that Nurse Nichole Garcia acted with deliberate indifference in 25 failing to change his bandages on a daily basis, as ordered by his doctors, after he 26 received surgery on his elbow to remove a loose bone fragment. ECF No. 1 at 3-5. 27 Plaintiff alleges that Nurse Garcia’s lack of care caused an infection and various post- 1 surgical complications requiring that Plaintiff be hospitalized. Jd. at 5, 8-59. Plaintiff 2 further alleges that Sr. Nurse Juan Flores is liable for failing to train and supervise Nurse 3 || Garcia to ensure that she would provide adequate medical care to Plaintiff. Jd. at 3-4. 4 Defendant seeks dismissal of Plaintiff's complaint on the basis that Plaintiff failed 5 || to state a claim of supervisory liability. ECF No. 7 at 4. Defendant argues that Plaintiff 6 claims neither that Defendant “directed [Nurse] Gonzales to not change Plaintiff’s 7 || surgical dressings” nor “that he knew of the violations and failed to prevent” Nurse 8 ||Gonzales’s conduct. /d. Plaintiff also does not assert that Defendant “personally 9 || participated” in his mistreatment. Jd. Hence, Defendant requests that the Court find that 10 || Plaintiff failed to state a claim of supervisory liability. /d. at 4-5 (citing Taylor v. List, 11 F.2d 1040, 1045 (9th Cir. 1989)). 12 Plaintiff concedes that Defendant is correct. ECF No. 14. In response to 13 || Defendant’s motion, Plaintiff states that Defendant “did not directly participate in [his] 14 || treatment” and that Defendant was not responsible for Nurse Garcia’s actions. Jd. at □ 1. 15 || Plaintiff asserts that he “wish[es] to continue on with the suit and pursue the claims 16 || against Nichole Garcia.” Id. at § 2. 17 The Court construes Plaintiff's response as stipulating to Defendant’s requested 18 || relief. Consequently, the Court GRANTS Defendant’s Flores motion to dismiss the 19 ||}complaint, but only as alleged against him. See Ladou v. City of Chula Vista, No. 09-CV- 20 || 1438-BEN-NLS, 2010 WL 4868034, at *2 (S.D. Cal. Nov. 22, 2010) (dismissing claim 21 || against Defendant based on Plaintiff's concession). 22 IT IS SO ORDERED. 23 24 Dated: October 15, 2019 <= 26 United States District Judge 27 28