The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER
This case originates from an unfortunate event. Scott Hernandez, the father of Plaintiff C.L.C., committed suicide on October 2, 2010, while in the custody of Defendant Idaho Department of Corrections (the "Department"). Plaintiffs C.L.C. and Mary Cusack, the personal representative for Mr. Hernandez's estate, assert three causes of action: (1) violation of civil rights under 42 U.S.C. § 1983 against all of the named individual Defendants; (2) professional malpractice/wrongful death against Defendants Vicki Hansen, John/Jane Does, and the Department, and (3) negligence/wrongful death against Defendants Hansen, John/Jane Does, and the Department. Compl. (Dkt. 1).
Pending before the Court is Defendants' Partial Motion to Dismiss (Dkt. 4), seeking (1) to dismiss Plaintiffs' state law claims (Counts Two and Three) for failure to post a bond, see Idaho Code Section 6-610,*fn1 and (2) for the Court to strike Plaintiffs' prayer for non-economic and punitive damages. Also pending is Plaintiffs' Motion to Waive or Set Bond and to Appoint Guardian ad Litem for Plaintiff C.L.C., a minor. (Dkt. 8).
PRELIMINARY MATTER -APPOINTMENT OF GUARDIAN
Defendants do not oppose the appointment of a guardian ad litem, but do oppose the motion to waive bond as untimely. (Dkts. 13 & 14).
Plaintiffs' counsel requests that the Court appoint as guardian Mary Cusack, an attorney who is the named plaintiff in this action, and the personal representative of the Scott Hernandez estate. Federal Rule of Civil Procedure 17(c)(2) provides that a "minor . . . who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem," and that "[t]he court must appoint a guardian ad litem-or issue another appropriate order-to protect a minor or incompetent person who is unrepresented in an action."
Although there is no objection to the request, there is little to no information in the record about Ms. Cusack's qualifications and her willingness to serve as guardian for C.L.C. The Court must, however, make some independent scrutiny as to the appropriateness of the requested appointment, and the qualifications of the person proposed to act as Guardian to fulfill those responsibilities. Accordingly, the Court will reserve ruling on the request to appoint Mary additional information requested by the Court at the hearing on this matter.*fn2
According to Plaintiffs' Complaint, Mr. Hernandez had a documented history of mental illness, suicide attempts, and suicide ideation in his clinical record and Department file before he committed suicide. Compl. ¶ 20. Plaintiffs contend that Defendant Hansen and the Defendant Does knew or should have known of Mr. Hernandez's suicidal tendencies or mental illness, yet let Mr. Hernandez remain in his cell without adequate supervision, with tools or implements they knew or reasonably should have known could be used for suicide, and did so knowing that other inmates were threatening him and verbally assaulting him. Compl. ¶¶ 22, 25.
In connection with the state law claims in Counts Two and Three, Plaintiffs allege that Defendant Hansen, a resident mental health clinician with the Department, and the Doe Defendants, breached their duties to provide reasonable mental health treatment to Mr. Hernandez, and to refer him to an appropriate care provider. Compl. ¶¶ 39-41. Plaintiffs also assert that the Department is liable under the doctrine of respondeat superior and the Idaho Tort Claims Act. Compl. ¶ 49.
As Plaintiffs point out, the Ninth Circuit Court of Appeals recently ruled that Federal Rule of Civil Procedure 12(f) "does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 975 (9th Cir. 2010). However, such an argument appears to be the basis for Defendants' motion to strike in the instant case. The Court addressed this issue during oral argument and counsel for both sides agreed that the Court could properly consider the motion to strike certain damages from the Complaint as a Rule 12(b)(6) motion to dismiss. Indeed, both parties fully briefed the issue of whether certain damages are available to Plaintiffs as a matter of law, and were allowed to file supplemental briefs on the issue. Therefore, the Court will consider Defendants' motion under Rule 12(b)(6), which also is the basis for their requested dismissal for failure to post a bond.
A Rule 12(b)(6) motion to dismiss tests the threshold sufficiency of a plaintiff's claim for relief. The relevant inquiry is whether the plaintiff's allegations are sufficient under Rule 8(a), which requires that the plaintiff provide a "short and plain statement of the claim showing that the pleader is entitled to relief," and "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
When reviewing a motion to dismiss, the court must accept as true all non-conclusory, factual (not legal) allegations made in the complaint, Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950 (2009); Erickson v. Pardus, 551 U.S. 89 (2007), and draw all reasonable inferences in favor of the plaintiff, Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949 (9th Cir. 2009). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). In addition, "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555. In sum, dismissal may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
As a general rule, the Court may not consider any evidence contained outside the pleadings without converting the motion to one for summary judgment. See Fed. R. Civ. P. 12(b); United States v. Ritchie, 342 F.3d 903, 907--908 (9th Cir. 2003). "A court may, however, consider certain materials--documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice--without converting the motion to dismiss into a motion for summary judgment." Id. at 908 (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. ...