Cusack v. Reinke et al

Filing 26

MEMORANDUM DECISION AND ORDER granting in part and denying in part 4 Motion to Dismiss. Any supplemental information to support the guardianship request shall be filed with the Court on or before March 14, 2012. A telephone scheduling conference is hereby set for March 7, 2012 at 1:15 p.m. (MST). Plaintiffs counsel shall initiate the conference call and connect opposing counsel and the Court at [phone]. On or before February 29, 2012, counsel shall file a joint litigation plan proposing case management deadlines. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARY CUSACK, et al.,
Plaintiffs,

Case No. 1:11-cv-00303-REB

v.

MEMORANDUM DECISION
AND ORDER

IDAHO DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

INTRODUCTION
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

MEMORANDUM DECISION & ORDER - 1

Idaho Code Section 6-610,1 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.2

1

As the Department acknowledges, the failure to post a bond does not bar a § 1983
action against the individual officers named as defendants in this case. Accordingly, it has not
asked to dismiss Plaintiffs’ first cause of action (under 42 U.S.C. ¶ 1983), only the second and
third causes of action. See Defs.’ Mem., p. 3 (Dkt. 4-1).
2

The Court has received Plaintiffs’ notice that Ms. Cusack is not available to provide the
requested information until early March. (Dkt. 25). The deadline for the supplemental
information has been set accordingly.
MEMORANDUM DECISION & ORDER - 2

BACKGROUND
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.
DISCUSSION
A.

Standards of Law
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

MEMORANDUM DECISION & ORDER - 3

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).

MEMORANDUM DECISION & ORDER - 4

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. 2002); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); 2 James Wm.
Moore et al., Moore’s Federal Practice § 12.34[2] (3d ed.1999)).
B.

Failure to Post a Bond
Idaho Code Section 6-610 requires a plaintiff to post a bond “[b]efore any civil action

may be filed against any law enforcement officer . . . when such action arises out of, or in the
course of the performance of his duty . . . .” This is referred to as “a condition precedent” and
requires that the judge “shall dismiss the case” when the defendant “excepts to . . . the failure to
post a bond under this section,” which they have done in this case. Idaho Code § 6-610(5).
Plaintiffs’ Complaint, filed on June 30, 2011, includes two state law claims that require
such a bond. Defendants’ Motion for Partial Dismissal seeks dismissal of the state law claims
for Plaintiffs’ failure to post a bond. On September 23, 2011, after Defendants moved for
dismissal, Plaintiffs requested that the bond be waived or a bond amount set.
1.

“Law Enforcement Officer” Defined

Plaintiffs argue that Defendants John or Jane Doe #11 and Vicki Hansen should not be
considered “law enforcement officers” under Section 6-610 “because they are professional
medical or counseling staff rendering services to inmates, rather than personnel whose primary
purpose is enforcing criminal laws.” Pls.’ Mem. Resp., p. 4 (Dkt. 7). Plaintiffs provided no case

MEMORANDUM DECISION & ORDER - 5

support for this interpretation, , nor has the Court found authority discussing the limits of “law
enforcement officers” under the statute. In response, Defendants contend that the statute defines
all of the named individual officers, including Hansen, as law enforcement officers.
In making their argument, Plaintiffs focus on the duties of Vicki Hansen and other health
care professionals, duties which they contend are far more akin to medical providers than to law
enforcement officials. However, the statute contains three categories of individuals who fall
within the bond protection: (1) “any court personnel, sheriff, constable, peace officer, state
police officer, correctional, probation or parole official, prosecuting attorney, city attorney,
attorney general, or their employees or agents”; (2) “any other person charged with the duty of
enforcement of the criminal, traffic or penal laws of this state”; or (3) “any other law
enforcement personnel or peace officer as defined in chapter 51, title 19, Idaho Code.”3 Idaho

3

As a corollary, Idaho Code Section 19-5101 provides the following definitions:
(b) “County detention officer” means an employee in a county jail
who is responsible for the safety, care, protection, and monitoring
of county jail inmates.
(c) “Law enforcement” means any and all activities pertaining to
crime prevention or reduction and law enforcement, including
police, courts, prosecution, corrections, probation, rehabilitation,
and juvenile delinquency.
(d) “Peace officer” means any employee of a police or law
enforcement agency which is a part of or administered by the state
or any political subdivision thereof and whose duties include and
primarily consist of the prevention and detection of crime and the
enforcement of penal, traffic or highway laws of this state or any
political subdivision. “Peace officer” also means an employee of a
police or law enforcement agency of a federally recognized Indian
tribe who has satisfactorily completed the peace officer standards
and training academy and has been deputized by a sheriff of a
county or a chief of police of a city of the state of Idaho.

MEMORANDUM DECISION & ORDER - 6

Code § 6-610(1). Plaintiffs allege that Defendant Hansen is a Department employee. See
Compl., ¶¶ 12-13. If, as alleged, Ms. Hansen and other health care staff are correctional officials
or employees of correctional officials, then they fall within category one because their positions
specifically bring them within the ambit of the statute, regardless of whether or to what degree
their actual duties involve enforcing criminal or penal laws. Accordingly, the definition of “law
enforcement officials” applies to all of the named individual Defendants in this case.
2.

Mandatory Dismissal for Failure to Post a Bond

The Idaho Supreme Court gives a strict reading to the bond requirement of Section 6-610,
even most recently upholding a trial court’s dismissal of claims against a law enforcement
officer because the plaintiff initiated suit before posting the bond required by Idaho Code Section
6–610. Allied Bail Bonds, Inc. v. County of Kootenai, 258 P.3d 340, 346 (Idaho 2011). In
Allied, the plaintiff filed its bond one day after filing its complaint. Id. at 345. The Idaho
Supreme Court held “that I.C. § 6–610(2) plainly requires a plaintiff to post bond before it
initiates suit against a law enforcement officer, and also that I.C. §§ 6–610(4) and 6–610(5)
permit an objection and dismissal where a plaintiff fails to do so.” Id. (emphasis added).
Federal judges in the District of Idaho, applying Idaho state law prior to the Allied decision, have
dismissed state law claims for failure to post a bond. See, e.g., Chaffin v. Shoshone County, No.
CV03-455-N-MHW, Dkt. 60, pp. 4-5 (D. Idaho Dec. 5, 2005); Lewis v. City of Nampa, CV04502-S-EJL, Dkt. 57, p. 10 (D. Idaho Feb. 8, 2006).
Plaintiffs argue, however, that the portion of Section 6-610 governing the timing of when
the bond amount issue is brought before, and decided by, the federal court, is not substantive, but
is merely a procedural rule conflicting with the Federal Rules of Civil Procedure. Plaintiffs
assert that Section 6-610’s requirement that plaintiffs post a bond “[b]efore any civil action may

MEMORANDUM DECISION & ORDER - 7

be filed against any law enforcement officer” conflicts with Federal Rule of Civil Procedure
18(a) (“Rule 18(a)”), which allows a plaintiff to join as many claims as it has against an
opposing party in a complaint. In short, Plaintiffs submit that Idaho law does not govern the
timing of when the security bond should be applied because that is a procedural matter left to
federal law under the principles of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).4
Plaintiffs further argue that requiring a bond determination before a complaint may be
filed in federal court conflicts with Rule 18(a) because the bond requirement prevents a plaintiff
from joining a state claim with a federal claim. However, as Defendants point out, Idaho Rule of
Civil Procedure is substantially similar to its federal counterpart.5 Yet, litigants in Idaho state
court have managed to initiate suits by first meeting the bond requirement. Although the timing
of the required bond posting presents practical inconveniences, the bond requirement does not
prevent the filing of an action; rather, it changes the order in which filings are made in court.6

4

Plaintiffs do not dispute that a state law requiring a bond to secure diligent prosecution
of claims against law enforcement officers is a substantive provision.
5

Idaho Rule of Civil Procedure 18(a) provides that “[a] party asserting a claim to relief
as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as
independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has
against an opposing party.” Federal Rule of Civil Procedure 18(a) states: “A party asserting a
claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative
claims, as many claims as it has against an opposing party.”
6

The Idaho Supreme Court has addressed concerns with requiring that a bond amount be
fixed before “filing the suit-initiating complaint”, noting that in a prior case it had acknowledged
an “apparently sizeable jurisdictional problem, because the process requires a court to set the
bond’s value before the court gains jurisdiction over the case.” Allied Bail Bonds, Inc. v. County
of Kootenai, 258 P.3d 340, 346 (Idaho 2011) (discussing Rogers v. State, 572 P.2d 176 (Idaho
1977) (internal quotation marks omitted)). The Court explained that “[t]o overcome the
‘jurisdictional problem’ . . . a plaintiff may invoke the jurisdiction of a district court by filing
with the court, located in the county where the law enforcement officer performs his or her
official duties, a petition requesting an order fixing the amount of bond.” Id. Cumbersome?
Yes, it is. Sound public policy? A question for the legislature. Impossible to meet? No.
MEMORANDUM DECISION & ORDER - 8

Section 6-610 does not conflict with Rule 18 because the bond statute does not address which
claims may be or must be joined in a single action, but instead imposes a condition precedent to
filing an action that involves certain types of defendants, analogous to tort claim notice
requirements. Because there is no conflict, there is no federal rule that applies to the issue at
hand.
Justice Stevens’s concurring opinion in Shady Grove Orthopedic Associates, P.A. v.
Allstate Ins. Co., 130 S.Ct. 1431, 1448-50 (2010) explains additional considerations:
A “state procedural rule, though undeniably ‘procedural’ in the
ordinary sense of the term,” may exist “to influence substantive
outcomes,” S.A. Healy Co. v. Milwaukee Metropolitan Sewerage
Dist., 60 F.3d 305, 310 (7th Cir. 1995) (Posner, J.), and may in
some instances become so bound up with the state-created right or
remedy that it defines the scope of that substantive right or remedy.
Such laws, for example, may be seemingly procedural rules that
make it significantly more difficult to bring or to prove a claim, thus
serving to limit the scope of that claim. See, e.g., Cohen, 337 U.S.
at 555, 69 S.Ct. 1221 (state “procedure” that required plaintiffs to
post bond before suing); Guaranty Trust Co., 326 U.S. 99, 65 S.Ct.
1464, 89 L.Ed. 2079 (state statute of limitations).
Id. (Stevens, J., concurring in part and concurring in judgment) (emphasis added). Idaho’s bond
requirement “ensure[s] diligent prosecution of a civil action brought against a law enforcement
officer, and in the event judgment is entered against the plaintiff or petitioner, for the payment to
the defendant or respondent of all costs and expenses that may be awarded against the plaintiff or
petitioner, including an award of reasonable attorney’s fees as determined by the court.” Idaho
Code § 6-610(2). Although there may be other ways to ensure these matters, Idaho has chosen to
do so by creating a condition precedent to bringing suit, the posting of a bond. Thus, it is not only
the posting of the bond, but the timing of that bond that is substantive in nature.
Even considering “the twin aims of the Erie rule: discouragement of forum-shopping and
avoidance of inequitable administration of the laws,” those goals favor Defendants’ position.
MEMORANDUM DECISION & ORDER - 9

Hanna v. Plumer, 380 U.S. 460, 468 (1965). In suits against law enforcement officials for state
law claims, Idaho courts administer the bond requirement in a way that results in dismissal if a
bond is not posted prior to commencement of an action. See, e.g., Allied Bail Bonds, 258 P.3d at
346. Providing for a different rule in federal court would result in different outcomes in federal
and state courts, thereby encouraging forum-shopping.
C.

Motion to Waive or Post Bond
Plaintiffs argue alternatively that dismissal is not appropriate because the real party in

interest is indigent and the statute of limitations has not expired so there is no prejudice to
Defendants if a bond amount is set and bond posted after the filing of the case.7 Under Idaho law,
a court “may authorize the commencement . . . of any action without prepayment of fees, costs or
security,” if it finds, after informal inquiry, that the plaintiff is indigent. Idaho Code §
31-3220(2). Defendants argue that this determination must be made at the time an action is
commenced and cannot be retroactively applied. More than one decision in the District of Idaho
has ruled otherwise. For instance, in Moore v. Peck, the court allowed plaintiffs the opportunity
to file an affidavit showing indigency under Section 31-3220(2) even though they had “neither
posted a bond nor filed an affidavit stating that they are indigent.” Moore v. Peck, No.
CV06-215-E-BLW, 2008 WL 508425, *8-9 (D.Idaho Feb. 19, 2008). See also Blackhawk v. City
of Chubbuck, No. CV-04-629-E-BLW (D. Idaho Nov. 24, 2006) (determining that a
properly-filed affidavit under Idaho Code Section 31-3220 could establish indigency that would
result in the Court waiving the bonding requirement and “[h]ad the Court denied defendants’

7

Plaintiffs also have filed a motion asking the Court to waive the bond requirement or,
in the alternative, set a bond at this time.
MEMORANDUM DECISION & ORDER - 10

summary judgment, the Court would have given plaintiffs ten days to submit the proper affidavits
under Idaho Code
§ 31-3220”); J.H. v. Jefferson County, 2007 WL 219996, *5 (D.Idaho 2007) (discussing
Blackhawk).
However, these decisions were issued before the Idaho Supreme Court’s decision in
Allied. Additionally, other judges in this District have granted defense motions raising the
“failure to provide the required bond” argument, without allowing plaintiffs to file affidavits
seeking relief from the bond under Idaho Code §31-3220. See, e.g., Chaffin, No. CV03-455-NMHW, Dkt. 60, p. 5 (D. Idaho Dec. 5, 2005) (denying request to amend and explaining that
because of “the express statutory language” in Section 6-610, “the Court is constrained from
allowing Plaintiffs the opportunity to cure the defect of having previously failed to failed a bond
by allowing them to now amend their Complaint”); McCarthy v. Kootenai County, No.
CV08-294-N-EJL, 2009 WL 3823106, *8-9 (D.Idaho Nov. 12, 2009) (explaining that because
plaintiffs had “not filed any affidavits in support of a request to waive the bond requirement . . .
the facts of [the] case [did] not support a finding that the bond requirement of § 6-610 should be
waived”); Lewis v. City of Nampa, Idaho, 2006 WL 318812, *7 (D.Idaho 2006) (explaining that
the plaintiff failed to comply with the mandatory bond requirements when suing peace officers
under Idaho Code 6-610).
Moreover, some Idaho state court decisions indicate that a request for bond waiver should
be made prior to the filing of a complaint. See Beehler v. Fremont County, 182 P.3d 713, 717
(Idaho Ct. App. 2008) (explaining that “[i]f the Beehlers were unable to afford the security bond
as they claim, they could have availed themselves of I.C. § 31–3220 in order to request a waiver
of the section 6–610 bond requirement prior to filing their complaint”) (emphasis added); Athay

MEMORANDUM DECISION & ORDER - 11

v. Stacey, 196 P.3d 325, 331 (Idaho 2008) (explaining that the “Plaintiff did not seek relief from
the bond requirement pursuant to Idaho Code § 31–3220” and “[h]is failure to do so does not
constitute a ground for avoiding the consequences of not complying with Idaho Code § 6–610”)
(emphasis added).
In this case, C.L.C’s mother and current legal guardian submitted a sworn statement
adequately asserting C.L.C’s indigency, and her affidavit complies with the requirements of Idaho
Code Section 31-3220. However, it was filed months after the Complaint was filed. See
Affidavit of Brittany Caldwell. In Allied, the case was dismissed even though the bond was filed
one day after the complaint. Considering the Allied decision and this Court’s ruling that the
timing of the bond filing is part of the substantive structure of Idaho’s bond requirement statute, a
bond posting or a favorable decision on a request to waive the bond must be made prior to filing
the lawsuit as a matter of state law. Hence, the Court will dismiss the state law claims for failure
to post a bond; however, the dismissal is without prejudice.
D.

Motion to Strike Plaintiffs’ Prayer for Recovery of Mr. Hernandez’s Non-Economic
Damages
Defendants ask the Court to strike Plaintiffs’ claim for damages resulting from Mr.

Hernandez’s pain and suffering. Defs.’ Supp. Reply, p. 2; see also Compl. ¶ 56. In Idaho, “pain
and suffering are personal to the deceased and are not damages suffered by the survivors,
[therefore] an action for pain and suffering under I.C. § 5–311 does not survive death.” Vulk v.
Haley, 112 Idaho 855, 858 (Idaho 1987). Plaintiffs concede that any non-economic damages
resulting from their state law claims (Counts Two and Three) do not survive Mr. Hernandez’s
death, but argue that their claim for non-economic damages resulting from the federal
constitutional § 1983 violation alleged in Count One survives. Pls.’ Mem. Resp., p. 3 (Dkt. 7).

MEMORANDUM DECISION & ORDER - 12

The Idaho Supreme Court has decided that a § 1983 case of action does not survive in
Idaho because § 1983 “is a personal cause of action, actionable only by persons whose civil rights
have been violated.” Evans v. Twin Falls Cty, 796 P.2d 87 (Idaho 1990). However, a state
court’s interpretation of federal law does not bind a federal court, “though it may persuade [the
court] to reach a similar result.” Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240,
1242 (9th Cir. 1984).
The text of § 1983 alone does not answer the question. Reference to § 1988 of Title 42 is
also required. That section reads, in relevant part:
The jurisdiction in civil . . . matters conferred on the district courts
by (the Civil Rights Acts) . . ., for the protection of all persons in
the United States in their civil rights, and for their vindication, shall
be exercised and enforced in conformity with the laws of the United
States, so far as such laws are suitable to carry the same into effect;
but in all cases where they are not adapted to the object, or are
deficient in the provisions necessary to furnish suitable remedies . .
., the common law, as modified and changed by the constitution and
statutes of the State wherein the court having jurisdiction of such
civil . . . cause is held, so far as the same is not inconsistent with the
Constitution and laws of the United States, shall be extended to and
govern the said courts in the trial and disposition of the cause . . .
Congress intended this section to “complement the various acts” which create federal causes of
action for violations of federal civil rights. Moore v. Alameda County, 411 U.S. 693, 703 (1973).
Chief Judge Winmill of this District recently considered whether a decedent’s § 1983
claim survives her death, and ruled that it did survive. See Van Orden v. Caribou County, et al.,
No. 4:10-CV385-BLW (Mar. 4, 2011). The relevant inquiry applied by the District Court in Van
Orden involved consideration of (1) whether the issue before the court is addressed by federal law
(here, the survivability of § 1983 actions is not addressed by a federal statute); (2) the law of the
forum state, (Idaho has no survivor statute and claims abate on a decedent’s death); and (3)
whether the state law conflicts with the purposes of § 1983. Although other decisions from this
MEMORANDUM DECISION & ORDER - 13

district have examined just the first two stages8, the Van Orden decision goes on to consider the
third. The first two stages of the inquiry here are identical to the analysis in Van Orden, and the
third stage—that of whether state law conflicts with the purpose of § 1983—is most relevant. In
addressing this stage, the court in Van Orden explained that a law precluding a civil rights action
when the wrongful conduct causes death undermines the purpose of § 1983, to provide a remedy
for those injured by constitutional violations and to deter constitutional violations. Id. (citing
Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961); Bell v. Milwaukee, 746 F.2d 1205 (7th Cir. 1984)
overruled on other grounds (holding that the Constitution does not allow parents to recover in §
1983 actions for loss of society and companionship); Berry v. City of Muskogee, 900 F.2d 1489,
1501 (10th Cir. 1990)).9 This Court agrees that Idaho’s lack of a survivor statute is inconsistent
with the strong policy embodied in § 1983 to provide a remedy for constitutional violations and to
deter such conduct.

8

See, e.g., Anderson v. Correctional Med. Servs., No. 1:02-CV-155-LMB (D. Idaho
2005) (finding that Idaho law did not allow the action to survive, but noting that “[t]his seems to
me to be contrary to the policy behind the civil rights statute”); Huber v. Blades, No.
1:05-CV-206-MHW (D. Idaho 2006) (ruling on a motion to dismiss that was unopposed and not
engaging in third step of the analysis). More recently, a District Court determined that a § 1983
claim did not survive the death of the plaintiff’s wife under Idaho law. Bach v. Idaho State Bd.
of Med., et al., CV10-548-BLW (D. Idaho Jan. 20, 2012). However, the court in Bach found that
the plaintiff did not sufficiently allege deliberate indifference and it did not engage in the third
step of the analysis under the circumstances that case presented.
9

The Fifth Circuit in Brazier noted that (in contrast to Idaho) since state law “provides
both for survival of the claim which the decedent had for damages sustained during his lifetime
as well as a right of recovery to his surviving widow . . . we need not differentiate between the
two types of actions.” 293 F.2d at 409. However, the court went on to explain that “[t]o make
the policy of the Civil Rights Statutes fully effectual, regard has to be taken of both classes of
victims.” Id. In commenting on the issue, the Fifth Circuit stated “Section 1988 declares that
this need may be fulfilled if state law is available.” Id. In this case, Idaho law is not available,
that is, it does not provide for survival similar to the Georgia law. Thus, this Court must go
beyond what the Brazier court determined.
MEMORANDUM DECISION & ORDER - 14

The United States Supreme Court’s ruling in Robertson v. Wegmann, 436 U.S. 584 (1978)
is instructive here. In that case, a man named Clay Shaw filed a civil rights action under 42
U.S.C. § 1983, but died from unrelated causes four years after filing the action and before trial
commenced. Id. at 585. The question the Court considered was “whether the District Court was
required to adopt as federal law a Louisiana survivorship statute, which would have caused [the]
action to abate, or was free instead to create a federal common-law rule10 allowing the action to
survive.” Id. (footnote and emphasis added). As the Court noted, “[r]esolution of this question
turns on whether the state statute is ‘inconsistent with the Constitution and laws of the United
States.’” Id. (quoting 42 U.S.C. § 1988).11
The policies underlying § 1983 include compensation of persons injured by deprivation of
federal rights and prevention of abuses of power by those acting under color of state law.” Id. at
590-91. Defendants here argue that the “prevention of abuses of power” language incorporates
only acts that are “contemplated and intentionally taken” and not constitutional deprivation
caused by negligence, which Defendants argue is the basis for Plaintiffs’ § 1983 claim here.
Defs.’ Supp. Reply. First, Plaintiffs’ § 1983 claim alleges that Defendants acted with “deliberate
indifference” and is not a standard negligence claim. See Compl., p. 5 (Dkt. 1). Additionally,

10

“Aspects of § 1983 which are not governed by reference to state law are governed by
federal rules conforming in general to common-law tort principles.” Wallace v. Kato, 549 U.S.
384, 388 (2007). “[O]ver the centuries the common law of torts has developed a set of rules to
implement the principle that a person should be compensated fairly for injuries caused by the
violation of his legal rights. These rules, defining the elements of damages and the prerequisites
for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well.”
Carey v. Piphus, 435 U.S. 247, 257-258 (1978).
11

The Supreme Court applied the Louisiana state law, explaining: “Despite the broad
sweep of § 1983, we can find nothing in the statute or its underlying policies to indicate that a
state law causing abatement of a particular action should invariably be ignored in favor of a rule
of absolute survivorship.” 436 U.S. at 590.
MEMORANDUM DECISION & ORDER - 15

neither Robertson nor the cases the opinion draws upon in discussing “abuses of power” sets forth
a requirement that an intentional act occur before an abuse of power may be found. Moreover,
Shaw’s death was unrelated to the alleged constitutional violation, in stark contrast to the
allegations of this case. Finally, the Court in Robertson was careful to paint exact corners around
the limits of its decision:
Our holding today is a narrow one, limited to situations in which no
claim is made that state law generally is inhospitable to survival of
§ 1983 actions and in which the particular application of state
survivorship law, while it may cause abatement of the action, has
no independent adverse effect on the policies underlying § 1983. A
different situation might well be presented, as the District Court
noted, if state law “did not provide for survival of any tort actions,”
391 F.Supp., at 1363, or if it significantly restricted the types of
actions that survive. Cf. Carey v. Piphus, 435 U.S., at 258, 98
S.Ct., at 1049 (failure of common law to “recognize an analogous
cause of action” is not sufficient reason to deny compensation to §
1983 plaintiff). We intimate no view, moreover, about whether
abatement based on state law could be allowed in a situation in
which deprivation of federal rights caused death. See supra, 1996,
and n. 10; cf. Brazier v. Cherry, 293 F.2d 401 (CA5 1961)
(deceased allegedly beaten to death by policemen; state survival
law applied in favor of his widow and estate).
436 U.S. at 594 (emphases added).12 Here, the alleged deprivation of federal rights are what
Plaintiffs assert caused Mr. Hernandez’s death.

12

At the hearing, defense counsel relied on the following statement in a Ninth Circuit
Court of Appeals’ decision: “It is undisputed that survival actions are permitted under § 1983 if
authorized by the applicable state law.” Byrd v. Guess, 137 F.3d 1126, 1131 (9th Cir. 1998).
That sentence of the Byrd case cited to another case, Smith v. City of Fontana, which contains a
limitation similar to that noted by the Robinson court: “We express no view here as to whether
the remedies authorized by California’s survival statute, pecuniary and punitive damages but not
damages for pain and suffering, are too limited to be ‘consistent’ with the Civil Rights Act’s
statutory scheme and whether federal law, therefore, provides an independent source of recovery
for a broader array of damages.” Smith v. City of Fontana, 818 F.2d 1411, 1416-17 (9th Cir.
1987) overruled on other grounds by Hodgers–Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.
1999). That is akin to the issue taken up by Judge Winmill in the Van Orden case, an issue that
has been left undecided in some of the cases upon which Defendants rely.
MEMORANDUM DECISION & ORDER - 16

While the Louisiana statute applied in Robertson allowed the decedent’s § 1983 claim to
survive in favor of a spouse, children, parents, or siblings,13 Idaho has no survivor statute; thus, a
decedent’s claims do not survive at all (even though Idaho allows certain relatives of a deceased
to bring independent claims on their own behalf). As Judge Winmill said in Van Orden, “Idaho’s
lack of a survivor statute conflicts with § 1983’s purposes of providing a remedy for, and
deterring[,] constitutional violations.” Van Orden, 2011 WL 841438, at *4. Accordingly, this
Court holds that Plaintiffs may pursue a § 1983 claim on behalf of Mr. Hernandez.
Having ruled that the § 1983 claim may be maintained, the Court finds no reason to limit
the damages recoverable for that claim.14 See, e.g., McGlurg v. Maricopa Cty, No. CV09-1604PHX-MHB, 2011 WL 4434029 (D. Ariz. Sept. 23, 2011) (concluding that “application of
Arizona’s survival statute and its elimination of pain and suffering damages where death is
alleged” is contrary to the purpose of § 1983 and applying “a federal remedy that permits
recovery of such damages”) (emphasis added); Kaady v. City of Sandy, CV06-1269-PK, 2008 WL
5111101 (D. Or. Nov. 26, 2008) (explaining that Oregon’s survival statute “substantially limits
the type and amount of damages that are recoverable in § 1983 claims where the constitutional
violation causes the death of the victim” and concluding that it “is inconsistent with the
compensation and deterrence policies that Congress intended § 1983 to serve”).15 “Rights,
13

Under Louisiana law, an action like Shaw’s would survive only in favor of a spouse,
children, parents, or siblings and “since no person with the requisite relationship to Shaw was
alive at the time of his death, his action would have abated had state law been adopted as the
federal rule.” Robertson, 436 U.S. at 587.
14

Defendants requested that the Court dismiss Plaintiffs’ claim for pain and suffering,
and not the entire § 1983 action, but the Court’s ruling on the damages issue rests on
considerations related to the Plaintiffs’ ability to maintain a § 1983 action at all on behalf of the
deceased person.
15

Courts in the Southern, Central, and Northern Districts of California “have opted not
to apply” a California state “limitation on damages for pain, suffering, or disfigurement, finding
MEMORANDUM DECISION & ORDER - 17

constitutional and otherwise, do not exist in a vacuum. Their purpose is to protect persons from
injuries to particular interests, and their contours are shaped by the interests they protect.” Carey
v. Piphus, 435 U.S. 247, 253-55 (1978) (granting certiorari “to consider whether, in an action
under § 1983 for the deprivation of procedural due process, a plaintiff must prove that he actually
was injured by the deprivation before he may recover substantial ‘nonpunitive’ damages” and
commenting that “lower federal courts appear generally to agree that damages awards under §
1983 should be determined by the compensation principle”).16
Compensatory damages under § 1983 “may include not only out-of-pocket loss and other
monetary harms, but also such injuries as impairment of reputation, personal humiliation, and
mental anguish and suffering.” Adams v. CCA, 2011 WL 2909877, *6 (D.Idaho 2011) (citations
and internal quotation marks omitted).17 Accordingly, Defendants’ motion to strike or dismiss
Plaintiffs’ claim for recovery of non-economic damages under §1983, is denied.

it inconsistent with the purposes of § 1983.” Duenez v. City of Manteca, No. CIV S-11-1820,
2011 WL 5118912 *8 (E.D. Cal. Oct. 27, 2011).
16

See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239-240 (1969) (“This means
as we read § 1988, that both federal and state rules on damages may be utilized, whichever better
serves the policies expressed in the federal statutes. . . . The rule of damages, whether drawn
from federal or state sources, is a federal rule responsive to the need whenever a federal right is
impaired. We do not explore the problem further, as the issue of damages was not litigated
below.”).
17

See also Sullivan, 396 U.S. at 238-39 (quoting Bell v. Hood, 327 U.S. 678) (internal
quotation marks omitted) (“Where federally protected rights have been invaded, it has been the
rule from the beginning that courts will be alert to adjust their remedies so as to grant the
necessary relief. And it is also well settled that where legal rights have been invaded, and a
federal statute provides for a general right to sue for such invasion, federal courts may use any
available remedy to make good the wrong done.”). But see Mahach-Watkins v. Depee, 593 F.3d
1054, 1060 (9th Cir. 2010) (assuming in a case arising in California, without deciding, “that as a
matter of law compensatory damages were not available to the estate on the § 1983 excessive
force claim”).
MEMORANDUM DECISION & ORDER - 18

E.

Plaintiffs’ Prayer for Punitive Damages
Plaintiffs concede in their briefing that punitive damages are not available for their two

law state claims, Pls.’ Mem. Resp., p. 3 (Dkt. 7), and Plaintiffs’ counsel confirmed this at the
hearing. Accordingly, the punitive damages request, as it relates to these Counts Two and Three,
will be dismissed.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Defendants’ Partial Motion to Dismiss (Dkt. 4) is GRANTED, in part, and

DENIED, in part. Plaintiffs’ request for punitive damages and any requests for non-economic
damages suffered by Mr. Hernandez in relation to Plaintiffs’ state law claims (Counts Two and
Three) are hereby dismissed. Counts Two and Three of Plaintiffs’ Complaint are dismissed for
failure to post a bond, but without prejudice. Defendants’ Motion is DENIED in all other
respects.
2)

A final order on Plaintiffs’ Motion to Waive or Set Bond and to Appoint Guardian

ad Litem (Dkt. 8), to the extent it seeks appointment of Mary Cusack as guardian ad litem for
Plaintiff C.L.C., is deferred at this time. As discussed at the January 17, 2012 hearing, Plaintiffs’
counsel may submit more information in support of their request to appoint Ms. Cusack as
guardian, along with a proposed order. Any supplemental information to support the
guardianship request shall be filed with the Court on or before March 14, 2012.
3)

That portion of Plaintiffs’ Motion to Waive or Set Bond and to Appoint Guardian

ad Litem (Dkt. 8) that seeks to waive the bond required by Idaho Code Section 6-610 or set a
bond is DENIED, but without prejudice to reconsideration if Plaintiffs choose to refile such
claims and either obtain a bond or an order waiving the bond before doing so.

MEMORANDUM DECISION & ORDER - 19

4)

A telephone scheduling conference is hereby set for March 7, 2012 at 1:15 p.m.

(MST). Plaintiffs’ counsel shall initiate the conference call and connect opposing counsel and the
Court at [phone]. On or before February 29, 2012, counsel shall file a joint litigation plan
proposing case management deadlines. A copy of the litigation plan is available at
http://www.id.uscourts.gov/forms-dc.htm.

DATED: February 15, 2012.

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION & ORDER - 20