ORDER GRANTING DEFENDANTS JESSIE REVOLINSKY, RICHARD CONTRERAS, WARREN, HAROLD WHITE, DEE DEE NELSON AND EMMANUEL CHAVEZ'S MOTION TO DISMISS AND MOTION TO STRIKE
This matter comes before the Court on Defendants' Timothy Asbury, Philip Revolinsky, Richard Warren, Harold White, Dee Dee Nelson and Emmanuel Chavez' ("Defendants'") Motion to Dismiss and Motion to Strike (Doc.11) portions of Plaintiffs' Estate of Jessie P. Contreras, Leonor Contreras and Jessie Contreras' ("Plaintiff's") First Amended Complaint ("FAC"). (Doc. 6). Defendants ask the court to dismiss Leonor Contreras' individual survivor claims in the first, second, and fourth through eighth claims for relief, pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants also seek to dismiss the suits against them in their "official capacity." Lastly, Defendants move to strike all allegations of decedent's pre-death pain, suffering or disfigurement, pursuant to Federal Rule of Civil Procedure 12(f).
FACTUAL AND PROCEDURAL BACKGROUND
Decedent Jessie P. Contreras ("Decedent") was an inmate in Glenn County Jail ("the jail") at the time of his death on August 6, 2008. Decedent was admitted to the jail for misdemeanor offenses on July 30, 2008. Plaintiffs allege that Decedent indicated at the time of his intake at the jail, and thereafter, that he was mentally unstable and suicidal. Decedent was placed in a single cell with sheets and a bed, and no video camera for monitoring the cell. Plaintiffs allege that a jail officer noted in a computer log that Decedent had advised he was suicidal, yet no mental health or other health care was provided, Decedent was not placed in a safety or isolation cell, and he was not monitored on a suicide watch program. On August 4, 2008, Decedent was found in his cell, hanging from a bed sheet. He was taken to the hospital and died in the hospital on August 6, 2008. Plaintiffs brings survivor claims for civil rights violations under 42 U.S.C. § 1983, and pendent state law survivor claims. Additionally, Plaintiffs ask for leave to amend the FAC to include Decedent's minor daughter, J.A.L.A., as a plaintiff.
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
"Rule 12(f) provides in pertinent part that the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. . . Motions to strike are disfavored an infrequently granted. A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Bassett v. Ruggles et al., 2009 WL 2982895 at *24(E.D. Cal. Sept. 14, 2009)(internal citations omitted).
II. Standing for Survival Claims
Defendants argue that Leonor Contreras, in her individual capacity, does not have standing to sue as a survivor in the first, second, fourth, fifth, sixth, seventh, and eighth claims for relief, thus her individual survivor claims in these causes of action should be dismissed. Plaintiffs agree, and ask the Court for leave to amend these claims for relief in the FAC to clarify that Leonor Contreras brings these claims only in her capacity as the Personal Administrator of the Estate of Jessie P. Contreras, and not in her individual capacity as his mother. Plaintiff also requests leave to amend these claims to add Decedent's minor daughter as a claimant and to conform the claims with the applicable law in the California Code of Civil Procedure § 377.11, § 377.30 and California Probate Code § 6402. Accordingly, the Court dismisses Leonor Contreras' individual survivor claims in the first, second, fourth, fifth, sixth, seventh, and eighth claims for relief, with prejudice, but grants the remaining plaintiffs leave to amend the claims consistent with this order.
III. Official Capacity Suits
Plaintiffs brought suit against Defendants both in their individual and official capacities. Defendants ask the Court to dismiss the suit against them in their official capacity. Defendants argue that because Plaintiffs have also sued Defendants' employer, ...