Davis v. Nevada Department of Corrections et al
Filing
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ORDER that 12 Motion to Dismiss is GRANTED in part and DENIED in part. Plaintiff shall have 20 days from this order to file a proper amended complaint stating sufficient facts to support his emotional distress claims. Signed by Judge Jennifer A. Dorsey on 7/21/14. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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Antonio Davis,
Case No.: 2:13-cv-1727-JAD-CWH
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Plaintiff,
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v.
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Nevada Department of Corrections, et al.,
Order Granting in Part Defendant’s
Motion to Dismiss and Motion for a
More Definite Statement [Doc. 12]
Defendants.
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Plaintiff Antonio Davis alleges that, while he was incarcerated at Nevada’s High
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Desert State Prison, a corrections officer shot him three times, causing him severe, permanent
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injuries. He sues the Nevada Department of Corrections (NDOC) and its Warden, Dwight
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Nevins alleging § 1983 violations and a host of state-law tort claims. Defendants ask the
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Court to dismiss Davis’s civil rights claims and his claims for intentional and negligent
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infliction of emotional distress or, alternatively, to order Davis to provide a more definite
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statement of these claims. The Court grants the motion to dismiss Davis’s § 1983 claim to
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the extent it alleges a Fifth Amendment violation and Davis’s emotional-distress claims, but
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grants leave to amend the emotional-distress claims if he can allege facts that suggest he has
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suffered severe and serious emotional distress.
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Page 1 of 7
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A.
Motion to Dismiss
Federal Rule of Civil Procedure 8(a) supplies the standard for pleadings in a federal
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cause of action and states, “[a] pleading that states a claim for relief must contain: (1) a short
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and plain statement of the grounds for the court’s jurisdiction . . . .; (2) a short and plain
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statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the
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relief sought.”1 A district court may dismiss a complaint for failing to state a claim upon
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which relief can be granted under Rule 12(b)(6).2 “To survive a motion to dismiss, a
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complaint must contain sufficient factual matter, accepted as true, to state a claim for relief
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that is plausible on its face.”3 “[A] plaintiff’s obligation to provide the ‘grounds’ of his
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‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation
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of the elements of a cause of action will not do. Factual allegations must be enough to raise a
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right to relief above the speculative level.”4 The Court is also “not bound to accept as true a
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legal conclusion couched as a factual allegation.”5 To state a “plausible” claim for relief, the
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plaintiff must “plead[] factual content that allows the court to draw a reasonable inference
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that the defendant is liable for the misconduct alleged.”6 This requires a plaintiff to state
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“enough facts to raise a reasonable expectation that discovery will reveal evidence” of the
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allegations charged.7
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1.
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Davis alleges violations of his Fourth, Fifth, Eighth, and Fourteenth Amendment
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42 U.S.C. § 1983 Claims
rights under 42 U.S.C. § 1983. Defendants move to dismiss all three of these claims.
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Fed. R. Civ. Proc. 8(a).
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Id. at 12(b)(6).
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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Id. (quoting Papsan v. Allain, 478 U.S. 265, 286 (1986)).
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Iqbal, 556 U.S. at 678-79.
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Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)
(quoting Twombly, 550 U.S. at 556).
Page 2 of 7
a.
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Fourth Amendment
Defendants contend that Davis must point to “malicious and sadistic force, not merely
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objectively unreasonable force” to state a Fourth Amendment claim. Doc. 12 at 5. But
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Davis’s facts are “generic” and did not indicate why the shots were fired or under what
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context. Id. Davis responds that he alleged his name, the date of the offense, and a simple
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and concise statement of the facts—sufficient under federal notice pleading standards. Doc.
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14 at 5-6. Davis also argues that even to the degree his excessive force claims were not
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adequately pled, contextual information regarding the shooting is likely in the possession of
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the Defendants, and the details that Defendants are seeking should be obtained through
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discovery, not in his notice pleading.
The Fourth Amendment provides that “[t]he right of the people to be secure in their
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persons . . . against unreasonable searches and seizures . . . .”8 The “use of force is contrary
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to the Fourth Amendment if it is excessive under objective standards of reasonableness.”9
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“The Fourth Amendment’s requirement that a seizure be reasonable prohibits more than the
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unnecessary strike of a nightstick, sting of a bullet, and thud of a boot.”10
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Davis has alleged that a “lockdown” order was given; he reasonably ignored it and
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continued doing push-ups; and he was shot three times by a prison guard. The Court has
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little difficulty concluding that Davis’s facts and their inferences demonstrate conduct that
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could violate objective standards of reasonableness. Davis has sufficiently alleged a claim
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for excessive force in violation of the Fourth Amendment.
b.
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Eighth Amendment
NDOC briefly argues that Davis’s allegation that he was “shot with a shotgun” does
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not provide sufficient facts for NDOC to defend an Eighth Amendment violation. Doc. 12 at
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6. In response, Davis argues that he was offering no resistance at the time he was shot, and
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U.S. Const. amend. IV.
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Saucier v. Katz, 533 U.S. 194, 201-02 (2001), receded from on other grounds, 555 U.S. 223 (2009).
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Fontana v. Haskin, 262 F.3d 871, 878 (9th Cir. 2001).
Page 3 of 7
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that the Officer made no attempt to give a “warning shot” or even “aim low” prior to
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shooting Davis in the head. Doc. 14 at 7-8.
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“When prison officials use excessive force against prisoners, they violate the inmates’
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Eighth Amendment right to be free from cruel and unusual punishment.”11 No constitutional
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violation occurs if force is applied in a good faith effort to restore discipline and order, or is
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merely objectively unreasonable; instead, force must be exercised “maliciously and
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sadistically for the very purpose of causing harm.”12
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There is no allegation that Davis was actively rioting or violently resisting an attempt
to restore order, or that riotous conditions in the prison at the time the incident occurred
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would have somehow justified NDOC’s particular application of force. Davis’s allegations
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sufficiently state an Eighth Amendment violation claim.
c.
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Fifth Amendment
Defendants move to dismiss Davis’s civil rights claim to the extent it is founded upon
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a Fifth Amendment violation theory because the Fifth Amendment only applies to federal
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defendants, not state defendants. “The Fifth Amendment prohibits the federal government
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from depriving persons of due process, while the Fourteenth Amendment explicitly prohibits
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deprivations without due process by the several States: ‘nor shall any State deprive any
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person of life, liberty, or property, without due process of law.’”13 The Fifth Amendment’s
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Due Process and Equal Protection Clauses apply only to federal actors, not state actors;14 the
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Fourteenth Amendment is the vehicle for asserting this type of claim against state actors like
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the defendants in this case. Defendants’ motion to dismiss the portion of Davis’s § 1983
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claim based on a Fifth Amendment violation. As the Court does not believe that plaintiff
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Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002).
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Whitley v. Albers, 473 U.S. 312, 320-21 (1986).
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Castillo v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005) (quoting U.S. Const. amend. XIV).
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See Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008).
Page 4 of 7
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could save this claim with amendment, this Fifth Amendment theory is dismissed without
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leave to amend.
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2.
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Defendants also ask the Court to dismiss plaintiff’s claims for intentional and
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negligent infliction of emotional distress based on the absence of facts in the complaint that
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would suggest that plaintiff suffered emotional distress. To establish a cause of action for
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intentional infliction of emotional distress, a plaintiff must allege: (1) extreme and
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outrageous conduct with either the intention of, or reckless disregard for, causing emotional
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distress; (2) severe or extreme emotional distress suffered by the plaintiff; and (3) actual or
Emotional Distress Claims
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proximate causation.15 Extreme and outrageous conduct “is that which is outside all possible
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bounds of human decency and is regarded as utterly intolerable in a civilized community.”16
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Courts determine whether conduct is “extreme and outrageous” as a matter of law.17 For
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negligent infliction, a plaintiff must allege: (1) the defendant acted negligently, (2) either a
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physical impact or, in the absence of a physical impact, proof of a serious emotional distress
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causing physical injury or illness, and (3) actual or proximate causation.18 “In order to
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sustain a claim of emotional distress . . . the plaintiff needs to show that there was ‘extreme
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and outrageous conduct with either the intention of, or reckless disregard for, causing
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emotional distress.’”19
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Davis’s emotional distress claims merely offer a conclusory statement of the
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formulaic elements of these claims; the complaint is devoid of any reference to an emotional
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impact of the shooting. With no emotional-distress facts from which this Court could draw
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Olivero v. Lowe, 995 P.2d 1023 (Nev. 2000).
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Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998).
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Alamo v. Reno Hilton Corp., 819 F. Supp. 905 (D. Nev. 1993) (citation omitted).
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See Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998); Minshew v. Donley, 911 F.
Supp. 2d 1043, 1063 (D. Nev. 2012).
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State of Eighth Judicial District Court ex rel. v. County of Clark, 42 P.3d 233, 241 (Nev. 2002)
(quoting Shoen, 896 P.2d at 477).
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the inference that Davis suffered severe or extreme emotional distress, this claim fails to state
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a plausible claim for relief and must be dismissed. Accordingly, plaintiff’s claims for
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intentional and negligent infliction of emotional distress are dismissed. The Court does not
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yet find that plaintiff will be unable to plead the necessary facts to state these claims.
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Accordingly, the Court dismisses these emotional distress claims with leave to amend these
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claims only to add sufficient factual allegations to state proper intentional and negligent
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infliction of emotional distress claims.20
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B.
Motion for a More Definite Statement
Defendants argue that, to the extent this Court does not dismiss these claims, it should
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direct plaintiff to provide a more definite statement of these claims. Doc. 12 at 8-9. Rule
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12(e) provides in relevant part, “[a] party may move for a more definite statement of a
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pleading to which a responsible pleading is allowed but which is so vague or ambiguous that
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the party cannot reasonably prepare a response.”21 The Court does not find the remaining
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constitutional theories are “so vague or ambiguous that” defendants cannot reasonably
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prepare a response. Davis has clearly explained the conduct giving rise to each cause of
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action: he was doing push-ups in the prison facility and, after failing to immediately respond
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to a “lock down” order, he was shot several times by prison guards and sustained substantial
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personal injuries. These allegations are clear enough to place defendants on notice of the
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basis for Davis’s claims and permit their response. The motion for a more definite statement
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is denied.
Order
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Accordingly, and based on the foregoing reasons,
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IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [Doc. 12] is
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GRANTED in part and DENIED in part:
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///
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See Fed. R. Civ. Proc. 15(a).
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Id. at 12(e).
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It is GRANTED as to Davis’s 42 U.S.C. § 1983 claim premised on violations of the
Fifth Amendment;
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It is GRANTED with leave to amend as to Davis’s emotional distress claims;
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It is DENIED in all other respects.
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Plaintiff shall have 20 days from this order to file a proper amended complaint stating
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sufficient facts to support his emotional distress claims.
DATED: July 21, 2014.
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_________________________________
JENNIFER A. DORSEY
UNITED STATES DISTRICT JUDGE
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