White v. Hlavaty

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MELANIE WHITE, et al., 2:22-CV-13005-TGB-EAS

Plaintiffs, HON. TERRENCE G. BERG

ORDER GRANTING

vs. DEFENDANTS’ MOTION TO

DISMISS

(ECF NO. 8);

LEIGH HLAVATY, et al.,

AND GRANTING DEFENDANTS’

MOTION FOR LEAVE TO FILE

Defendants.

SUPPLEMENTAL AUTHORITY

(ECF NO. 14)

On September 21, 2021, 22-year-old Isaiah White, a Black male,

died of a shotgun wound to the back of the head. Two days later, the

Wayne County Deputy Chief Medical Examiner, Defendant Leigh

Hlavaty, wrote a report stating that the cause of death was homicide. The

circumstances of White’s death described in the police report, however,

suggested that his fatal wound was self-inflicted. Relying on that report

and crime scene analysis, Hlavaty later amended her report to state that

the cause of death was suicide. Now, White’s bereaved parents, Plaintiffs

Melanie White and Darren Pollard, have sued Defendants Hlavaty and

Wayne County under 42 U.S.C. § 1983 claiming that Defendants violated

the Fourteenth Amendment by changing White’s cause of death from

homicide to suicide on the basis of race or without any rational basis.

Plaintiffs also allege that Defendants were grossly negligent and

negligently inflicted emotional distress upon them by failing to properly

investigate White’s death.

Defendants have moved to dismiss Plaintiffs’ complaint under

Federal Rule of Civil Procedure 12(b)(6) for failure to state claims upon

which relief can be granted. ECF No. 8. Defendants also moved for leave

to file supplemental authority in support of their motion to dismiss.

Defendants’ motion for leave will be granted because the supplemental

authority is relevant and helpful to the Court in resolving this matter.

Having carefully reviewed the complaint, supporting exhibits, and

briefing, the Court concludes that Defendants’ motion to dismiss is well

taken and must be GRANTED.

I. BACKGROUND

In the early hours of September 21, 2021, Isaiah White’s housemate

and cousin, Trey Lapsley, was upstairs playing video games when he

heard a gunshot from inside his house and ran downstairs to discover

White lying on the couch with a gunshot wound to the back of his head.

Lapsley shared the home with his brother Lake Lapsley, his father, and

White. Plaintiffs’ Exh. 3, ECF No. 1-4, PageID.20. Lapsley indicated to

police that only he and White were home at the time shot was fired. Id.

Lapsley immediately called his brother and the police upon seeing White.

Id.; ECF No. 1, PageID.3. Shortly after Lapsley called for help, police

arrived on the scene to investigate. ECF No. 1-4, PageID.20.

According to the police report, the officers found White lying on the

couch in a pool of his own blood with the gun on the ground. Id. The gun

had blood on the grip and rested on the right side of White’s body. Id. The

officers also observed that White was holding a blunt in his right hand.

Id. White had no other injuries besides the gunshot wound. Id. Medics

arrived on the scene and pronounced White dead at 1:10 a.m. Id.

Lapsley told the officers that White had suffered from mental

illness “for some time” and recently returned home from being

hospitalized for depression. Id. Lapsley also explained that the gun

belonged to his brother, Lake Lapsley, and was stored in a closet where

anyone in the house could have accessed it. Id. at PageID.20–21. Upon

receiving a call from Trey telling him to come home immediately, Lake

arrived on the scene a few moments before the officers. Id. at PageID.21.

Lake similarly explained that White had been “in and out of hospitals for

mental illness for [a] long time now.” Id. Lake and Trey both told police

that they had not touched White’s body or the weapon before the officers

secured the scene. Id. at PageID.20–21.

On September 23, 2021, Defendant Leigh Hlavaty, the Wayne

County Deputy Chief Medical Examiner, issued a postmortem report on

White’s death. Plaintiffs’ Exh. 2, ECF No. 1-3, PageID.15. Hlavaty’s

report does not contain or reference any police report, but it states:

“Investigation revealed that the decedent could not have shot himself in

the back of the head with the shotgun in question and only using his left

hand.” Id. Hlavaty’s report concluded: “Thus, the manner of death is

homicide.” Id.

Nearly two months later, on November 10, 2021, Hlavaty wrote an

“Addendum” to her initial postmortem report. Hlavaty noted that

“[f]urther investigation by police revealed that this wound was self-

inflicted.” Plaintiffs’ Exh. 4, ECF No. 1-5, PageID.22. Hlavaty

summarized that White “was suicidal and had voiced suicidal ideations

to his family.” Id. Hlavaty added that Trey Lapsley, who had promptly

called the police after the gunshot, “was not felt to have been involved in

the shooting.” Id. Hlavaty also offered a new conclusion that based on

blood patterns and White’s position on the couch, White could have “used

his left hand to pull the trigger of the weapon,” despite being right-

handed. Id. Accordingly, Hlavaty amended the cause of death to suicide.

Id.

Plaintiff Melanie White, the mother and personal representative of

Isaiah White’s estate, along with Isaiah White’s father, Plaintiff Darren

Pollard, have sued Hlavaty and Wayne County based on Hlavaty’s

decision to classify their son’s death as a suicide. Plaintiffs allege that

changing White’s cause of death to suicide (thereby ending Wayne

County’s investigation into his potential homicide) constitutes

intentional race discrimination or state action lacking rational basis in

violation of the Equal Protection clause of the Fourteenth Amendment.

ECF No. 1, PageID.4, PageID.6–7. Plaintiffs also claim that Defendants

are liable for gross negligence and negligent infliction of emotional

distress based on their failure to properly investigate White’s death. Id.

at PageID.8–10.

Defendants have moved to dismiss Plaintiffs’ complaint for failure

to state claims under Rule 12(b)(6). ECF No. 8. Defendants argue that

Plaintiffs have not plausibly alleged the existence of a constitutional

violation and have not pled essential elements of gross negligence and

negligent infliction of emotional distress. Id. at PageID.51–52. The Court

heard oral argument on the motion on July 20, 2023.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits

dismissal of a lawsuit or claim where the defendant establishes the

plaintiff’s “failure to state a claim upon which relief can be granted.”

Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008).

Consideration of a Rule 12(b)(6) motion is generally confined to the

pleadings. Id. Courts may, however, consider any exhibits attached to the

complaint or the defendant’s motion to dismiss “so long as they are

referred to in the Complaint and are central to the claims contained

therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th

Cir. 2008) (citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.

2001)).

In evaluating the motion, courts “must construe the complaint in

the light most favorable to the plaintiff, accept all well-pled factual

allegations as true and determine whether the plaintiff undoubtedly can

prove no set of facts consistent with their allegations that would entitle

them to relief.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d

523, 527 (6th Cir. 2007) (citing Kottmyer v. Maas, 436 F.3d 684, 688 (6th

Cir. 2006)).

Though this standard is liberal, it requires a plaintiff to provide

“more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action” in support of her grounds for entitlement

to relief. Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). The plaintiff must also

plead “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). A plaintiff

falls short if she pleads facts “merely consistent with a defendant’s

liability” or if the alleged facts do not “permit the court to infer more than

the mere possibility of misconduct.” Albrecht, 617 F.3d at 893 (quoting

Iqbal, 556 U.S. at 678–79).

III. DISCUSSION

A. Whether Plaintiffs Have Plausibly Pled a Fourteenth

Amendment Constitutional Violation

Plaintiffs’ § 1983 claim is premised on an alleged violation of the

Equal Protection clause of the Fourteenth Amendment. Plaintiffs argue

that Defendants intentionally discriminated against Isaiah White on the

basis of race by changing his cause of death from homicide to suicide.

Alternatively, Plaintiffs contend that Defendants’ decision to amend

White’s cause of death lacked any rational basis, and thus constituted a

Fourteenth Amendment violation based on a “class-of-one” theory.1

As explained below, Plaintiffs’ § 1983 claim against Defendant

Hlavaty in her individual capacity and their Monell claim against

Defendant Wayne County must be dismissed because Plaintiff has failed

to plausibly allege a violation of White’s Fourteenth Amendment equal

protection rights.

1. Whether Plaintiffs Have Sufficiently Alleged

Intentional Discrimination

“The central purpose of the Equal Protection Clause of the

Fourteenth Amendment is the prevention of official conduct

discriminating on the basis of race.” Washington v. Davis, 426 U.S. 229,

239 (1976). But when alleging race-based discrimination in violation of

1 Defendants’ motion to dismiss focused solely on addressing Plaintiffs’

allegations of intentional discrimination rather than Plaintiffs’ class-of-

one theory. The Court ordered Defendants to provide supplemental

briefing on Plaintiffs’ class-of-one theory if they intended to move for

complete dismissal of Plaintiffs’ Fourteenth Amendment claim. ECF No.

16. Defendants submitted supplemental briefing arguing that Plaintiffs

failed to state a claim on a class-of-one theory. ECF No. 18. Plaintiffs

responded to Defendants’ supplemental briefing, ECF No. 19, and the

Court questioned both parties on the class-of-one theory during oral

argument held on July 20, 2023.

the Equal Protection clause, a plaintiff must demonstrate that the

discrimination was intentional. Vill. of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252, 265 (1977). While the plaintiff need not prove

that racial animus was the “dominant” or “primary” purpose of the

challenged action, she must show that race was a “motivating factor.” Id.

at 265–66. To survive a motion to dismiss, Plaintiffs must plausibly

allege that White’s race was a motivating factor in Defendants’ conduct

through direct or circumstantial evidence. See Heyne v. Metro. Nashville

Pub. Schs., 655 F.3d 556, 571 (6th Cir. 2011).

In Ivery v. Hudson, Chief Judge Cox recently granted a motion to

dismiss based substantively similar allegations. The Ivery plaintiffs

alleged that “[the defendants’] changing of Decedent’s cause of death from

‘homicide’ to ‘suicide’ was made due to the ethnicity, race, and economic

status of the decedent, constituting a violation of Plaintiffs’ Fourteenth

Amendment rights under 42 U.S.C. § 1983.” No. 22-12440, 2023 WL

3098779, at *2 (E.D. Mich. Apr. 26, 2023) (Cox, C.J.). The Ivery court

concluded that the plaintiffs’ allegations of race discrimination were

“conclusory,” because the plaintiffs “provide[d] no factual support for

their contention that [the defendants’] decision was based on Decedent’s

race or economic status.” Id.

In this case too, Plaintiffs do not specify any actions, statements,

motives, or evidence of intent supporting a plausible conclusion that

Defendants were acting with racial animus. In their complaint, Plaintiffs

rely solely upon “information and belief” that Defendants changed

White’s cause of death because of his race. ECF No. 1, PageID.7. No facts

are alleged, however, that meaningfully support this legal conclusion.

Plaintiffs point to the Ivery case as evidence of a pattern of

discrimination against Black decedents by Michigan county coroners. See

ECF No. 12, PageID.102–03. But one example of a Wayne County

Medical Examiner changing the cause of death of a Black decedent from

homicide to suicide—particularly when a court found no plausible claim

of discrimination in that case—does not support the conclusion that

Defendants here intentionally discriminated against White. Plaintiffs

seek to bolster their claim by citing a 2018 Washington Post article on

statistical disparities in arrests for Black homicide victims compared to

white victims. Id. at PageID.97–98. But statistics showing racial

disparities in homicide arrests are not germane to identifying racial

disparities in coroner cause-of-death determinations. And even if the

Ivery case and the arrest statistics did provide some support for Plaintiffs’

intentional discrimination theory, “[o]nly in rare cases will a statistical

pattern of discriminatory impact conclusively demonstrate a

constitutional violation” without further support. United States v. Avery,

137 F.3d 343, 356 (6th Cir. 1997).

Here, Plaintiffs’ reliance on a similar circumstance that involved

different actors and national statistics on homicide arrest rates from five

years ago fall far short of plausibly alleging “a clear pattern,

unexplainable on grounds other than race,” to show intentional

discrimination. Arlington Heights, 429 U.S. at 266. Indeed, even where

“historical patterns of discrimination created the conditions” that led to

the misconduct alleged, a plaintiff must still “connect [the defendant’s]

conduct to a discriminatory purpose” to survive a motion to dismiss. In re

Flint Water Cases, 384 F. Supp. 3d 802, 849 (E.D. Mich. 2019), aff’d and

remanded, 960 F.3d 303 (6th Cir. 2020). Therefore, Plaintiffs have failed

to adequately plead a Fourteenth Amendment intentional race

discrimination claim.

2. Whether Plaintiffs Have Sufficiently Alleged State

Action Lacking Rational Basis

Plaintiffs contend that even without demonstrating that racial

animus motivated Defendants’ conduct, they can still proceed under a

class-of-one theory of discrimination. Specifically, Plaintiffs allege that

“[i]f Defendants did not make a racial classification on Decedent, there

was still no rational basis for this decision and Defendant Hlavaty abused

her discretion by unreasonably determining that Decedent’s death was a

suicide.” ECF No. 1, PageID.7. The Supreme Court has “recognized

successful equal protection claims brought by a ‘class of one,’ where the

plaintiff alleges that she has been intentionally treated differently from

others similarly situated and that there is no rational basis for the

difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

(2000).

“A ‘class of one’ plaintiff may demonstrate that a government action

lacks a rational basis in one of two ways: either by ‘negativ[ing] every

conceivable basis which might support’ the government action or by

demonstrating that the challenged government action was motivated by

animus or ill-will.” Warren v. City of Athens, 411 F.3d 697, 711 (6th Cir.

2005) (alteration in original) (quoting Klimik v. Kent Cnty. Sheriff’s Dep’t,

91 F. App’x 396, 400 (6th Cir. 2004)). The Court has already explained

that Plaintiffs allege no facts to demonstrate that Defendants were

motivated by animus or ill-will toward White. Plaintiffs thus bear the

“heavy burden” of “demonstrat[ing] that the differential treatment they

were subjected to is so unrelated to the achievement of any combination

of legitimate purposes that the court can only conclude that the

[defendants’] actions were irrational.” TriHealth, Inc. v. Bd. of Comm’rs,

430 F.3d 783, 788 (6th Cir. 2005).

In other words, Defendants’ conduct must be upheld “if any

conceivable basis rationally supports it.” Id. at 790. Defendants have “no

obligation to produce evidence to sustain the rationality of [their] action;

[their] choice is presumptively valid and ‘may be based on rational

speculation unsupported by evidence or empirical data.’” Id. (quoting

Fed. Commc’ns Comm’n v. Beach Commc’ns, Inc., 508 U.S. 307, 315

(1993)).

Construing the complaint in the light most favorable to Plaintiffs,

the Court reads the claim as alleging that Defendants treated White

differently as compared to other decedents by changing his cause of death

to suicide without a rational basis. Plaintiffs argue that Defendants

“failed to consistently apply rules governing homicide investigations and

impermissibly deviated from these rules in [White’s] case.” Plaintiffs’

Supp. Brief Response, ECF No. 19, PageID.156. But Plaintiffs’ conclusory

allegations do not pass muster on a motion to dismiss.

Hlavaty’s amended report indicates that “[f]urther investigation by

police revealed that this wound was self-inflicted,” and “[c]rime scene

analysis” supported the conclusion that White could have pulled the

trigger with his non-dominant hand. ECF No. 1-5, PageID.22. While

Hlavaty’s amended postmortem report could have included a more

detailed factual basis for changing White’s cause of death, to plead “class

of one” discrimination, Plaintiffs need to plausibly allege that Defendants

conduct was wholly irrational. In their supplemental briefing, Plaintiffs

contend that Hlavaty improperly relied on “non-medical findings” and

insist that “the Detroit police department impermissibly interfered” in

the post-mortem examination. ECF No. 19, PageID.156. But these

allegations are not raised in the complaint and lack any factual

specificity. It is not at all clear what non-medical findings Hlavaty

wrongly relied on, or how the Detroit Police Department interfered.

To the extent Plaintiffs contend that it was improper for Hlavaty to

consider information such as the police investigation and crime scene

analysis, this argument is meritless. In fact, these types of evidence do

not constitute inappropriate police interference or “non-medical”

reasoning—they are the kind of rational basis that one would reasonably

expect a coroner to consider in deciding whether to change a decedent’s

cause of death. Plaintiffs’ allegations fail to plausibly refute this plainly

reasonable justification for Defendants’ conduct. See Rondigo, L.L.C. v.

Twp. of Richmond, 641 F.3d 673, 683 (6th Cir. 2011) (holding that the

plaintiffs failed to state a class-of-one claim despite arguing that the

defendants’ justification was “false and unsubstantiated” because such

conclusory allegations “do[] not alter the facial legitimacy of the state

defendants’ purpose for [their conduct]”); see also MacDonald v. City of

Detroit, 434 F. Supp. 3d 587, 598 (E.D. Mich. 2020) (dismissing the

plaintiff’s class-of-one claim because the “Plaintiff offer[ed] no arguments

to refute [the defendants’] cited justification”).

Because Plaintiffs have failed to state a constitutional violation,

Hlavaty is entitled to qualified immunity; Plaintiffs’ § 1983 claims

against her must be dismissed. See Essex v. Cnty. of Livingston, 518 F.

App’x 351, 356 (6th Cir. 2013) (“Because the facts as alleged by Plaintiffs

do not establish a constitutional violation by [the defendant] in his

individual capacity, we find that he is entitled to qualified immunity.”).

Furthermore, “[t]here can be no liability under Monell without an

underlying constitutional violation.” Robertson v. Lucas, 753 F.3d 606,

622 (6th Cir. 2014). Consequently, Plaintiffs’ Monell claim against Wayne

County is also dismissed.

B. Whether Plaintiffs Have Plausibly Pled State Tort Claims

At the outset, Plaintiffs concede that their state tort claims against

Defendant Wayne County may not be maintained. ECF No. 12,

PageID.109. Those claims are thus dismissed with prejudice. Plaintiffs

claim that Defendant Hlavaty is liable for gross negligence and negligent

infliction of emotional distress based on her decision to change White’s

cause of death. In response, Defendants argue that Hlavaty is entitled to

immunity from tort claims under the Michigan Governmental Tort

Liability Act (“GTLA”), meaning Plaintiffs’ tort claims against her must

be dismissed as well.

1. Defendant Hlavaty’s GTLA Immunity

The GTLA provides that “each officer and employee of a

governmental agency” is entitled to immunity from tort liability if all of

the following elements are satisfied:

(a) The officer, employee, member, or volunteer is acting or

reasonably believes he or she is acting within the scope of his or her

authority.

(b) The governmental agency is engaged in the exercise or discharge

of a governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduct does

not amount to gross negligence that is the proximate cause of the

injury or damage.

Mich. Comp. Laws § 691.1407(2)(a)–(c). Defendants do not appear to

dispute that Hlavaty was acting within the scope of her authority and

was engaged in the discharge of a governmental function on behalf of

Wayne County when she changed White’s cause of death. Rather,

Defendants contend that Plaintiffs have failed to plead that Hlavaty’s

conduct constituted the gross negligence.

As defined by the GTLA, “‘[g]ross negligence’ means conduct so

reckless as to demonstrate a substantial lack of concern for whether an

injury results.” Mich. Comp. Laws § 691.1407 (8)(a). Under Michigan law,

gross negligence is not an independent cause of action. See Jennings v.

Southwood, 521 N.W.2d 230, 233 (Mich. 1994); Xu v. Gay, 668 N.W.2d

166, 169 (Mich. Ct. App. 2003). Instead, Plaintiffs must adequately plead

that Defendants’ conduct was grossly negligent to avoid the GTLA’s

immunity bar. Brent v. Wayne Cnty. Dep’t of Hum. Servs., 901 F.3d 656,

700 (6th Cir. 2018); see also Tarlea v. Crabtree, 687 N.W.2d 333, 339

(Mich. Ct. App. 2004) (“By statute, to be liable in tort, a governmental

employee must act with gross negligence.”). Therefore, “a governmental

employee is entitled to governmental immunity against a claim of

negligence . . . when the employee owed no duty to the plaintiff, the

employee’s conduct was not grossly negligent, or the employee’s conduct

was not the proximate cause of the plaintiff’s injuries.” Dougherty v. City

of Detroit, 986 N.W.2d 467, 473–74 (Mich. Ct. App. 2021) (citations

omitted).

Defendants first argue that Hlavaty did not owe any duty to

Plaintiffs. Plaintiffs appear to allege that Hlavaty’s “duty” arises from

the Michigan statute requiring county medical examiners to investigate

violent deaths. Mich. Comp. Laws § 52.202. But the Michigan Supreme

Court has interpreted § 52.202 to outline duties that county medical

examiners “owe[] to the state.” Maiden v. Rozwood, 597 N.W.2d 817, 829

(Mich. 1999). Plaintiffs repeatedly assert that Hlavaty was obligated to

perform her statutory duties, but have not provided any factual or legal

support for finding that Hlavaty owed Plaintiffs a duty as the parents of

a decedent.

Moreover, Plaintiffs have not pled any legal or factual allegations

to support that Hlavaty owed them a duty under common law or because

of a special relationship. See Hoskin v. Detroit Med. Ctr., No. 357265,

2022 WL 4391027, at *4 (Mich. Ct. App. Sept. 22, 2022) (affirming

dismissal of negligence claims where the “[p]laintiff has not offered any

evidence or argument establishing that there was a legal relationship

between the parties,” the parties “never directly interacted,” and the

plaintiff “does not allege to have a special relationship with defendant”).

Therefore, Plaintiffs have failed to adequately plead that Hlavaty owed

a duty to them, such that their gross negligence claim must fail.

Even assuming for the sake of argument that Hlavaty owed

Plaintiffs a duty, Plaintiffs have not plausibly alleged that Hlavaty acted

with recklessness demonstrating “a substantial lack of concern for

whether an injury results.” Plaintiffs allege that Hlavaty made a

“baseless” determination in amending White’s cause of death to suicide,

ECF No. 12, PageID.108, and suggest that Defendants produced “false

documents” in investigating White’s death. ECF No. 1, PageID.9. But

Plaintiffs’ complaint provides no factual substantiation for these

conclusory allegations, and cannot support a finding that Hlavaty acted

with reckless disregard. “Simply alleging that an actor could have done

more is insufficient [to establish gross negligence] under Michigan law,

because, with the benefit of hindsight, a claim can always be made that

extra precautions could have influenced the result.” Tarlea, 687 N.W.2d

at 339. In fact, “saying that a defendant could have taken additional

precautions is insufficient to find ordinary negligence, much less

recklessness.” Id.; see also Dougherty, 986 N.W.2d at 476. Plaintiffs thus

cannot proceed on state tort claims against Hlavaty because she did not

owe them a duty, and even if she did, Plaintiffs have not adequately pled

that she acted with gross negligence.

2. Plaintiffs’ Negligent Infliction of Emotional Distress

Claim

Having concluded that Plaintiffs failed to plead gross negligence to

avoid Hlavaty’s immunity under the GTLA, the Court need not address

Plaintiffs’ negligent infliction of emotional distress (“NIED”) claim. In

short, Hlavaty is immune to tort liability for any potential NIED claim

because she did not owe Plaintiffs a legal duty.

But even if the Court were to find that Hlavaty acted with gross

negligence, Plaintiffs’ NIED claim must be dismissed as a matter of law.

“There is no cause of action in Michigan that allows a plaintiff to recover

damages simply because a defendant negligently caused emotional

distress.” Hoskin, 2022 WL 4391027, at *4. In fact, “Michigan recognizes

the tort of negligent infliction of emotional distress only when a plaintiff

witnesses negligent injury to a third party and suffers mental

disturbance as a result.” Teadt v. Lutheran Church Mo. Synod, 603

N.W.2d 816, 823 n.6 (Mich. Ct. App. 1999). Plaintiffs do not allege that

they witnessed any negligent injury. Plaintiffs merely rely on barebones

allegations that they suffered emotional distress because of Hlavaty’s

negligence, without pleading other essential elements of an NIED claim.

Thus, Plaintiffs’ NIED claim must be dismissed.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is

GRANTED. Plaintiffs’ state tort claims against Defendants are

DISMISSED with prejudice. Plaintiffs’ § 1983 claims are

DISMISSED without prejudice. If Plaintiffs intend to file an amended

complaint, Plaintiffs must file a motion for leave to file an amended

complaint by August 10, 2023.

IT IS SO ORDERED.

Dated: July 27, 2023 s/Terrence G. Berg

TERRENCE G. BERG

UNITED STATES DISTRICT JUDGE