United States District Court, E.D. North Carolina, Western Division
KATHY LIVINGSTON, as Administratrix of The Estate of John David Livingston, II, et al, Plaintiffs,
NICHOLAS KEHAGIAS, both individually and in his official capacity as law enforcement officer with the Harnett County Sheriffs Department, et al, Defendants.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendants' partial
motion to dismiss pursuant to Rules 12(b)(1), (2), and (6) of
the Federal Rules of Civil Procedure. Plaintiffs have
responded, defendants have replied, and the matter is ripe
for ruling. Also before the Court and ripe for adjudication
are two motions to sever pursuant to Rules 20, 21, and 42 of
the Federal Rules of Civil Procedure. A hearing was held on
these matters before the undersigned on April 27, 2017, at
Raleigh, North Carolina. For the reasons that follow,
defendants' motion to dismiss is denied without prejudice
and the motions to sever are denied.
case was brought by six plaintiffs against four deputy
sheriffs and two sheriffs of Harnett County, North Carolina.
Each plaintiff alleges that one or more of the deputy
defendants used excessive force against him or her and that
the deputies executed their duties in a grossly negligent
manner. The plaintiffs further allege that the Sheriffs
Office under the leadership of Sheriffs Rollins and Coats has
a long and disturbing history of police misconduct and that
the Office leadership has either condoned or turned a blind
eye to misconduct by their deputies. Below is a brief summary
of the facts alleged by the individual plaintiffs. These
incidents took place between January 1, 2015, and November
Estate of John Livingston: Responding to a domestic
assault disturbance which had been reported from a different
address and involved different individuals, defendants
Kehagias and Werbelow entered Livingston's home without a
warrant, consent, or probable cause at 3:4O a.m. on a Sunday
morning. When Livingston challenged their entry, he was
pinned face down, beaten, pepper-sprayed, and tased. Kehagias
then shot Livingston three times, resulting in
Michael Cardwell: Cardwell, 66 years old, called 911
seeking help with medical issues. Defendants Kehagias,
Knight, and Klingman responded. Cardwell was standing in his
driveway when the deputies arrived and Kehagias bull-rushed
Cardwell, pinning his body to the back of a truck and lifting
it off the ground. Cardwell was handcuffed, pinned face down,
and pepper-sprayed in the face. Cardwell's femur and hip
were fractured; he was charged with resisting an officer. The
charge was later dismissed.
Christine Broom: Broom rented a room in her house to a
man who abused alcohol and drugs. After her tenant had
arrived home one night intoxicated, Broom made an agreement
with the tenant that he would not enter the home in that
state as she feared for her own and her daughter's
safety. On the night in question, the tenant attempted to
gain access to the house while intoxicated. He called the
police, and defendant Klingman and another deputy proceeded
to break into Broom's home, wedging the door with a
screwdriver and prying it open. Broom was arrested for
resisting an officer; the charge was later dismissed.
Wesley Wright: Wright was attending a family birthday
party at the home he shared with his uncle when defendant
Kehagias arrived to investigate a disturbance complaint.
While Kehagias was standing in the yard talking to
Wright's uncle, Wright yelled something from the porch of
the home and went inside. Kehagias demanded that the uncle
open the door, entered the home, and drew his gun on Wright.
Kehagias then grabbed Wright and proceeded to slam
Wright's body as he dragged him out of the house and into
the yard. Kehagias emptied an entire bottle of pepper spray
into Wright's face while he pinned Wright's body
down. Wright was charged with resisting an officer; the
charge was later dismissed.
Tyrone Bethune and Ryan Holloway: Defendant Kehagias
arrived at Bethune's home after midnight stating first
that he was investigating a suicide call that had been traced
to the home and later that he was looking for an individual
named Robert Cox. When Holloway attempted to end the
encounter after denying that either he or Bethune had made a
suicide call or knew the whereabouts of Cox, Kehagias put his
foot in the doorway to prevent the door from closing. Bethune
informed Kehagias that he could not enter without a warrant
and Kehagias dragged Bethune out of the house and handcuffed
him. Bethune had taken his cell phone out to record the
incident; when Kehagias saw the phone he slammed Bethune
face-first into the porch, chipping his tooth. Kehagias then
searched the entire residence and without finding evidence of
any criminal activity took Bethune to jail.
plaintiffs have alleged forty-three causes of action,
bringing claims for, inter alia, violations of their
civil rights under 42 U.S.C. § 1983, negligence, gross
negligence, civil conspiracy, assault and battery, and false
imprisonment. Plaintiffs also allege that the Sheriff
defendants engaged in a pattern or practice of deliberately
suppressing information to the public about the misconduct of
their officers and employees and that the individual deputy
defendants engaged in a pattern and practice of using
excessive force, wrongly charging citizens with resisting
arrest, and unlawfully gaining entry into citizens'
the hearing held on 27 April 2017, plaintiffs with the
consent of defendants filed a stipulation of dismissal of a
number of claims "in an effort to streamline this
litigation and promote judicial economy and efficiency".
[DE 50]; Fed.R.Civ.P. 4l(a)(1)(ii). Plaintiffs are DIRECTED
to file an amended complaint reflecting only the remaining
claims and parties within seven days of the date of entry of
this order. Defendants' motion to dismiss is DENIED
WITHOUT PREJUDICE, with permission to refile within seven
days of the filing of the amended complaint. Plaintiffs'
response to any motion to dismiss shall be filed not later
than fourteen days after the filing of the motion, and any
reply shall be filed within seven days of the response.
before the Court are two motions to sever the plaintiffs'
claims for trial, one filed by defendants and a second filed
jointly by plaintiffs and defendants. See Fed. R.
Civ. P. 20(b); 42(b). Following the hearing in this matter,
plaintiffs filed a notice withdrawing their consent to
severance of their claims for trial. [DE 51]. A court may
order separate trials of issues or claims "[f]or
convenience, to avoid prejudice, or to expedite and
economize". Fed.R.Civ.P. 42(b). A court may further
order separate trials to protect any party from
embarrassment, delay, expense, or other prejudice.
Fed.R.Civ.P. 20(b). In deciding whether severance is
[t]he critical question for the  court [is] whether the
specific risks of prejudice and possible confusion [are]
overborne by the risk of inconsistent adjudications of common
factual and legal issues, the burden on parties, witnesses
and available judicial resources posed by multiple lawsuits,
the length of time required to conclude multiple suits as
against a single ...