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Livingston v. Kehagias

United States District Court, E.D. North Carolina, Western Division

September 18, 2017

KATHY LIVINGSTON, as Administratrix of The Estate of John David Livingston, II, etal., Plaintiffs,
v.
NICHOLAS KEHAGIAS, both individually and in his official capacity as law enforcement officer with the Harnett County Sheriffs Department, et al, Defendants.

          ORDER

          TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.

         This cause comes before the Court on defendants' partial motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiffs have responded, defendants have replied, and in this posture the matter is ripe for ruling. For the reasons that follow, defendants' motion is granted in part and denied in part.

         BACKGROUND

         This 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. These incidents are alleged to have taken place between January 1, 2015, and November 15, 2015.[1]

         Following a hearing held on April 27, 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]. Plaintiffs thereafter filed an amended complaint and defendants filed an answer and the instant motion. Defendants seek dismissal of plaintiffs' § 1983 claims against defendants who are not alleged to have been involved in the incidents complained of; plaintiffs' § 1983 Monell claims against Sheriff Coats in his official capacity; plaintiff Cardwell's civil conspiracy claim; and causes of action seven, fifteen, twenty-one, twenty-eight, and thirty-two as there is no recognized independent tort of "malice, corruption, and acts outside the scope of official duties."

         DISCUSSION

         A Rule 12(c) motion for judgment on the pleadings raising the defense of failure to state a claim upon which relief can be granted is assessed under the Rule 12(b)(6) standard. Edwards v. Cityof Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain, 478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A complaint must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " and mere recitals of the elements of a cause of action supported by conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         A. § 1983 claims against particular defendants not alleged to have been involved Defendants seek dismissal of plaintiffs' § 1983 claims as follows: plaintiff Broom's § 1983 claims against Kehagias, Werbelow, and Knight; plaintiff Cardwell's § 1983 claims against Werbelow; plaintiffs Bethune and Holloway's § 1983 claims against Werbelow, Klingman, and Knight; plaintiff Wright's § 1983 claims against Werbelow, Klingman, and Knight; and plaintiff Estate of Livingston's § 1983 claims against Klingman and Knight. Plaintiffs in response contend that they have not alleged any § 1983 claims against particular defendants who were not involved in a particular incident. Plaintiffs clarify in their response that their § 1983 claims have been alleged as follows:

Plaintiff Estate of Livingston has only asserted § 1983 claims against Defendants Kehagias and Werbelow (see 1st Cause of Action), and against Defendants Rollins and Coats (see 2nd Cause of Action);
Plaintiff Cardwell has only asserted § 1983 claims against Defendants Kehagias, Klingman, and Knight (see 1st Cause of Action), and against Defendants Rollins and Coats (see 2nd Cause of Action);
Plaintiff Broom has only asserted § 1983 claims against Defendant Klingman (see 1st Cause of Action), and against Defendants Rollins and Coats (see 2nd Cause of Action);
Plaintiff Wright has only asserted § 1983 claims against Defendant Kehagias (see 1st Cause of Action), and against Defendants Rollins and Coats (see 2nd Cause of Action);
Plaintiffs Bethune and Holloway have only asserted § 1983 claims against Defendant Kehagias (see 1st Cause of Action), and against Defendants Rollins and Coats (see 2nd Cause of Action).

         Plaintiffs' amended complaint shall be read to reflect the §1983 allegations against particular defendants as provided by plaintiffs and listed above. Plaintiffs' allegation of joint and several liability relating to their § 1983 claims may remain at this stage. See [DE 59] Amd. Cmp. ¶ 41; Thomas v. Cook Cty. Sheriff's Dep't,604 F.3d 293, 315 (7th Cir. 2010) ("liability among defendants in a § 1983 case is joint ...


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