Burrage v. Superior Court of Buncombe Co. et al

Filing 12

ORDER dismissing 1 Complaint as facially insufficient pursuant to U.S.C. 28:1915(e)(2)(B)(ii); Pltf shall have 14 days to file an Amended Complaint in accordance with this Order and all applicable rules and procedures, and i f Pltf's fails to file an Amended Complaint in accordance with this Order, this action will be dismissed and closed without prejudice and without further notice to Pltf; Clerk is directed to mail a copy of new Section 1983 complaint form to Pltf ; and granting in part and denying in part as stated in this Order Pltf's 9 , 11 Letters requesting to amend, and 10 "Amendment of Claim," construed as Motions for leave to file an Amended Complaint. (Amended Complaint due by 4/23/2018.) Signed by Chief Judge Frank D. Whitney on 4/09/2018. (Pro se litigant served by US Mail.) (ejb)

DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-335-FDW
ULYSSES BURRAGE,

)
)
Plaintiff,
)
)
vs.
)
)
SUPERIOR COURT OF BUNCOMBE )
COUNTY, et al.,
)
)
Defendants.
)
___________________________________ )

ORDER

THIS MATTER comes before the Court on initial review of Plaintiff’s Complaint, (Doc.
No. 1), as well as his pro se Letters requesting to amend, (Doc. No. 9, 11), and “Amendment of
Claim,” (Doc. No. 10).
I.

BACKGROUND

Pro se Plaintiff Ulysses Burrage, a pretrial detainee at the Buncombe County Detention
Facility, has filed a civil rights suit pursuant to 42 U.S.C. § 1983 with regards to the events
surrounding his arrest on December 9, 2016. He names as Defendants Superior Court Buncombe
County, Mission Hospital, Fire and Rescue of Asheville, and “others to be named.” (Doc. No. 1 at
3).
Construing the Complaint liberally and accepting the allegations as true, E.M.S. responded
to a call regarding an unresponsive man on December 9, 2016. They treated Plaintiff for heroin
overdose even though Plaintiff was only snoring and suffering a diabetic blood sugar emergency.
E.M.S. claimed that Plaintiff had a white, powdery substance. On the way to the hospital, Plaintiff
had seizures “from likely narcan mix.” (Doc. No. 1 at 4). The Asheville Police Department
responded to a dispatch for a drug overdose although there was no mention of drugs or
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paraphernalia at the scene or upon Plaintiff’s arrest. At the hospital, Plaintiff was given painful
shock treatments and seizure medication. A male nurse and male technician said that Plaintiff
voluntarily reached into his pocket and pulled out a film canister in his pocket that contained a
large amount of drugs. Plaintiff was arrested and has been at a detention facility since December
11, 2016 with no bond hearing, court appearance, or court date except for when he tried to replace
his lawyer. Plaintiff has tried at least three times to invoke his right to a speedy trial but he has
been unsuccessful. Plaintiff was not given a health screening upon entering custody. He now has
“lots of bumps and spots” all over his body and is being housed in a dorm with an inmate who
carries Hepatitis and another who has AIDS. (Doc. No. 1 at 6). Health violations are occurring
with regards to food in the facility. Food is brought to the dorm and is handled by random inmates
without gloves who have not been subjected to tuberculosis and Hepatitis screenings in violation
of health codes. Plaintiff was well on his way to earning an engineering degree and has been taken
away from his children, pregnant girlfriend, and mother.
Plaintiff alleges that his pretrial detention is being used as a weapon to force him into a
plea agreement and that Defendants are being deliberately indifferent to his rights.
Plaintiff seeks $50 million because seizures destroyed his brain cells, and because he has
been taken away from his career and family.
II. STANDARD OF REVIEW
Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the
Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In its frivolity
review, a court must determine whether the Complaint raises an indisputably meritless legal theory

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or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A complaint should not be dismissed for failure
to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff's complaint as
true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears
certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to
relief.’” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the
pleadings is particularly appropriate where … there is a pro se complaint raising civil rights
issues.”). However, the liberal construction requirement will not permit a district court to ignore
a clear failure to allege facts in his complaint which set forth a claim that is cognizable under
federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must
still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);
see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal
civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff
to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must
articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.
Id.
III.

DISCUSSION

“Section 1983 imposes liability on state actors who cause the deprivation of any rights,

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privileges or immunities secured by the Constitution.” Loftus v. Bobzien, 848 F.3d 278, 284 (4th
Cir. 2017) (quoting Doe v. Rosa, 795 F.3d 429, 436 (4th Cir. 2015)). To state a claim under § 1983,
a plaintiff must allege that the defendant, acting under the color of law, violated her federal
constitutional or statutory rights and thereby caused injury. Crosby v. City of Gastonia, 635 F.3d
634, 639 (4th Cir. 2011).
The Superior Court Buncombe County is not a “person” who is subject to suit under §
1983. See generally Will v. Michigan Dept. of State Police, 491 U.S. 58 (1978)(“person” does not
encompass states and state agencies); see, e.g., Wood v. Com. of Va., 320 F.Supp. 1227, 1228
(W.D. Va. 1971) (§ 1983 does not include either a state or a state court).
“Asheville Fire & Rescue” does not exist. Plaintiff fails to either adequately identify the
party against whom he intends to proceed or state the basis for § 1983 liability. See generally
Pembaur v. City of Cincinnati, 475 U.S. 469, 485 (1986); Monell v. Dep’t of Social Servs., 436
U.S. 658, 694 (1978).
The Mission Hospital appears to be a private entity and Plaintiff has failed to explain how
its actions are “fairly attributable to the State.” DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir.
1999) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (if the defendant is not a
state actor, there must be a “sufficiently close relationship with state actors such that a court would
conclude that the non-state actor is engaged in the state’s actions.”).
Plaintiff’s reference to “others to be named” is also insufficient. John Doe suits are
permissible only against “real, but unidentified, defendants.” Schiff v. Kennedy, 691 F.2d 196,
197 (4th Cir. 1982). The designation of a John Doe defendant “is generally not favored in federal
courts; it is appropriate only when the identity of the alleged defendant is not known at the time
the complaint is filed and the plaintiff is likely to be able to identify the defendant after further

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discovery.” Njoku v. Unknown Special Unit Staff, 217 F.3d 840, 840 (4th Cir. 2000). “[I]f it does
not appear that the true identity of an unnamed party can be discovered through discovery or
through intervention by the court, the court could dismiss the action without prejudice.” Schiff,
691 F.2d at 197-98 (because it appeared that John Doe was an actual person, it was error for the
district court to conclude that, under appropriate circumstances, this type of case would not be
permitted). Plaintiff has made no attempt to identify the individuals against whom he intends to
proceed.
Plaintiff’s claims are too vague and conclusory to facially state the violation of any
constitutional right. See Fed. R. Civ. P. 8(a)(2) (requiring a short and plain statement of the claim);
Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege facts,
directly or indirectly, that support each element of the claim); Simpson v. Welch, 900 F.2d 33, 35
(4th Cir. 1990) (conclusory allegations, unsupported by specific allegations of material fact are not
sufficient).
Moreover, Plaintiff appears to ask the Court to interfere in ongoing State court proceedings.
As a general matter, federal courts must refrain from staying or enjoining pending state
prosecutions except under special circumstances. Younger v. Harris, 401 U.S. 37 (1971). Younger
v. Harris, 401 U.S. 37 (1971). The Younger abstention doctrine extends to state civil proceedings
that are akin to criminal prosecutions, Huffman v. Pursue Ltd., 420 U.S. 592 (1972), or that
implicate a state’s interest in enforcing the orders and judgments of its courts, Pennzoil Co. v.
Texaco Inc., 481 U.S. 1 (1987). Proceedings fitting within the Younger doctrine include state
criminal prosecutions, civil enforcement proceedings, and civil proceedings involving certain
orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.
New Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 367-68 (1989).

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A federal court may disregard Younger’s mandate to abstain from interfering with ongoing state
proceedings only where extraordinary circumstances exist that present the possibility of irreparable
harm. Robinson v. Thomas, 855 F.3d 278, 285 (4th Cir. 2017) (internal quotations omitted).
For all the foregoing reasons, the Complaint is insufficient to proceed at this time.
IV.
(1)

PENDING MOTIONS

Motion for the Appointment of Counsel
The Complaint includes a request for the appointment of counsel. Plaintiff argues that a

lawyer will bring “necessary clarity” to the case. (Doc. No. 1 at 6).
There is no absolute right to the appointment of counsel in civil actions such as this one.
Therefore, a plaintiff must present “exceptional circumstances” in order to require the Court to
seek the assistance of a private attorney for a plaintiff who is unable to afford counsel. Miller v.
Simmons, 814 F.2d 962, 966 (4th Cir. 1987). This case does not present exceptional circumstances
that justify appointment of counsel.
Therefore, the motion to appoint counsel that is incorporated in the Complaint will be
denied.
(2)

Motions to Amend
Plaintiff’s Letters, (Doc. Nos. 9, 10), and “Amendment of Claim” (Doc. No. 11), are

construed as Motions for Leave to Amend Complaint. They will be denied because Plaintiff has
not attached a proper proposed Amended Complaint to his motions. Rather, Plaintiff seeks to
supplement the original complaint with additional claims.
In order to amend his Complaint, Plaintiff may not simply add allegations or parties to his
existing Complaint. Rather, he must submit a proposed Amended Complaint within 14 days of this
Order that contains all claims he intends to bring in this action against all Defendants he intends

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to sue. He will not be permitted to amend his Complaint in piecemeal fashion. Plaintiff is
reminded that, despite his pro se status, he must comply with all applicable procedures and rules
including the Federal Rules of Civil Procedure and the Court’s Local Rules. His attention is
particularly drawn to Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires a “short
and plain” statement of the claim that explains how each of the Defendants violated his rights. Any
Amended Complaint will supersede the original Complaint and therefore any Defendants or claims
not contained in the Amended Complaint will be waived. Plaintiff’s failure to timely file an
Amended Complaint that complies with this Order will result in this case being dismissed and
closed without prejudice and without further notice to Plaintiff.
IV.

CONCLUSION

For the foregoing reasons, the Complaint will be dismissed for facial insufficiency, the
incorporated motion for appointment of counsel will be denied, and Plaintiff’s motions to amend
will be denied without prejudice to file an Amended Complaint that complies with this Order
within 14 days.
IT IS THEREFORE ORDERED that:
(1) The Complaint, (Doc. No. 1), is DISMISSED as facially insufficient pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
(2) Plaintiff shall have fourteen (14) days in which to file an Amended Complaint in
accordance with this Order and all applicable rules and procedures. If Plaintiff fails to
file an Amend Complaint in accordance with this Order, this action will be dismissed
and closed without prejudice and without further notice to Plaintiff.
(3) The Clerk is directed to mail a copy of a new Section 1983 complaint form to Plaintiff.
(4) Plaintiff’s Letters, (Doc. No. 9, 11), and “Amendment of Claim,” (Doc. No. 10), are

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construed as Motions for leave to file an Amended Complaint and are GRANTED
in part and DENIED in part as stated in this Order.
Signed: April 9, 2018

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