United States District Court, W.D. North Carolina, Asheville Division
D. Whitney, Chief United States District Judge.
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).
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).
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 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.
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.
seeks $50 million because seizures destroyed his brain cells,
and because he has been taken away from his career and
STANDARD OF REVIEW
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 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)).
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.
1983 imposes liability on state actors who cause the
deprivation of any rights, privileges or immunities secured
by the Constitution.” Loftus v. Bobzien, 848
F.3d 278, 284 (4thCir. 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).
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
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 ...