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Burrage v. Superior Court of Buncombe County

United States District Court, W.D. North Carolina, Asheville Division

April 9, 2018



          Frank D. Whitney, Chief United States District Judge.

         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 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.


         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 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.


         “Section 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).

         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 ...

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