# Burchette v. Brown

> District Court, W.D. North Carolina · February 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10255515

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** February 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10255515

## How later opinions describe it (automated extraction)

- stating that under § 1983, liability is personal in nature, and the doctrine of respondeat superior does not apply

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:19-cv-00080-FDW

KEVIN DREW BURCHETTE, )
)
Plaintiff, )
)
vs. ) ORDER
)
)
ERIK A. HOOKS, et al., )
)
Defendants. )
_________________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s Amended Complaint
filed under 42 U.S.C. § 1983 [Doc. 23], see 28 U.S.C. § 1915(a), which the Court also construes
a motion to amend Complaint.
I. BACKGROUND
On June 7, 2019, Plaintiff Kevin Drew Burchette (“Plaintiff”), who is currently
incarcerated at Ashe County Detention Center in Jefferson, North Carolina, filed a Complaint
under 42 U.S.C. § 1983 against eleven defendants. [Doc. 1]. Thereafter, Plaintiff moved to amend
his Complaint but failed to include a proposed amended complaint with that motion. [Doc. 21].
Plaintiff indicated that he would be “seeking to make this a class action suit and change the
defendants, add some plaintiffs and change the legal claim please.” [Id.]. The Court denied
Plaintiff’s motion without prejudice and advised Plaintiff of the requirements under Rules 18(a)
and 20(a)(2) of the Federal Rules of Civil Procedure regarding joinder of claims and joinder of
parties should he choose to file an amended complaint. [Doc. 22].
On December 23, 2019, Plaintiff filed a proposed Amended Complaint [Doc. 23], which
the Court also construes as a motion to amend. Plaintiff’s Amended Complaint purports to be
brought on behalf of Plaintiff, Ethan B. Chambers (“Plaintiff Chambers”), Skylar Branson
(“Plaintiff Branson”), and “Multitude of John Doe’s/Supervisee’s/Victims” (“John Doe
Plaintiffs”). [Doc. 23 at 2, 12]. Plaintiff identifies Plaintiffs Chambers and Branson as inmates at
the Ashe County Detention Center. [Id. at 12]. Plaintiff names the following individuals as
Defendants in this matter: (1) Erik A. Hooks, identified as the Secretary of the Department of

Public Safety; (2) Willis J. Fowler, identified as Chairman of the Commission; (3) Graham H.
Atkinson, identified as Commissioner for Commission; (4) Eric A. Montgomery, identified as
Commissioner for Commission; (5) Angela R. Bryant, identified as Commissioner for
Commission; (6) Barry W. Cox, identified as “CPPO;” (7) Jake J. Brown, identified as “P/PO;”
(8) Lisa J. Hunt, identified as “CPPO;” and (9) Kevin G. Gallimore, identified as “P/PO.” [Doc.
23 at 2-3, 12-13].
Plaintiff generally claims violation of the Fourth, Fifth, Eighth, and Fourteenth
Amendments to the U.S. Constitution, which he describes as “ultimately deprivation of life.”
[Doc. 1 at 3]. As grounds under § 1983, Plaintiff states, “conversion of legislative mandates into

excessive false imprisonment terms.” [Id. at 4]. Plaintiff alleges that the incompetence of the
Department of Public Safety has “victimized a multitude of citizens or defendants, making for
disproportionate and excessive imprisonment terms.” [Id. at 14]. Plaintiff alludes to
“manipulate[ion of] the statutory mandates imposed” for post-release supervisees. [Id.]. As for
facts particular to Plaintiff, he alleges that he was in the custody of the Ashe County Detention
Center, serving two presumably consecutive terms of incarceration. He claims his custodial
sentence should have ended on April 13, 2018. [Id. at 15]. Plaintiff further alleges as follows:
Now on April 14, 2018 I was falsely and wrongfully imprisoned and
“deprived my liberty and life” because of this mis-application. This
imprisonment term was to terminate at maximum imposed April 13
2018 per commencement of the post-release supervision which is a
9 month 270 day term post the maxima. Then on July 7, 2018 I was
falsely arrested on a Commission Warrant and then falsely and
wrongfully imprisoned for 366 days or until July 8, 2019 without
even a bond.

[Doc. 1 at 15]. Ultimately, Plaintiff claims he “was detained without bond for 366 days in relations
to this misadministration.” [Id. at 4]. Plaintiff makes no particular allegation relative to any
named Defendant in this matter, other his allegation that “[i]t’s the Secretary of Public Safety’s
responsibility as to the control and custody of all prisoners or defendants serving an imprisonment
term.” [Id. at 15].
For relief, Plaintiff seeks declaratory and injunctive relief, as well as $108,000 in damages
for himself and $150 million in damages for the class of victims he intends to name but has not
yet identified. [Doc. 1 at 5].
II. STANDARD OF REVIEW
The Court must review Plaintiff’s Complaint to determine whether it is subject to dismissal
on the grounds that it is “frivolous or malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). Furthermore, § 1915A requires an initial review of a “complaint
in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity,” and the court must identify cognizable claims or dismiss the complaint,
or any portion of the complaint, if the complaint is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or seeks monetary relief from a defendant who is immune from
such relief.
In its frivolity review, this 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). Furthermore,
a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972).
However, the liberal construction requirement will not permit a district court to ignore a clear
failure to allege facts 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).
III. DISCUSSION
The Plaintiff’s Complaint fails initial review for several reasons.

First, Plaintiff’s claim appears to be based on what he contends is a wrongful arrest and/or
charge in criminal proceedings in State court, being detained on this charge without bond, and,
possibly, on his having served an extra day in prison in relation to State convictions. Plaintiff’s
claim, therefore, is barred by Heck v. Humphries, 512 U.S. 477 (1994). In Heck, the United States
Supreme Court held as follows:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance
of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not been
so invalidated is not cognizable under § 1983. Thus, when a state
prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it
would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated. But if the district court determines that the plaintiff’s
action, even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed, in the absence of some other bar to
the suit.

Id. at 486-87 (footnotes omitted; emphasis added). Here, given the nature of much of the
allegations in the Complaint, a judgment in Plaintiff’s favor would necessarily imply the invalidity
of a conviction or sentence in the underling criminal matter(s). Plaintiff, however, has not alleged
that his conviction(s) or sentence has been reversed or otherwise invalidated. Therefore, his
Complaint is barred by Heck.
Further, Plaintiff complains that he was wrongfully arrested, but does not allege whether
the criminal proceedings related to the offense at issue are ongoing, although Plaintiff does allege
he was released on July 8, 2019. In Younger v. Harris, the Supreme Court held that a federal court

should not interfere with state criminal proceedings except in the most narrow and extraordinary
of circumstances. 401 U.S. 37, 43-44 (1971). Under the Younger abstention doctrine, abstention
is proper in federal court when (1) there is an ongoing state court proceeding; (2) the proceeding
implicates important state interests; and (3) the plaintiff has an adequate opportunity to present the
federal claims in the state proceeding. Emp’rs Res. Mgmt. Co. v. Shannon, 65 F.3d 1126, 1134
(4th Cir. 1995). Here, the Court lacks sufficient information to determination whether the elements
of Younger have been met, but they very well may be.
Even if Heck and Younger did not apply, Plaintiff has, nonetheless, failed to state a claim
as to any Defendant. Plaintiff alleges nothing that can be construed to support any personal

participation by any Defendant in violation of Plaintiff’s constitutional rights. As such, Plaintiff’s
claim against Defendants appear to be based on supervisory liability, which is not a recognized
basis for liability in § 1983 cases, in any event. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694 (1978) (stating that under § 1983, liability is personal in nature, and the doctrine of respondeat
superior does not apply). Plaintiff, therefore, has failed to state a claim against any Defendant.
Furthermore, even if Plaintiff had stated a claim, which he has not, the Court would not
allow this lawsuit to proceed as a class action. First, Plaintiffs have not established that the four
prerequisites to a class action under Rule 23(a) of the Federal Rules of Civil Procedure, i.e.,
numerosity, typicality, commonality, and adequacy of representation, are met in this case. Fed. R.
Civ. P. 23(a). In fact, no allegations regarding Plaintiffs Chambers and Branson even appear in
the Complaint. Furthermore, although each plaintiff may appear on his own behalf, he may not
appear as an attorney for other persons in a class action. McShane v. United States, 366 F.2d 286,
288 (9th Cir. 1966) (non-lawyer had no authority to appear as an attorney for other persons in a
purported class action); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (plain error to

permit an inmate proceeding pro se to represent fellow inmates in a class action). Accordingly,
certification of this lawsuit as a class action is inappropriate.
Finally, as for the fact that this case involves multiple prisoner plaintiffs, Rule 20 of the
Federal Rules of Civil Procedure provides that plaintiffs may join in one action if they assert any
right to relief arising out of the same occurrence or series of occurrences and if any question of
law or fact in common to all plaintiffs will arise in the action. See Fed. R. Civ. P. 20. Rule 21 of
the Federal Rules of Civil Procedure, however, authorizes the Court to drop parties and to sever
claims on just terms. See Fed. R. Civ. P. 21. This Court finds that, even if Plaintiffs had stated a
claim and were properly joined, allowing this action to go forward as it currently stands would

simply create too many logistical problems for the Court and for the parties. Plaintiffs are inmates
proceeding pro se, and, although each plaintiff may appear on his own behalf, none may appear as
an attorney for the others. Johns v. Cnty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997).
Therefore, during the prosecution of this action, each plaintiff would be required to sign and submit
his own motions and notices related to his claims in the action, and all plaintiffs would be required
to individually sign any motion or notice filed on behalf of all plaintiffs. Furthermore, because of
prison regulations of inmate-to-inmate correspondence, Plaintiffs would have, at most, a very
limited opportunity to discuss case strategy, share discovery, or even provide each other copies of
the motions and notices they file with the Court. As such, these Plaintiffs must proceed separately,
if at all.
As such, the Court will allow Plaintiff thirty (30) days to amend his Complaint in
accordance with all terms of this Order, taking into account all of the Court’s holdings. The
Plaintiff is again advised that to amend his Complaint, Plaintiff may not simply add or modify
allegations to his already existing Complaint. Rather, he must submit an amended complaint that

contains all claims he intends to bring in this action against all Defendants he intends to sue. That
is, a plaintiff may not amend his Complaint in piecemeal fashion. Furthermore, once Plaintiff
amends his Complaint, the original Complaint will be superseded, meaning that if an amended
Complaint omits claims raised in the original Complaint, the plaintiff has waived the omitted
claims. Young v. City of Mt. Ranier, 238 F.3d 567 (4th Cir. 2001).
IV. CONCLUSION
For the reasons stated herein, Plaintiff shall have thirty (30) days in which to amend his
complaint in accordance with this Order. If Plaintiff fails to timely amend his Complaint in
accordance with the terms of this Order, the Complaint will be dismissed without prejudice.

IT IS, THEREFORE, ORDERED that:
1. Plaintiff shall have thirty (30) days in which to amend the complaint in accordance with
the terms of this Order. If Plaintiff fails to amend the complaint in accordance with
this Order and within the time limit set by the Court, this action will be dismissed
without prejudice and without further notice to Plaintiff.
2. Plaintiff’s motion to amend [Doc. 23] is GRANTED and Plaintiff’s Proposed
Amended Complaint [Doc. 23] shall be docketed as Plaintiff’s Amended Complaint.
3. The Clerk is respectfully instructed to docket Plaintiff’s Proposed Amended Complaint
[Doc. 23] as Plaintiff’s Amended Complaint and to amend the named Defendants
accordingly.
4. The Clerk is respectfully instructed to mail Plaintiff a new Section 1983 form for
Plaintiff to submit an amended complaint, if he so wishes.

Signed: February 3, 2020

Frank D. Whitney é
Chief United States District Judge ~*#**

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10255515. Public record. Not legal advice.