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UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA 

Richmond Division

In re: Kevin Colin Doherty, Case No. 20-31088-KLP 

Kevin Colin Doherty, 

 Plaintiff, 

v. Adv. Pro. No. 21-03005-KLP 

Unknown, 

 Defendants. 

MEMORANDUM OPINION AND ORDER 

 Before the Court is the motion filed by incarcerated Debtor Kevin Colin 

Doherty (the “Debtor”) to reopen his case (the “Motion to Reopen”) to pursue a 

dischargeability action. ECF 50. The Debtor filed his chapter 7 case on 

February 28, 2020, and received a chapter 7 discharge on August 12, 2020. 

However, the Debtor’s case is not closed.1 Therefore, the Motion to Reopen 

will be denied as moot. 

 Also before the Court is the Debtor’s Motion to Discharge Certain 

Debts Due to Hardship (the “Dischargeability Motion”). ECF 51. However, a 

request to have a debt declared nondischargeable must be filed as an 

adversary proceeding. See Bankruptcy Rule 7001(6), Fed. R. Bankr. P. 

7001(6). The Dischargeability Motion must therefore be denied as well. The 

Debtor has also filed a separate complaint (the “Complaint”) seeking to have 

1 The Debtor’s case was initially dismissed and subsequently closed, but the 

dismissal was vacated and the case reopened by order entered July 28, 2020. ECF 

42. 

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his student loan indebtedness declared nondischargeable under § 523(a)(8) of 

the Bankruptcy Code, 11 U.S.C. § 523(a)(8).2 This being the appropriate 

procedure to use when seeking such relief from the Court, the Court will 

address the Debtor’s Complaint. 

Section 523(a) provides that a chapter 7 discharge does not discharge a 

debtor from certain debts. Subsection (a)(8)(A)(1) excludes from discharge “an 

education benefit . . . loan made, insured or guaranteed by a governmental 

unit, or made under any program funded in whole or in part by a 

governmental unit or nonprofit institution.” This exclusion may be overridden 

if “excepting such debt from discharge under this paragraph would impose an 

undue hardship on the debtor and debtor’s dependents.” 11 U.S.C. 

§ 523(a)(8). 

In the Complaint, the Debtor asks the Court to find that his 

educational loans are nondischargeable because to require repayment would 

constitute an undue hardship. In support of the Complaint, the Debtor filed a 

declaration on the Adversary Proceeding’s docket, signed by him under the 

penalty of perjury, that set forth his income as an incarcerated individual. In 

that declaration, he stated that he will be incarcerated until at least 2025 

and perhaps until 2041. ECF 2. 

After the Debtor filed the Complaint, the Court issued a summons and 

notice setting a pre-trial conference on April 14, 2021. Upon receipt of the 

2 The Complaint initiated Adversary Proceeding 21-03005-KLP. 

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summons, the Debtor filed a motion asking the Court to “Order [the Debtor’s] 

Appearance or to Make Alternative Appearance Options Available for 

4/14/2021 Proceeding” (the “Appearance Motion.”). In the Appearance Motion, 

the Debtor asked the Court to order the warden at the correctional institution 

where the Debtor is being held to provide a means by which he might attend 

the pre-trial conference. The Court interprets this request as also being a 

request to order the warden to accommodate the Debtor’s further electronic 

or transportation needs in the Adversary Proceeding. The Court declines to so 

do for the reasons set forth below. 

It is not the practice of this Court to interfere with the way state 

correctional officials perform their duties. If the Debtor has issues with the 

way in which the correctional institution impedes him in his efforts to pursue 

this civil litigation, he should take that up with the institution directly, or in 

a court having jurisdiction to hear prisoner complaints. 

It is not guaranteed that the Debtor has a constitutional right to 

pursue a civil suit while imprisoned. As pointed out in Futch v. Roberts (In re 

Roberts), Adversary No. 06–04028, 2007 WL 7022207, at *1 (Bankr. S.D. Ga. 

Feb. 8, 2007): 

In Lewis v. Casey, 518 U.S. 343, 355, 116 S. Ct. 2174, 135 L. Ed. 2d 606 

(1996), the court stated that a prisoner's right of access to the courts 

“does not guarantee inmates the wherewithal to transform themselves 

into litigating engines capable of filing everything from shareholder 

derivative actions to slip-and-fall claims.” While a prisoner's right of 

access to the court includes the ability to “attack their sentences, directly 

or collaterally, and to challenge the conditions of their confinement,” the 

impairment of “any other litigating capacity is simply one of the 

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incidental (and perfectly constitutional) consequences of conviction and 

incarceration.” Id. Courts have read Lewis to conclude that prisoners do 

not have a constitutional right of access to the courts for the litigation of 

unrelated civil claims 

. 

Separate from the issue of access to the Court, the Court notes that the 

Complaint is not in the format of a Complaint but rather is in the format of a 

motion. There is no indication of who the defendant(s) are, and there is no 

indication that any defendants have been served. This is a requirement for 

any complaint filed initiating an adversary proceeding. See Federal Rule of 

Civil Procedure 4(a)(1)(A), 4(c)(1), Fed. R. Civ P. 4(a)(1)(A), 4(c)(1), made 

applicable by Rule 7004(a)(1) of the Federal Rules of Bankruptcy Procedure, 

Fed. R. Bankr. P. 7004(a)(1). Because of this failure, the Court has no 

evidence that the unknown defendants have any knowledge of this Adversary 

Proceeding and the requirement that they file a timely answer. 

Further, the burden is on the Debtor to prove that it would be an 

undue hardship upon him if the educational loan(s) at issue were not 

discharged. Dischargeability of the loan must be established by the 

preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291 (1991). 

Because the Debtor has pled in the Appearance Motion that he is unable to 

attend any hearings, whether in person or by Zoom, the Court finds that 

whether he will be able to carry his burden of proof is problematic. 

Despite all the deficiencies set forth above, the Debtor is not without 

recourse. Federal Rule of Civil Procedure 4(m), Fed. R. Civ. P. 4(m), made 

applicable by Bankruptcy Rule 7004(a)(1) (Rule 4), provides in part that: 

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If a defendant is not served within 90 days after the complaint is filed, 

the court—on motion or on its own after notice to the plaintiff—must 

dismiss the action without prejudice against that defendant or order 

that service be made within a specified time. But if the plaintiff shows 

good cause for the failure, the court must extend the time for service for 

an appropriate period. 

Id. (emphasis added). 

Because of the Debtor’s situation, the Court will not dismiss the 

Complaint but instead will afford the Debtor the opportunity to amend it to 

address the deficiencies raised in this opinion. Among other things, in the 

Complaint, the Debtor must identify the potential defendants with 

particularity, and he must identify the debts at issue. In addition, the Debtor 

must serve the defendants in accordance with the Bankruptcy Rules and 

provide evidence of that service to the Court. The Debtor must also determine 

whether he will be able to satisfy his burden of proof, as set forth in Educ. 

Credit Mgmt. Corp. v. Frushour (In re Frushour), 433 F.3d 393, 400 (4th Cir. 

2005) (citing Brunner v. N.Y. State Higher Educ. Servs. Corp. (In re Brunner), 

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831 F.2d 395, 396 (2d Cir. 1987)),3 considering the constraints of his 

incarceration.4 

The Debtor must take these corrective actions within ninety days from 

the date of this Memorandum Opinion and Order. If the Debtor fails to take 

such action, the Complaint will be dismissed without prejudice to the 

Debtor’s refiling it when he has successfully addressed those deficiencies. 

Accordingly, 

 IT IS ORDERED that the Motion to Reopen is DENIED, and it is 

further 

 ORDERED that the Dischargeability Motion is DENIED, and it is 

further 

 ORDERED that the Appearance Motion is DENIED, and it is further 

 ORDERED that the Debtor must amend the Complaint and address 

the other deficiencies enumerated herein within ninety (90) days of the date 

of this Memorandum Opinion and Order. If the Debtor fails to take such 

3 The Brunner undue hardship test requires the debtor to show that: 

1) the debtor cannot maintain, based on current income and expenses, 

a “minimal” standard of living for herself and her dependents if forced 

to repay the loans; 

2) that additional circumstances exist indicating that this situation is 

likely to persist for a significant portion of the repayment period of the 

student loans; and 

3) that the debtor has made good faith efforts to repay the loans. 

Brunner v. N.Y. State Higher Educ. Servs. Corp. (In re Brunner), 831 F.2d 395, 396 

(2d Cir. 1987). 

4 In the alternative, the Debtor may also dismiss and refile his Complaint later, 

bearing in mind that he must still address the deficiencies enumerated herein, and 

that such a course of action may have consequences as to the filing fee required. 

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action, the Complaint will be dismissed without prejudice to the Debtor’s 

refiling it in the future. 

Signed: March 2, 2022 /s/ Keith L. Phillips 

 United States Bankruptcy Judge 

Copies to: 

Kevin Colin Doherty 

Lunenberg Correctional Center 

690 Falls Rd 

Victoria, VA 23974 

Bruce E. Robinson, trustee 

P.O. Box 538 

South Hill, VA 23970-0538 

Entered on Docket: March 2, 2022

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