McNeil et al v. Bristol County Probate and Family Court Division et al
Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. Copy mailed next business day.(Pezzarossi, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHELLE LYNN MCNEIL, ESTATE OF
MICHAEL H. MCNEIL, SLADE E.W. FERRIS,
SHAYLALEE FERRIS, LEIANNA MEIDE,
and MIKAYLA FERRIS,
BRISTOL COUNTY PROBATE AND FAMILY
COURT DIVISION, GINA L. DEROSSI, BARBARA )
PACHECO, MELINDA J.E. SHEPPARD, JAN
DABROWSKI, and JUDGE KATHERINE FIELD,
Civil Action No.
MEMORANDUM AND ORDER
Plaintiff Michelle Lynn McNeil, proceeding pro se, filed a 30-page complaint,
purportedly on behalf of herself and others, arising out of her unsuccessful attempt to become
appointed the personal representative of her father’s estate in an on-going probate matter before
the Bristol County Probate Court. Along with her complaint, plaintiff filed a motion to proceed
in forma pauperis. On October 3, 2016, the Court issued a memorandum and order allowing her
motion to proceed in forma pauperis and ordering her to show cause why the complaint should
not be dismissed.
On October 26, 2016, plaintiff filed a 59-page response to the show-cause order. On
November 10, 2016, the Court ordered the plaintiff to file an amended complaint. On November
28, 2016, plaintiff filed a response and 30-page amended complaint. The amended complaint
identifies Michelle Lynn McNeil and the Estate of Michael H. McNeil as plaintiffs in the
caption. In addition, Slade E. W. Ferris, Shaylalee Ferris, Leianna Meide, and Mikayla Ferris
have signed the amended complaint as plaintiffs.1
The amended complaint asserts ten counts against the Bristol County Probate and Family
Court Division, a Probate Court Judge, her staff and court personnel, and a court-appointed
personal representative. Specifically, it alleges claims under 42 U.S.C. § 1983 (Count 1); under
the Americans with Disabilities Act and/or the Rehabilitation Act (Count 2); for “Conscious Pain
and Suffering” (Count 3); for negligence (Count 4); under 21 U.S.C. §846 [sic] and 18 U.S.C.
§1962(d) for conspiracy (Count 5); under 18 U.S.C. §73 [sic] for obstruction of justice (Count
6); for mail fraud/theft of mail under 18 U.S.C. 1708 (Count 7); theft under 18 U.S.C. §1506
(Count 8); punitive/exemplary damages (Count 9); and respondeat superior 42 U.S.C. §1983
No matter how those claims are cast, plaintiffs are in essence contesting the results of the
administration of an estate and the decisions made by the state Probate Court. The probate of the
estate is, apparently, an ongoing proceeding. Plaintiffs contend that they are being denied their
constitutional rights based on how those proceedings are taking place. They further contend that
Michele McNeil is being subjected to discrimination under the Americans with Disabilities Act
and Rehabilitation Act by not being accommodated in the ongoing probate proceedings.
The Estate of Michael H. McNeil will be dismissed without prejudice from the action. As explained in
the Court’s October 3, 2016 memorandum and order, the estate cannot proceed pro se and no attorney has appeared
on behalf of the estate. Furthermore, any minor children cannot proceed pro se.
The Court has renumbered and identified the counts of the amended complaint to correct plaintiff’s
numbering errors and avoid confusion when referring to the counts.
For the reasons stated below, all claims asserted in the amended complaint will be
Plaintiff’s Complaint Is Subject to Screening
Because the plaintiff is proceeding in forma pauperis, the amended complaint is subject
to screening. See 28 U.S.C. §1915(e). Under that statute, the court must dismiss an action if it is
malicious or frivolous, fails to state a claim upon which relief can be granted, or seeks monetary
relief against a defendant who is immune from such relief. See 28 U.S.C. §1915(e)(2)(B). The
Court must liberally construe the complaint because plaintiff is proceeding pro se. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972).
Count 5 (Conspiracy)
Count 5 purports to allege a conspiracy count pursuant to 21 U.S.C. § 846 and a
conspiracy under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d).
To the extent plaintiffs assert a claim under 28 U.S.C. § 846, the complaint fails to state a claim,
as that is a criminal statute relating to drug offenses with no private right of action. To the extent
it purports to allege a RICO conspiracy, it fares no better. “RICO . . . is a statute that Congress
enacted as a tool in the federal government’s ‘war against organized crime,’ . . . to help combat
enduring criminal conduct.” Home Orthopedics Corp. v. Rodriguez, 781 F.3d 521, 527 (1st Cir.
2015) (internal citation omitted). Civil plaintiffs are entitled to damages if they can prove they
were “injured in their business or property.” Id. “To state a civil RICO claim . . . a plaintiff
must allege: (1) conduct, (2) of an enterprise, (3) through a pattern of racketeering activity . . . .”
Id. at 528 (citations and punctuation omitted).
Here, the RICO claim is not properly pleaded under Rule 8(a). However, even reading
the complaint as a whole, the allegations fail to allege a cause of action under RICO. For
example, as to the only non-immune defendant, Jan Dabrowski, the complaint does not begin to
describe any acts or omissions that could plausibly be construed as “conduct” amounting to a
“pattern of racketeering activity.” Accordingly, Count 5 will be dismissed for failure to state a
claim upon which relief can be granted.
Counts 6 (Obstruction of Justice), Count 7 (Mail Fraud and Theft of Mail),
and Count 8 (Theft)
Plaintiff’s claims in Count 6 (Obstruction of Justice), Count 7 (Mail Fraud and Theft of
Mail), and Count 8 (Theft) purport to allege civil claims based on criminal statutes. “’[A] private
citizen has no authority to initiate a federal criminal prosecution,’ nor to seek other relief based
on alleged violations of federal criminal statutes.” Diaz v. Perez, No. CV 16-11860-RGS, 2016
WL 6871233, at *5 (D. Mass. Nov. 21, 2016) (citing Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.
1989)). “In the context of claims based on federal statutes, the fact that a federal statute has been
violated . . . does not automatically give rise to a private cause of action.” Nasuti v. U.S. Sec'y of
State John Forbes Kerry, 137 F. Supp. 3d 132, 139 (D. Mass. 2016) (quoting Cannon v. Univ. of
Chicago, 441 U.S. 677, 688 (1979) (quotations omitted)). Rather, “[p]rivate rights of action to
enforce federal law must be created by Congress.” Id. (citing Alexander v. Sandoval, 532 U.S.
275, 286 (2001)). To demonstrate a private right of action, the plaintiff “must show that a statute
creates either an explicit private right of action or an implied private right of action.” Id.
Here, no explicit private right of action exists, and no private right of action can be
reasonably inferred, under any of the identified criminal statutes. Accordingly, Counts 6, 7, and
8 will be dismissed for failure to state a claim upon which relief can be granted.
Count 3 (Conscious Pain and Suffering) and Count 9 (Punitive/Exemplary
Counts 3 and 9 appear to describe alleged damages, rather than identifying causes of
action. Accordingly, Counts 3 (Conscious Pain and Suffering) and Count 9 (Punitive/Exemplary
Damages) will be dismissed for failure to state a claim upon which relief can be granted.
Judge Katherine Field, Probate Register Gina L. DeRossi, Barbara Pacheco,
and Melinda J.E. Sheppard Are Immune from Suit
All claims against Judge Katherine A. Field are barred by the doctrine of absolute judicial
immunity. Becks v. Plymouth County Superior Court, 511 F. Supp. 2d 203, 206 (D. Mass. 2007)
(“Absolute immunity from civil liability applies to any judicial officer for any normal and
routine judicial act.”). “Absolute immunity applies to ‘judges performing judicial acts within
their jurisdiction,’ and the protection it affords applies even if the official ‘acted maliciously and
corruptly in exercising his judicial . . . functions’ or ‘in the presence of grave procedural errors.’”
Ives v. Agastoni, No. CV 15-30153-MAP, 2015 WL 9647559, at *3 (D. Mass. Dec. 14, 2015)
(quoting Goldstein v. Galvin, 719 F.3d 16, 24 (1st Cir.2013)), report and recommendation
adopted, No. 15-CV-30153-MAP, 2016 WL 79881 (D. Mass. Jan. 5, 2016). All of plaintiff’s
allegations concerning Judge Field arise out of judicial actions in the ongoing probate
proceedings. Accordingly, all claims against defendant Judge Field will be dismissed for failure
to state a claim upon which relief can be granted.
The “doctrine of quasi-absolute judicial immunity extends to employees of a court when
they perform tasks that are an integral part of the judicial process.” Andre v. Moriarty, No. CIV.
11-40009-FDS, 2011 WL 1456773, at *7 (D. Mass. Apr. 4, 2011); see Bowen v. Worcester
Family & Prob. Court, No. CIV.A. 14-40113-TSH, 2014 WL 5106419, at *1 (D. Mass. Oct. 9,
2014) (dismissing action sua sponte and holding that quasi-absolute judicial immunity attached
to probate and family court register and other court personnel acting in furtherance of their
official duties). Here, plaintiff contends that the register of probate and various other staff have
failed to properly undertake their official duties of probating plaintiff’s father’s estate. As
pleaded, all claims against defendants Gina L. DeRossi, Barbara Pacheco, and Melinda J.E.
Sheppard allegedly arise out of the performance of their duties in ongoing probate court
proceedings. Accordingly, all claims against those three employees will be dismissed for failure
to state a claim upon which relief can be granted.
Claims against Bristol County Probate and Family Court Division and Jan
Bristol County Probate and Family Court Division.
The Bristol County Probate and Family Court Division, as an arm of the state, is immune
from suit for monetary damages under 42 U.S.C. §1983 in federal court under the Eleventh
Amendment to the United States Constitution. Dicenzo v. Prob., No. 15-CV-30171-MAP, 2015
WL 9690895, at *3 (D. Mass. Nov. 19, 2015) (dismissing claim against Massachusetts Probate
Court under Eleventh Amendment sovereign immunity), report and recommendation adopted
sub nom. Dicenzo v. Massachusetts Prob. & Family Court, No. 15-CV-30171-MAP, 2016 WL
128127 (D. Mass. Jan. 12, 2016). Plaintiffs’ claims against the Bristol County Probate Court for
monetary damages are therefore barred.
As to Count 4 (Negligence), “[u]nder the Massachusetts Tort Claims Act, Mass. Gen.
Laws ch. 258, § 2, the Commonwealth has waived sovereign immunity for certain suits, but only
in the Superior Court. Mass. Gen. Laws ch. 258, § 3 . . . [but] . . . [t]he Commonwealth has not
consented to be sued in federal courts.” Adams v. Cousins, No. CIV.A. 06-40117-FDS, 2009
WL 1873584, at *6 (D. Mass. Mar. 31, 2009).
That leaves Count 2 (Violation of the Americans with Disabilities Act and Rehabilitation
Act). Plaintiff contends that she is disabled, and that she was entitled to, and denied, a
reasonable accommodation in violation of Title II of the ADA. Under Title II, public entities,
including state and local governments, are prohibited from discriminating against qualified
individuals with disabilities. 42 U.S.C. § 12132. Of the 162 paragraphs contained in the
complaint, only one makes specific factual allegations concerning plaintiff’s disability.
Paragraph 74 alleges that plaintiff “has speech problems due to past surgeries to remove thyroid
cancer and trans-sphenoidal to remove pituitary tumor. Judge Field interrupted Michelle
numerous times, did not allow Michelle the opportunity to plead her case.” Compl. ¶ 74.
Assuming that plaintiff was a qualified individual with a disability who was entitled to the
protection of the act, the bare allegation that the judge interrupted her is insufficient to state a
claim under the ADA. Furthermore, the complaint does not allege that plaintiff ever requested
an accommodation for her disability. See Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st
Cir. 2001) (finding that a person’s “disability and concomitant need for accommodation are often
not known . . . until the [person] requests an accommodation”). Nor does she allege what
specific accommodation she required. Therefore, the factual allegations in the complaint fail to
state a claim under the ADA upon which relief can be granted.3
Accordingly, all claims against the Bristol County Probate and Family Court Division
will be dismissed for failure to state a claim upon which relief can be granted.
The remaining defendant is Jan Dabrowski, the personal representative of the estate.
There is no cognizable federal claim under 42 U.S.C. § 1983 against a court-appointed personal
representative of an estate, because the representative is not a state actor for purposes of section
1983. See Lipin v. Ellis, No. 07-92-P-S, 2007 WL 2198876, at *12 (D. Me. July 26, 2007), aff'd,
No. CIV. 07-92-P-S, 2007 WL 2701493 (D. Me. Sept. 10, 2007); Witte v. Young, No. 2:14-CV-
Even if the complaint had stated a claim under Title II, it is questionable whether it alleges facts sufficient
to give plaintiff standing to seek the remedy she requests. Plaintiff seeks a permanent injunction requiring the
Bristol County Probate Court to undergo sensitivity training concerning individuals with mental health and medical
disorders. Such prospective relief would not redress any concrete injury plaintiff suffered in the past, nor has she
alleged facts sufficient to suggest that it is necessary to avoid a “real or immediate threat that [she] will be wronged
again.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
2439-TLN-EFB, 2015 WL 5232681, at *4 (E.D. Cal. Sept. 8, 2015) (collecting cases).
Furthermore, the complaint does not allege any plausible factual allegations to support a claim
against Dabrowski under either the Americans with Disability Act or Rehabilitation Act.
The remaining claim against Dabrowski is for negligence. In substance, the complaint
alleges that as personal representative of the estate, Dabrowski breached a duty of care and duty
of loyalty owed to the estate by not following court orders, not giving notice, evading family
members, and not protecting the interests of family members. (See Am. Complt. ¶ 154-55).
Even assuming the existence of such a claim, it arises under state law, not federal law. Under the
circumstances, and with all federal claims having been dismissed, the Court will decline to
exercise supplemental jurisdiction over the claim. See 28 U.S.C. § 1367(c)(3).
For the foregoing reasons,
All claims of plaintiff the Estate of Michael H. McNeil are DISMISSED without
prejudice. Michelle McNeil may not represent the estate and the estate may not
appear pro se pursuant to L.R. 83.5.5.
All claims against defendants Judge Katherine Field, Probate Register Gina L.
DeRossi, Barbara Pacheco, Melinda J.E. Sheppard, and the Bristol County
Probate Court are DISMISSED for failure to state a claim upon which relief can
All claims against defendant Jan Dabrowski except Count 4 (Negligence) are
DISMISSED for failure to state a claim upon which relief can be granted.
All claims against defendant Jan Dabrowski for negligence are DISMISSED
without prejudice, as the Court declines to exercise supplemental jurisdiction over
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: January 20, 2017
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