McNeil et al v. Bristol County Probate and Family Court Division et al

Filing 5

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER"For the foregoing reasons, plaintiffs motion to proceed in forma pauperis is GRANTED. Plaintiff shall show cause in writing within 21 days why this action should not be dismissed for the reasons stated above. Failure to comply with this order will likely result in dismissal of this action."(PSSA, 5)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________________
)
MICHELLE LYNN MCNEIL,
)
)
Plaintiff,
)
)
v.
)
)
BRISTOL COUNTY PROBATE AND FAMILY )
COURT DIVISION, GINA L. DEROSSI,
)
BARBARA PACHECO, MELINDA J.E.
)
SHEPPARD, JAN DABROWSKI, and
)
JUDGE KATHERINE FIELD,
)
)
Defendants.
)
___________________________________________ )

Civil Action No.
16-11712-FDS

MEMORANDUM AND ORDER
SAYLOR, J.
For the reasons stated below, plaintiff will be ordered to show cause why this action
should not be dismissed within 21 days of the entry of this Memorandum and Order.
I.

Background
Pro se plaintiff Michelle Lynn McNeil has filed a thirty-page, six-count complaint

purportedly on behalf of herself, other heirs, and her father’s estate.1 The complaint arises out of
her unsuccessful attempt to become appointed the personal representative of her father’s estate in

1

The caption of the complaint and the civil cover sheet identify Michelle Lynn McNeil and the Estate of
Michael H. McNeil as plaintiffs. However, the body of the complaint lists several grandchildren and great
grandchildren of the deceased as parties. Only plaintiff Michelle McNeil has signed the complaint. Plaintiff cannot
represent the estate, or any other party, pro se. “Although 28 U.S.C. § 1654 permits persons to proceed pro se, this
provision does not allow unlicensed lay people to represent other pro se litigants.” Cohen v. Attorney Gen. of
Massachusetts, No. CA 11-11500-NMG, 2011 WL 5008088, at *7 (D. Mass. Oct. 18, 2011) (citing Feliciano v.
DuBois, 846 F. Supp. 1033, 1039 (D. Mass. 1994); Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir.
1991)). See also Local Rule 83.5.5; Edelkind v. Fairmont Funding, Ltd., No. C.A. 06-12275-JLT, 2007 WL
5688308, at *5 (D. Mass. Jan. 11, 2007). Accordingly, at this stage, Michelle McNeil is the only valid plaintiff in
this action.

an ongoing probate matter before the Bristol County Probate Court. Rather than appeal the
orders of the Probate Court, plaintiff instead brought an action in this Court seeking monetary
damages and declaratory and injunctive relief. Along with her complaint, plaintiff filed a motion
to proceed in forma pauperis.
II.

Discussion
A.

Plaintiff’s Complaint Is Subject to Screening

Plaintiff’s motion to proceed in forma pauperis will be allowed. As a pro se plaintiff,
however, summonses will not issue unless the Court determines that the complaint states a claim
upon which relief can be granted. See 28 U.S.C. §1915(e). Furthermore, the Court is obligated
to inquire sua sponte into its own subject-matter jurisdiction. See McCulloch v. Velez, 364 F.3d
1, 5 (1st Cir. 2004). “If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). In conducting this review, the
Court must liberally construe the complaint because plaintiff is proceeding pro se. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972).
B.

The Complaint Fails to State a Claim Upon Which Relief Can Be Granted
1.

Bristol County Probate Court Is Immune from Suit

The Bristol County Probate Court, as an arm of the state, is immune from suit 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). Accordingly, plaintiff’s claims
against Bristol County Probate Court are subject to dismissal on the ground of sovereign

2

immunity.
2.

Judge Field Is Absolutely Judicially Immune from Suit

Plaintiff’s 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 the
allegations concerning Judge Field relate to judicial actions in the ongoing probate proceedings.
Accordingly, the claims against defendant Judge Katherine Field are subject to dismissal on the
ground of absolute judicial immunity.
3.

Bristol Register of Probate and Probate Court Employees Are
Entitled to Quasi-Judicial Immunity

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. CV11-40009-FDS, 2011 WL 1456773, at *7 (D. Mass. Apr. 4, 2011); see Bowen v. Worcester
Family & Prob. Court, No. CV-14-40113-TSH, 2014 WL 5106419, at *1 (D. Mass. Oct. 9,
2014) (dismissing action sua sponte, holding that quasi-judicial immunity attached to probate
and family court register and other court personnel acting in furtherance of their judicial duties).
Here, plaintiff claims that the register of probate and various other staff have failed to undertake
their official duties of probating the plaintiff’s father’s estate properly. As pleaded, the
3

complaint is insufficient to overcome a defense of quasi-judicial immunity and subject to
dismissal as to defendants Gina L. DeRossi, Barbara Pacheco, and Melinda J.E. Sheppard where
all of the actions allegedly occurred in the ordinary course of on-going probate court
proceedings.
4.

The Court Is Without Subject Matter Jurisdiction Over Diversity
Claims Against Court-Appointed Representative.

The remaining defendant is Jan Dabrowski, the court-appointed personal representative
of the estate. There is no apparent cognizable claim against Dabrowski under federal law,
because Dabrowski is not a state actor for purposes of a civil rights action under 42 U.S.C.
§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. 2:14CV-2439-TLN-EFB, 2015 WL 5232681, at *4 (E.D. Cal. Sept. 8, 2015) (collecting cases).
Accordingly, the only potential basis of subject-matter jurisdiction against Dabrowski is diversity
jurisdiction. But even assuming diversity jurisdiction is present, “[u]nder the probate exception,
federal courts are deemed to lack jurisdiction to ‘interfere with the probate proceedings or
assume general jurisdiction of the probate or control of the property in the custody of the state
court.’” Dumas v. Snow, No. CIV.A. 10-10187-GAO, 2010 WL 3304207, at *2 (D. Mass. Aug.
23, 2010) (citing Jiménez v. Rodríguez–Pagán, 597 F.3d 18, 23 (1st Cir.2010).
Here, plaintiff is, in essence, complaining about the results of Probate Court proceedings.
She apparently disagrees with the Court’s appointment of the personal representative. Her claim
against the personal representative are for damages and injunctive relief relating to the
appointment and service in an ongoing proceeding relating to the probate property. This Court is
without jurisdiction to interfere with the ongoing probate proceedings pending before the Bristol

4

County Probate Court. Accordingly, that claim is likewise subject to dismissal.2
III.

Conclusion
For the foregoing reasons, plaintiff’s motion to proceed in forma pauperis is GRANTED.

Plaintiff shall show cause in writing within 21 days why this action should not be dismissed for
the reasons stated above. Failure to comply with this order will likely result in dismissal of this
action.
So Ordered.

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
United States District Judge

Dated: October 3, 2016

2

Even if the probate exception did not apply, the Court would likely abstain from exercising jurisdiction
over the claim. See Munroe v. McGee, 478 F. Supp. 2d 110, 117 (D. Mass. 2007) (finding Younger and Colorado
River abstention doctrines grounds for abstaining from suit challenging actions of special administrator of estate in
ongoing probate matter).

5