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McNeil v. Bristol County Probate and Family Court Division

United States District Court, D. Massachusetts

January 20, 2017

MICHELLE LYNN MCNEIL, ESTATE OF MICHAEL H. MCNEIL, SLADE E.W. FERRIS, SHAYLALEE FERRIS, LEIANNA MEIDE, and MIKAYLA FERRIS, Plaintiffs,
v.
BRISTOL COUNTY PROBATE AND FAMILY COURT DIVISION, GINA L. DEROSSI, BARBARA PACHECO, MELINDA J.E. SHEPPARD, JAN DABROWSKI, and JUDGE KATHERINE FIELD, Defendants.

          MEMORANDUM AND ORDER

          F. Dennis Saylor IV United States District Judge.

         I. Background

         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 (Count 10).[2]

         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.

         For the reasons stated below, all claims asserted in the amended complaint will be dismissed.

         II. Discussion

         A. 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).

         B. 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.

         C. Counts 6 (Obstruction of Justice), Count 7 (Mail Fraud and ...


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