United States District Court, D. Massachusetts
MICHELLE LYNN MCNEIL, ESTATE OF MICHAEL H. MCNEIL, SLADE E.W. FERRIS, SHAYLALEE FERRIS, LEIANNA MEIDE, and MIKAYLA FERRIS, Plaintiffs,
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
Dennis Saylor IV United States District Judge.
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
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
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).
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
reasons stated below, all claims asserted in the amended
complaint will be dismissed.
Plaintiff's Complaint Is Subject to
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)
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).
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
Counts 6 (Obstruction of Justice), Count 7 (Mail Fraud