United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff's Motion to Proceed without
Prepaying Fees and Costs (Doc. 2). On review, it does not
appear that the Court has jurisdiction over Plaintiff's
se Plaintiff, alleged to be a citizen of South Carolina,
brings this action against Defendant, a Florida citizen,
under “42 USC 1983 Civil Action for Deprivation of
Rights, Declaratory Decree was Violated for Failing to Pay
Inheritance from Estate Property Sale in NY for $102,
500.00.” (Doc. 1 at 3). According to the allegations,
Plaintiff was an heir in her late Mother's Florida
estate, “Docket No. 2010-11899-PRDL.” (Doc. 1 at
4). It appears that Defendant was (or is) the administrator
of that estate and Plaintiff alleges that Defendant
“failed to compensate heir” and “heir did
not receive her willed share” of one fourth of the New
York property. (Id.) . Plaintiff asserts that she
and her power of attorney filed several “petitions to
compensate” the remaining balance of $102, 500.00 to
her as heir and Defendant “compensated all other heirs
but the Plaintiff.” (Id.) . She seeks monetary
damages of the unpaid inheritance in this suit.
courts may allow an individual to proceed in forma pauperis
if that person declares in an affidavit that he “is
unable to pay [filing] fees or give security therefor.”
28 U.S.C. § 1915(a)(1). Before a plaintiff is permitted
to proceed in forma pauperis, the court must review the
complaint to determine whether it is frivolous, malicious,
fails to state a claim upon which relief may be granted, or
seeks monetary relief against an immune defendant.
Id . § 1915(e)(2).
(ii) of § 1915(e)(2)(B) authorizes dismissal of an
indigent's case on the same terms as Federal Rule of
Civil Procedure 12(b)(6) authorizes dismissal for cases in
general-when the complaint “fails to state a claim on
which relief may be granted.” Dismissal pursuant to
§ 1915(e)(2)(B)(ii) is governed by the same familiar
standards that govern dismissal under Rule 12(b)(6).
Thorpe v. Little, 804 F.Supp.2d 174, 180 (D. Del.
1915(e)(2)(B)(ii) and Rule 12(b)(6) test the sufficiency of
the plaintiff's complaint. Because Rule 8(a)(2) requires
the plaintiff to “show” that he is entitled to
relief, a mere “blanket assertion of entitlement to
relief” will not do. Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 556 n. 3 (2007). To survive
dismissal under § 1915(e)(2)(B)(ii) and Rule 12(b)(6),
Plaintiff must plead facts which, “accepted as true,
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). A
claim is “plausible on its face” when its factual
content permits a “reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In evaluating a
plaintiff's complaint under this standard, the court must
accept all well pleaded factual allegations as true and
construe them in the light most favorable to the plaintiff.
Id.; Ironworkers Local Union 68 v.
AstraZeneca Pharmaceuticals, LP, 634 F.3d 1352,
1359 (11th Cir. 2011). Legal conclusions devoid of factual
support are not entitled to an assumption of truth.
Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir.
2011) (citing Iqbal, 556 U.S. at 679).
se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per c
uriam). See also Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam). Yet pro se litigants
must still conform their pleadings to the Federal Rules of
Civil Procedure, Albra v. Advan, Inc., 490 F.3d 826,
829 (11th Cir. 2007), and the court will not “serve as
de facto counsel for a party or ... rewrite an otherwise
deficient pleading in order to sustain an action.”
GJR Investments, Inc. v. County of Escambia, Fla.,
132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted),
o verruled on o ther gro unds as recognized in
Randall v. Scott, 610 F.3d 701, 706 (11th Cir.
courts have “an independent obligation” in every
case “to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any
party.” Arbaugh v. Y&H Corp., 546 U.S.
500, 501 (2006) (citing Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 583 (1999)). Parties seeking to
invoke the limited jurisdiction of the federal court over a
cause of action must show that the underlying claim is based
upon either diversity jurisdiction (controversies exceeding
$75, 000 between citizens of different states) or the
existence of a federal question (“a civil action
arising under the Constitution, laws, or treaties of the
United States”), in which a private right of action has
been created or is implied by Congressional intent.
See 28 U.S.C. § 1331 and § 1332;
Alexander v. Sandoval, 532 U.S. 275, 293 n.8 (2001).
Plaintiff's complaint does not meet this standard.
Plaintiff is seeking to prosecute a federal question claim
under 42 U.S.C. § 1983, she has not pled facts to show
that this claim is cognizable here. “To state a claim
for relief in an action brought under § 1983,
respondents must establish that they were deprived of a right
secured by the Constitution or laws of the United States, and
that the alleged deprivation was committed under color of
state law. Like the state-action requirement of the
Fourteenth Amendment, the under-color-of-state-law element of
§ 1983 excludes from its reach merely private conduct,
no matter how discriminatory or wrongful.” Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50
(1999) (internal citations omitted). Plaintiff does not
allege what federal right she was deprived of, nor is there
an allegation that Defendant is a state actor or that the
actions Plaintiff complains of are the actions of the state.
As pled, no federal question is presented nor is one
plausible on the facts alleged.
extent Plaintiff is trying to contest a ruling or final
judgment rendered in the state probate case, the
Rooker-Feldman doctrine provides that the district
courts lack jurisdiction to act as appellate courts and are
precluded from reviewing final state court decisions.
Green v. Jefferson Cnty. Com'n, 563 F.3d 1243,
1249 (11th Cir. 2009); see also Rooker v. Fidelity Trust
Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923);
District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The
doctrine is “confined to cases of the kind from which
the doctrine acquired its name: cases brought by state-court
losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of
those judgments.” Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161
L.Ed.2d 454 (2005).
Plaintiff has adequately alleged diversity of citizenship and
the amount in controversy appears to be met,
“[d]iversity jurisdiction under 28 U.S.C. § 1332
is subject to a judicially created exemption for domestic
relations and probate cases.” Rash v. Rash,
173 F.3d 1376, 1380 (11th Cir. 1999). The probate exception
“reserves to state probate courts the probate or
annulment of a will and the administration of a
decedent's estate; it also precludes federal courts from
endeavoring to dispose of property that is in the custody of
a state probate court.” Marshall v. Marshall,
547 U.S. 293, 311-12, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006)
(noting that the exception “does not bar federal courts
from adjudicating matters outside those confines and
otherwise within federal jurisdiction.”). While not all
matters which may be related in some way to probate
proceedings are barred and this exception is narrowly
construed in this circuit,  valuation of estate assets or an
actual transfer of property under probate are precluded by
the probate exception. Michigan Tech Fund v. Century Nat.
Bank of Broward, 680 F.2d 736, 741 (11th Cir. 1982).
From the allegations pled here, Plaintiff is seeking to
enforce her claim made in the probate proceedings for the
proceeds of the sale of a res that is part of the estate. If
that is, in fact, the case, this litigation falls within this
exception and the Court is without jurisdiction over the
interpretation of the complaint is correct, there is no
viable claim properly before this Court. While the Court
usually allows amendment of a defective complaint, the lack
of subject matter jurisdiction over this dispute is not
susceptible to cure by amendment. I respectfully
RECOMMEND that this case be