United States District Court, N.D. Ohio, Western Division
Stanley B. Doremus, Plaintiff
Lucas County Probate Court, Defendant.
MEMORANDUM OPINION AND ORDER
Jeffrey J. Helmick United States District Judge
se Plaintiff Stanley B. Doremus filed this mandamus
action against the Lucas County Probate Court. In the
Complaint, Plaintiff indicates the Lucas County Probate Court
would not accept his attempt to file an estate for William W.
Szymanski. He includes a copy of Szymanski's Last Will
and Testament which Plaintiff contends establishes standing
to bring this action. The Will indicates that Plaintiff is to
be the alternate executor “[i]f Leonard Lee Byers is
unable or unwilling to act” as executor. Plaintiff is
not a beneficiary of the estate. There is no indication in
the Complaint that Szymanski died, or that Byers was unwell
or unable to act as executor to the estate. Nevertheless, it
appears Plaintiff attempted to open an Estate for Szymanski
and request appointment as the executor. The probate court
would not accept his filing because Plaintiff did not pay the
filing fee and because the filing contained errors. He
indicates he offered to allow the probate court to take the
filing fee from the Estate assets at the conclusion of the
estate, but they would not accept that offer. He asks me to
order the probate court to accept his estate filing.
pro se pleadings are liberally construed, Boag
v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam);
Haines v. Kerner, 404 U.S. 519, 520 (1972), I am
required to dismiss an in forma pauperis action
under 28 U.S.C. § 1915(e) if it fails to state a claim
upon which relief can be granted, or if it lacks an arguable
basis in law or fact. Neitzke v. Williams, 490 U.S.
319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th
Cir. 1990); Sistrunk v. City of Strongsville, 99
F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable
basis in law or fact when it is premised on an indisputably
meritless legal theory or when the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. A cause
of action fails to state a claim upon which relief may be
granted when it lacks “plausibility in the
Complaint.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 564 (2007).
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Ashcroft v. Iqbal , 556 U.S. 662,
677-78 (2009). The factual allegations in the pleading must
be sufficient to raise the right to relief above the
speculative level on the assumption that all the allegations
in the Complaint are true. Bell Atl. Corp., 550 U.S.
at 555. The Plaintiff is not required to include detailed
factual allegations, but must provide more than “an
accusation.” Iqbal, 556 U.S. at 678. A
pleading that offers legal conclusions or a simple recitation
of the elements of a cause of action will not meet this
pleading standard. Id. In reviewing a Complaint, I
must construe the pleading in the light most favorable to the
Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151
F.3d 559, 561 (6th Cir. 1998).
initial matter, this Court lacks jurisdiction to order the
Lucas County Probate Court to accept Plaintiff's filing.
Mandamus jurisdiction is conferred to district courts by 28
U.S.C. § 1361 “to compel an officer or employee of
the United States or any agency thereof to perform a duty
owed to the plaintiff.” To obtain relief under §
1361, an individual must establish that he has a clear right
to relief and that a federal employee has a clear,
nondiscretionary duty to act. See Heckler v. Ringer,
466 U.S. 602, 616-17, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984);
In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.
1995); Ryon v. O'Neill, 894 F.2d 199, 205 (6th
Cir. 1990). Here, Plaintiff seeks relief from a state probate
court, not a federal entity. This Court does not have
authority under § 1361 to order a state court to accept
a filing. In addition, Plaintiff does not establish that he
has a clear right to relief or that the Defendant has a
nondiscretionary duty to act. First, Plaintiff is listed in
the Will as the alternate executor, not the executor. Second,
Ohio Revised Code § R.C. 2113.05 vests the probate court
with discretion to determine the suitability of a named
executor. In re Henne's Estate, 66 Ohio St. 2d
232, 235 (1981), even if he were named in the Will as the
executor, the probate court would not be bound to appoint him
to that position.
considered and examined the pro se Plaintiff's
pleadings to determine their legal viability, I conclude I do
not have jurisdiction to grant the requested relief.
Therefore, this action is dismissed pursuant to 28 U.S.C.
§ 1915(e). I certify, pursuant to 28 U.S.C. §