United States District Court, E.D. North Carolina, Western Division
C. DEVER III UNITED STATES DISTRICT JUDGE.
4, 2019, Tyrone Peele ("Peele" or
"plaintiff''), a Pennsylvania state inmate
proceeding pro se, moved to proceed in forma pauperis [D.E.
1] and attached a proposed complaint [D.E. 1-1], exhibits
[D.E. 1-2], and other filings, including a motion for
appointment of counsel [D.E. 1-4]. On October 8, 2019, Peele
moved for entry of default [D.E. 2]. As explained below, the
court permits Peele to proceed in forma pauperis, but
dismisses the action for lack of subject-matter jurisdiction
and denies his motions to proceed in forma pauperis, for
appointment of counsel, and for entry of default.
litigant seeks leave to proceed in forma pauperis, the court
shall dismiss the case if the court determines that the
action is frivolous, malicious, or fails to state a claim
upon which relief can be granted. 28 U.S.C. § 1915
(e)(2). A frivolous case "lacks an arguable basis either
in law or in fact '' Neitzke v. Williams 490
U.S. 319, 325 (1989). "Legally frivolous claims are
based on an indisputably meritless legal theory and include
claims of infringement of a legal interest which clearly does
not exist" Adams v. Rice, 40 F.3d 72, 75 (4th
Cir. 1994) (quotations omitted).
standard used to evaluate the sufficiency of a pleading is
flexible, "and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation
omitted). Erickson, however, does not "undermine [the]
requirement that a pleading contain 'more than labels and
conclusions.'" Giarratano v. Johnson, 521
F.3d 298, 304 n.5 (4th Cir. 2008) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007): see
Ashcroft v. Iqbal, 556 U.S. 662, 677-83 (2009);
Coleman v. Md. Court of Appeals, 626 F.3d 187, 190
(4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Nemet
Chevrolet Ltd. v. Consumeraffairs.com. Inc., 591 F.3d
250, 255-56 (4th Cir. 2009); Francis v. Giacomelli,
588 F.3d 186, 193 (4th Cir. 2009). Additionally, the court
has "an independent obligation to determine whether
subject-matter jurisdiction exists." Arbaugh v. Y
& H Corp., 546 U.S. 500, 514 (2006).
cites a non-existent federal statute, "28 U.S.C. §
1854(c)(1)(A)," and sues the "court appointed
administrator" of an estate in probate in Bertie County
Superior Court based on "a breakdown in the process of
the court" which Peele believes violates the Due Process
Clause of the Fourteenth Amendment. Compl. [D.E. 1-1] 1. Peele
contends that he has been "formally and officially
identified as an heir/beneficiary" of the estate, but
the administrator has "failed to properly render an
account to probate court" and has not responded to
Peele's requests for information. Id. at 3-4.
Peele seeks "specific performance" in the form of
"copies of the [e]state . . . Administer Official
Transactions from start date (10/25/2016) to present"
and his share of the estate paid into his prison trust
account, together with compensatory and punitive damages.
Id. at 6-7.
federal court does not presume that it has jurisdiction. See
Pinklcy, Inc. v. City of Frederick, 191 F.3d 394,
399 (4th Cir. 1999); see also Anderson v. XYZ Corr.
Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005).
Moreover, "[i]t is not sufficient to obtain
jurisdiction... to merely assert a constitutional
violation." Davis v. Pak, 856 F.2d 648, 650
(4th Cir. 1988) (citation omitted). If the complaint does not
contain "an affirmative pleading of a jurisdictional
basis[, ] a federal court may find that it has jurisdiction
if the facts supporting jurisdiction have been clearly
pleaded." Pinkley, Inc., 191 F.3d at 399.
federal court has no jurisdiction to probate a will or
administer an estate, the reason being that the equity
jurisdiction conferred by the Judiciary Act of 1789... did
not extend to probate matters." Markham v.
Allen, 326 U.S. 490, 494 (1946). "Thus, 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 (2006). Peele seeks an order disbursing
funds held in an estate, and the court lacks jurisdiction
over his claims.
Peele's request for appointment of counsel, no right to
counsel exists in civil cases absent "exceptional
circumstances." Whisenant v. Yuam, 739 F.2d
160, 163 (4th Cir. 1984), abrogated in part on
other grounds by Mallard v. U.S. Dist.
Court, 490 U.S. 296 (1989); see Cook v. Bounds,
518 F.2d 779, 780 (4th Cir. 1975). The existence of
exceptional circumstances "hinges on [the]
characteristics of the claim and the litigant"
Whisenant, 739 F.2d at 163. The facts of this case
and Posner's abilities do not present exceptional
circumstances. Accordingly, the court denies Peele's
request for appointed counsel.
Peele's motion for entry of default, the motion is
premature. An entry of default shall be made when "a
party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend."
Fed.R.Civ.P. 55(a). A defendant is not required to answer
until after the defendant has been served with the summons
and complaint. See Fed.R.Civ.P. 12(a). Because defendant has
not been served with the summons and complaint, no answer is
due. Therefore, the court denies the motion.
the court DISMISSES this action for lack of jurisdiction and
DENIES plaintiffs motions to proceed in forma pauperis [D.E.
1], for appointment of counsel [D.E. 1-4], and entry of
default [D.E. 2]. The clerk shall close the case.
 Peele is likely referring to 29 U.S.C.