United States District Court, W.D. Kentucky, Owensboro Division
JAMES F. DINWIDDIE, JR. EXECUTOR AND BENEFICIARY UNDER THE LAST WILL AND TESTAMENT AND CODICILS OF JAMES F. DINWIDDIE, SR. PLAINTIFF
ANDREW BESHEAR, in his official capacity as Attorney General of the Commonwealth of Kentucky; And HONORABLE GRAYSON COUNTY DISTRICT COURT JUDGE SHAN EMBRY, in her official capacity DEFENDANTS
MEMORANDUM OPINION AND ORDER
H. MCKINLEY, JR., CHIEF JUDGE
matter is before the Court on motions by Defendant, Andrew
Beshear, in his official capacity as Attorney General of the
Commonwealth of Kentucky, to dismiss Plaintiff's
complaint and amended complaint pursuant to Fed.R.Civ.P. 12
[DN 10, DN 13]. Fully briefed, this matter is ripe for
James F. Dinwiddie, Jr., pro se, brings this civil rights
action pursuant to 42 U.S.C. § 1983 against Defendants
in their official capacity alleging violations of his and the
other beneficiaries' right to privacy, due process, and
equal protection under the Fourth, Ninth, and Fourteenth
Amendments to the United States Constitution. Plaintiff's
complaint stems from Kentucky state court proceedings
regarding the Last Will and Testament and Codicils of James
F. Dinwiddie, Sr. (hereinafter “Dinwiddie, Sr.). The
Last Will and Testament and Codicils of Dinwiddie, Sr., were
admitted to probate on February 16, 2012 in the Grayson
District Court. Plaintiff, as executor of Dinwiddie Sr.'s
estate, filed an informal periodic settlement pursuant to KRS
§ 395.605. Defendant, Judge Shan Embry, declined to
approve the informal periodic settlement and ordered the
Plaintiff to file a formal settlement. On February 17, 2014,
Plaintiff filed a second informal periodic settlement in the
Grayson District Court. Once again, the district court
rejected the informal settlement and instructed the parties
to file a formal settlement.
March 19, 2014, Plaintiff filed an action for settlement of
the estate in the Grayson Circuit Court which was dismissed
for lack of subject matter jurisdiction. Plaintiff then
appealed the dismissal which was affirmed by the Kentucky
Court of Appeals, and on February 7, 2018, discretionary
review was denied by the Kentucky Supreme Court.
Dinwiddie v. Arcadu, 2017 WL 1102993 (Ky. Ct. App.
March 24, 2017).
February 23, 2018, Plaintiff filed this pro se complaint
“in his capacity as executor and beneficiary under the
Last Will and Testament and Codicils of James F. Dinwiddie,
Sr.” against Defendant, Attorney General Andrew
Beshear, seeking a declaration that the beneficiaries of the
estate of Dinwiddie, Sr., have a right to file an informal
periodic settlement of the estate and that the Grayson
District Court has the obligation and duty to sign it.
(Complaint, DN 1.) On April 27, 2018, Plaintiff filed a
motion for leave to file an amended complaint adding
Defendant, Grayson County District Judge Shan Embry. The
Magistrate Judge granted the motion.
Andrew Beshear, now moves the Court to dismiss all claims
against him for failure to state a claim upon which relief
can be granted arguing that he was not involved in the
underlying actions or proceedings and cannot order the
Grayson District Court to act in the manner requested.
Further, Beshear argues that he is immune from suit in his
official capacity pursuant to the Eleventh Amendment immunity
and that the Court does not have jurisdiction in this matter
under the Rooker-Feldman doctrine.
initial matter, the Court must address whether Plaintiff may
litigate this action pro se. “Under 28 U.S.C. §
1654, an individual may appear in federal court pro se to
litigate his or her own case, but may not appear pro se if
there are interests at stake other than that
individual's.” Estate of Bessette v. Wilmington
Trust, N.A., 2017 WL 3747204, at *1 (6th Cir. May 16,
2017)(citing Shepherd v. Wellman, 313 F.3d 963, 970
(6th Cir. 2002)). Thus, “a personal representative may
appear pro se on behalf of an estate only if he or she is the
sole beneficiary of the estate and the estate has no
creditors.” Estate of Bessette, 2017 WL
3747204, at *1 (citing Bass v. Leatherwood, 788 F.3d
228, 230 (6th Cir. 2015)). In this case, the amended
complaint reflects that “[t]he decedent died testate
and in his Last Will and Testament and Codicils. . . left his
estate equally to four beneficiaries: Dinwiddie, Jr. (son),
Elizabeth (daughter), Zachary (son), and a testamentary trust
with Dinwiddie, Jr., as trustee.” (Amended Complaint at
¶ 11.) Thus, Plaintiff is not the sole beneficiary of
the estate. Additionally, Plaintiff has not shown that the
estate lacks creditors. Accordingly, Plaintiff may not
prosecute this action on behalf of the estate.
without specifically deciding the issues raised by Beshear in
his motion to dismiss, it would appear to the Court that this
current action would be barred by either the Younger
abstention doctrine if the district court probate proceeding
is still pending or the Rooker-Feldman doctrine if the
probate decision is somehow final. See Younger v.
Harris, 401 U.S. 37 (1971); District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923)). See also Stone
v. Child Protective Servs., 2016 WL 4821371, *5 (W.D.
Ky. Sept. 9, 2016).
reasons set forth above, IT IS HEREBY ORDERED that no later
than July 18, 2018, Plaintiff shall retain counsel and have
counsel enter an appearance in this case on his behalf
Failure to do so will result in dismissal of the entire
action against all the Defendants
FURTHER ORDERED that no later than August 10, 2018, counsel
for Plaintiff shall file a response to the motions to dismiss
filed by Defendant, Andrew Beshear [DN 10, DN ...