Milton II EL v. Corrie et al

Filing 111

AMENDED ORDER GRANTING DEFENDANTS' MOTION TO DISMISS re 32 MOTION to Dismiss for Lack of Jurisdiction 1 Complaint, MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM filed by Ron Cacciatore, Broward count y Property Appraiser's Office, Lori Parish, 75 MOTION to Dismiss 1 Complaint, MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM filed by Miles Prince, 16 Defendant's MOTION TO DISMISS 1 Comp laint, FOR FAILURE TO STATE A CLAIM filed by The County of Broward, 62 MOTION to Dismiss for Lack of Jurisdiction 1 Complaint, and Incorporated Memorandum of Law filed by Oksana Tatarinov, Krill Tatarinov, 66 MOTION t o Dismiss for Lack of Jurisdiction 1 Complaint, MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM filed by Kollar Florida LLC, 79 MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM filed by Sidney Corrie, Jr., Alan Ross, 23 MOTION to Quash MOTION for Extension of Time to File Response/Reply/Answer filed by Oksana Tatarinov, Krill Tatarinov Signed by Judge Robert N. Scola, Jr on 5/17/2017. (ail)

United States District Court
for the
Southern District of Florida
Tommie Lee Milton II EL, Plaintiff,
v.
Sidney Corrie, Jr., and others,
Defendants.

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Civil Action No. 16-62590-Civ-Scola
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Amended Order Granting Defendants’ Motions to Dismiss
Tommie Lee Milton II El, formerly known as Tommie Lee Milton II©®™,
proceeding pro se, filed this suit seeking injunctive relief as well as
compensatory and punitive damages. This matter is before the Court on the
Defendants’ Motions to Dismiss (ECF Nos. 16, 23, 32, 62, 66, 75, 79) and the
Plaintiff’s Amended Motion for Summary Judgment (ECF No. 50). For the
reasons set forth in this Order, the Court grants the motions to dismiss and
denies as moot the motion for summary judgment.
1. Background
The Complaint alleges that, on January 24, 2013, the Plaintiff
“conducted an adverse possession” of a multi-million dollar property in Fort
Lauderdale, FL by filing a form titled “Return of Real Property in Attempt to
Establish Adverse Possession Without Color of Title” with the Florida
Department of Revenue. (Compl. at 2, ECF No. 1.) On January 25, 2013, the
Plaintiff went to inspect “his potential property,” but Defendant Miles Prince
would not let him enter, called the Fort Lauderdale Police Department, and
instructed Defendant Ross to break the locks that the Plaintiff had installed on
the front door. (Id.) The Plaintiff alleges that Defendant Prince had filed a “No
Trespassing Affidavit” against the Plaintiff, and that the Plaintiff was
subsequently arrested for burglary. (Id. at 2-3.) Two employees of the Broward
County Property Appraiser’s office were allegedly interviewed on local television
about the matter, and the Plaintiff claims that they defamed him and made
false accusations against him. (Id. at 3.) The Plaintiff alleges that he was later
arrested a second time on a “fraudulent charge” in retaliation for his adverse
possession of the Fort Lauderdale property. (Id. at 4.) The Plaintiff alleges that
the title to the Fort Lauderdale property was later conveyed in violation of the
Plaintiff’s due process and equal protection rights. (Id.)
The Complaint states that “[t]he plaintiff relies on Attachment A for his
Statements of the Case and Facts. All of the factual allegations the plaintiff

complained of are true and correct at law due to the defendant’s non-response
to the plaintiff’s private, foreign, administrative judgment.” (Id. at 7.)
Attachment A is a document labeled “Affidavit in the Nature of Notice of Intent
to Sue,” signed by the Plaintiff. (Id. at 11-19). The affidavit sets forth many of
the allegations included in the Complaint, and states that “the affiant gives the
defendants 30 days to rebut this foregoing affidavit. . .Failure to respond
and/or properly respond to each point of this affidavit within 30 days will
result in agreement with all of the facts alleged herein and will result in default
in favor of the affiant.” (Id. at 16.) According to the Certificate of Service
attached to the affidavit, the affidavit was served on the Defendants in this
matter. (Id. at 19.) The Plaintiff subsequently sent the Defendants a “Notice of
Default” and a “Final Notice of Default and Estoppel” because they failed to
respond to the affidavit. (ECF No. 1-2).
The Complaint lists a number of purported causes of action, including
civil theft, defamation, unfair and deceptive business trade practices, false
accusations, emotional distress, retaliation, racial discrimination, false
imprisonment, lost wages, and pain and suffering. (Compl. at 1, ECF No. 1.)
The Complaint asserts that this Court has diversity jurisdiction because the
Plaintiff is a Washitaw Moor and is therefore a “Private Citizen,” not a citizen of
the state of Florida. (Id. at 2.) Under the heading “Federal Question Jurisdiction
and Brief Summary of the Case and Facts,” the Complaint makes various
allegations, including that the Defendants violated the Plaintiff’s constitutional
rights under the 5th, 8th, 13th, and 14th Amendments. (Id. at 2-6.)
The Defendants have moved to dismiss the Complaint for lack of subject
matter jurisdiction and failure to state a claim upon which relief can be
granted. (See, e.g., Mot. to Dismiss, ECF No. 32.)
2. Legal Standard
A district court must have at least one of three types of subject-matter
jurisdiction: (1) jurisdiction pursuant to a specific statutory grant; (2) federal
question jurisdiction; or (3) diversity jurisdiction. Butler v. Morgan, 562 Fed.
App’x. 832, 834 (11th Cir. 2014) (citations omitted). “The burden for
establishing federal subject matter jurisdiction rests with the party bringing the
claim.” Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th
Cir. 2005). Diversity jurisdiction exists where the matter in controversy exceeds
$75,000 and the action is between:
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state,
except that the district courts shall not have original
jurisdiction under this subsection of an action between citizens
of a State and citizens or subjects of a foreign State who are

lawfully admitted for permanent residence in the United States
and are domiciled in the same State;
(3) citizens of different States and in which citizens or subjects of a
foreign state are additional parties; and
(4) a foreign state. . .as plaintiff and citizens of a State or of
different States.
12 U.S.C. § 1332(a).
3. Analysis
The Defendants assert that this Court lacks subject-matter jurisdiction
because the parties are not diverse and the Plaintiff has not sufficiently alleged
that federal question jurisdiction exists. (See. e.g., Mot. to Dismiss at 4-8, ECF
No. 32.) The Complaint does not allege that the Court has jurisdiction
pursuant to a specific statutory grant. Therefore, the Court must have either
diversity jurisdiction or federal question jurisdiction.
A. Diversity Jurisdiction
The Complaint alleges that diversity jurisdiction exists because the
Defendants are citizens of Florida and the Plaintiff is a Washitaw Moor and
therefore not a citizen of Florida. (Compl. at 2, ECF No. 1.) Courts have noted
that the Washitaw Nation is not recognized by the United States government,
and have held that alleged membership in the group is not sufficient to
establish diversity jurisdiction. See, e.g., Allah El v. Avesta Homes, LLC, 520
Fed. App’x. 806, 809 (11th Cir. 2013) (holding that plaintiffs claiming status as
“Moorish Nationals and people of Washitaw Indian descent” had not adequately
pleaded diversity jurisdiction because there were no facts establishing that they
were citizens of a different nation or resided in a state other than Florida);
Sanders-Bey v. U.S., 267 Fed. App’x. 464, 466 (7th Cir. 2008) (noting that the
“Washitaw Nation of Muurs” is not recognized by the United States
government, and alleged membership in the group is not sufficient to establish
diversity jurisdiction). Thus, the Plaintiff’s allegation that he is a Washitaw
Moor is insufficient to establish that he is a citizen of a foreign state.
The Plaintiff has also not established that he is a citizen of a state other
than Florida. For purposes of diversity jurisdiction, “citizenship is equivalent to
domicile.” McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002). The
Complaint specifically alleges that “[t]he plaintiff and most of the defendants
are currently domiciled in Broward County, Florida.” (Compl. at 2, ECF No. 2.)
Therefore, since the Washitaw Moors are not a recognized foreign state
and the Plaintiff has alleged that he is domiciled in Florida, diversity
jurisdiction does not exist.

B. Federal Question Jurisdiction
Pursuant to 28 U.S.C. § 1331, “[t]he district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States.” The Plaintiff alleges that the Defendants violated his
rights under the 5th, 8th, 13th, and 14th Amendments of the Constitution.
(Compl. at 3-5, ECF No. 1.) However, the Defendants assert that the Plaintiff
does not have a cause of action directly under the United States Constitution
and must instead bring his claims under 42 U.S.C. § 1983. (See, e.g., Mot. to
Dismiss at 6-8, ECF No. 32.) The Plaintiff’s Amended Motion for Summary
Judgment requests that the Court construe the Complaint as an action under
42 U.S.C. § 1983 due to the Plaintiff’s pro se status. (Mot. for Summary
Judgment at 2, ECF No. 50.) However, regardless of whether the Plaintiff has a
direct cause of action under the Constitution or the Court construes the
Complaint as an action under 42 U.S.C. § 1983, dismissal is warranted.
A court may dismiss a federal question claim “for lack of subject-matter
jurisdiction if (1) the alleged claim under the Constitution or federal statutes
clearly appears to be immaterial and made solely for the purpose of obtaining
jurisdiction, or (2) such a claim is wholly insubstantial and frivolous.” Butler v.
Morgan, 562 Fed. App’x. 832, 834 (11th Cir. 2014) (per curiam) (citing Blue
Cross & Blue Shield of Ala. V. Sanders, 138 F.3d 1347, 1352 (11th Cir. 1998));
see also Bell v. Hood, 327 U.S. 678, 682-83 (1946) (noting that although
typically a court must assume jurisdiction in order to determine whether a
complaint states a cause of action, “a suit may sometimes be dismissed for
want of jurisdiction where the alleged claim under the Constitution or federal
statutes clearly appears to be immaterial. . . or where such a claim is wholly
insubstantial and frivolous.”); McGinnis v. Ingram Equipment Co., Inc., 918 F.2d
1491, 1494 (11th Cir. 1990) (citations omitted) (“[t]he test of federal jurisdiction
is not whether the cause of action is one on which the claimant may recover.
Rather, the test is whether ‘the cause of action alleged is so patently without
merit as to justify. . . the court’s dismissal for want of jurisdiction.’”) A claim is
wholly insubstantial and frivolous if it has no plausible foundation. Butler, 562
Fed. App’x. at 834. A court may dismiss a complaint for lack of subject-matter
jurisdiction based on the allegations in the complaint as well as undisputed
facts evidenced in the record. Id. (citing Williamson v. Tucker, 645 F.2d 404,
413 (5th Cir. 1981)).
The alleged violations of the Plaintiff’s constitutional rights have no
plausible foundation, and are insubstantial and frivolous. The Plaintiff’s
references to the alleged constitutional violations are made in shotgun fashion
and contain little factual support. (See Compl. at 3-5, ECF No. 1.) The alleged
constitutional violations all appear to relate to the Plaintiff’s adverse possession
of the Fort Lauderdale property. Florida law provides that a claim of adverse

possession is established if the possessor has been in actual continued
possession of the property for 7 years and, among other things: (1) paid all
outstanding taxes within one year after entering into possession of the
property, (2) filed a return of the property within 30 days of paying the
outstanding taxes, and (3) subsequently paid all taxes for all remaining years.
Fla. Stat. § 95.18(1) (2013).
In support of his allegation that he adversely possessed the Fort
Lauderdale property, the Plaintiff attached a “Return of Real Property In
Attempt to Establish Adverse Possession Without Color of Title,” dated January
25, 2013, that he filled out and submitted to the Florida Department of
Revenue for the Fort Lauderdale Property. (Compl. at 21, ECF No. 1.) However,
the form itself states that “This return does not create any interest enforceable
by law in the described property.” (Id.) The Plaintiff alleges that when he tried
to enter his “potential property” on January 25, 2013, Defendant Prince
blocked the entrance and had obtained a “No Trespassing Affidavit.” (Id. at 2.)
Indeed, the affidavit that the Plaintiff attached to the Complaint acknowledges
that Defendant Sidney Corrie, Jr. owned the Fort Lauderdale property. (Id. at
12.) Furthermore, Defendant Kollar Florida LLC submitted tax records that
show that on March 27, 2013, Catalina Tax Co LLC paid outstanding taxes on
the property for 2010. (Def. Kollar Florida LLC’s Mot. to Dismiss at Ex. D, ECF
No. 66.)
Therefore, the facts alleged in the Complaint, the documents attached to
the Complaint, and the tax records submitted by Defendant Kollar Florida LLC
establish that the Plaintiff did not have an ownership interest in the Fort
Lauderdale property. Since the alleged violations of the Plaintiff’s equal
protection and due process rights all relate to the Plaintiff’s purported property
interest in the Fort Lauderdale property, the alleged violations have no
plausible basis and are insubstantial and frivolous.
Although
the
Complaint
references
the
Plaintiff’s
“wrongful
imprisonment” and alleges violations of his 8th and 13th Amendment rights,
these claims are also frivolous and insubstantial. First, there is no allegation
that the Defendants forced the Plaintiff into slavery or involuntary servitude.
Second, the affidavit that the Plaintiff attached to the Complaint states that he
was arrested on January 25, 2013 for failure to pay child support. (Compl. at
12, ECF No. 1.) The affidavit asserts that he was arrested a second time, on
March 26, 2013, for failure to pay child support and for burglary of an
occupied dwelling. (Id. at 13.) Thus, the alleged violations of the Plaintiff’s 8th
Amendment rights are apparently unrelated to the allegations in the Complaint
concerning the Defendants’ conduct.
For the reasons set forth above, the alleged violations of the Plaintiff’s
constitutional rights are frivolous and insubstantial, and therefore the Court

dismisses the Plaintiff’s claims for lack of subject-matter jurisdiction. The
factual allegations concerning the violations of the Plaintiff’s constitutional
rights are so bereft of substance that any attempt at amendment would be
futile.
4. Conclusion
Accordingly, the Court grants the Defendants’ Motions to Dismiss (ECF
Nos. 16, 23, 32, 62, 66, 75, 79) and dismisses the Complaint. The Court
denies as moot the Plaintiff’s Amended Motion for Summary Judgment (ECF
No. 50). The Court directs the Clerk to close this case. Any pending motions
are denied as moot.
Done and ordered in chambers, at Miami, Florida, on May 17, 2017
nunc pro tunc to April 12, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge
Copy to:
Tommie Lee Milton II El
18331 Pines Boulevard #240
Pembroke Pines, FL 33029