Marcus v. Insurance Corporation of Miami-Dade County

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-cv-24414-ALTMAN

MARCUS O. TAITE,

Plaintiff,

v.

INSURANCE CORPORATION OF

MIAMI-DADE COUNTY, et al.,

Defendants.

__________________________________/

ORDER

The Plaintiff, Marcus O. Taite, has filed a pro se “Affidavit Truth Complaint and Summons.”1

Complaint [ECF No. 1] at 1. In that Complaint, Taite alleges that he’s a member of the “Washitaw

Nation” and that he was falsely arrested and convicted by state authorities in Florida and Alabama.

See id. at 2–3. Taite has neither paid the filing fee nor filed a motion to proceed in forma pauperis. See

generally Docket. So, after careful review, we DISMISS his Complaint under the “three-strikes”

provision of 28 U.S.C. § 1915(g).

THE LAW

When a prisoner-plaintiff proceeds IFP, his complaint must be screened under the provisions

1 Taite says that he’s bringing this Complaint under 25 U.S.C. § 177 and several other authorities

related to Indian law. See Complaint at 1. But 25 U.S.C. § 177 only provides “Indian tribes [with] a cause

of action under federal common law to establish its right to land allegedly conveyed in violation of the

Act.” Miccosukee Tribe of Indians of Fla. v. United States, 716 F.3d 535, 548 n.32 (11th Cir. 2013) (emphasis

added). In other words, it doesn’t create a cause of action for an individual (like Taite) to challenge

the allegedly unconstitutional acts of state actors. See, e.g., Baylor v. Day-Petrano, 596 F. App’x 741, 742

(11th Cir. 2014) (rejecting a plaintiff’s attempt to deploy 25 U.S.C. § 177 to challenge an alleged “state-

court action [that] constituted a denial of Day-Petrano’s race-based civil rights”). Since Taite claims

that he was falsely arrested and illegally prosecuted by state officials, we find that Taite is attempting

to advance a civil-rights action under 42 U.S.C. § 1983. See Ortega v. Christian, 85 F.3d 1521, 1525 (11th

Cir. 1996) (“A [false arrest] violates the Fourth Amendment and forms the basis for a section 1983

claim.”).

of 28 U.S.C. § 1915(g)—also known as the “three strikes provision.” White v. Lemma, 947 F.3d 1373,

1379 (11th Cir. 2020) (“[A] court must procedurally dismiss without prejudice the claim of a prisoner

who has struck out under the three-strikes provision and failed to pay the filing fee, [but] the court

may also consider the merits to dismiss the case with prejudice instead.”), abrogated in part on other grounds

by Wells v. Brown, 58 F.4th 1347, 1357 (11th Cir. 2023) (en banc). That provision reads, in pertinent

part, as follows:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action

or proceeding under this section if the prisoner has, on 3 or more prior occasions,

while incarcerated or detained in any facility, brought an action or appeal in a court of

the United States that was dismissed on the grounds that it is frivolous, malicious, or

fails to state a claim upon which relief may be granted, unless the prisoner is under

imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

In other words, “Section 1915 only allows a prisoner to file three meritless suits at the reduced

rate provided by that section.” Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (cleaned up).

Once a prisoner has had three suits dismissed for one (or more) of the reasons set out in § 1915(g),

he “must pay the full filing fee at the time he initiates suit[.]” Ibid. (emphasis in original). If the plaintiff

doesn’t pay the filing fee when he files his lawsuit—and unless he qualifies for the “imminent danger

of serious physical injury” exception—the Court must “dismiss the action without prejudice when it

denies the prisoner leave to proceed in forma pauperis.” Ibid.

ANALYSIS

In his Complaint, Taite argues that, because he’s a member of the Washitaw Nation,2 the states

of Florida and Alabama “[do] not have any sovereign or sovereignty to make no arrest in Washitaw

sovereignty Nation jurisdictions[.]” Complaint at 4 (error in original). We take this to mean that Taite

2 The “Washitaw Nation,” which is “not recognized by the United States government,” is a “fictional”

tribe routinely used by “sovereign citizens” to advance frivolous jurisdictional defenses. Milton v. Corrie,

2017 WL 2214756, at *2 (S.D. Fla. May 18, 2017) (Scola, J.); see also Bybee v. City of Paducah, 46 F. App’x

735, 736 (6th Cir. 2002) (describing the “Nation of Washitaw” as “fictional”).

is immune from arrest and prosecution because of his membership in a fictitious nation. As relief,

Taite asks us to “immediately injunction to be returned to my ancestral Washitaw Nation” and for $50

billion in damages as compensation for being “kidnapped.” Id. at 4-5 (errors in original).

Taite is a serial filer whose lawsuits the federal courts have regularly dismissed as meritless. See

Taite v. Robinson, 2023 WL 4308958, at *1 n.1 (S.D. Ala. May 31, 2023) (Murray, Mag. J.) (calculating

that Taite has filed at least 144 “cases and appeals” in federal court under various aliases). Since Taite

hasn’t paid the filing fee in this case, and because Taite has brought “three or more federal lawsuits or

appeals that were dismissed as frivolous, malicious, or for failure to state a claim,” the Complaint must

be dismissed under § 1915(g)’s three-strikes rule. Daker v. Ward, 999 F.3d 1300, 1310 (11th Cir. 2021);

see also Taite v. Ruiz, 2023 WL 3790750, at *1–2 (S.D. Fla. June 2, 2023) (Bloom, J.) (citing Taite v.

Walker, 2014 WL 7411800, at *1–2 (S.D. Ala. Dec. 31, 2014) (Granade, J.)) (“Plaintiff qualifies as a

‘three-striker’ based on his lengthy history of meritless, frivolous, and/or malicious lawsuits.”).

Taite could avoid the three-strikes label by alleging that he “is under imminent danger of serious

physical injury.” 28 U.S.C. § 1915(g). To do this, however, he would have to show “that he was in

imminent danger of serious physical injury at the time he filed his Complaint or that he was in jeopardy

of any ongoing danger.” Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). But Taite never even

tries to qualify for this exception. See generally Complaint. And that silence is enough for us to conclude

that the imminent-danger exception doesn’t save his claim. See Abdullah v. Migoya, 955 F. Supp. 2d

1300, 1307 (S.D. Fla. 2013) (Zloch, J.) (“A plaintiff must provide the court with specific allegations of

present imminent danger indicating that a serious physical injury will result if his claims are not

addressed.”). Because the “imminent danger” exception doesn’t apply here, Taite is subject to the

three-strikes rule—and, since he’s failed to pay the filing fee, his Complaint must be dismissed. See

White, 947 F.3d at 1377 (“We have construed this language to mean that a district court must dismiss

a prisoner’s claims when the prisoner has three strikes but failed to pay the filing fee when the suit

began.”); Dupree, 284 F.3d at 1236 (“Section 1915 only allows a prisoner to file three meritless suits at

the reduced rate provided by that section. After the third meritless suit, the prisoner must pay the full

filing fee at the time he initiates suit.” (cleaned up)).

Three final points. One, insofar as Taite argues that his state-court conviction is illegal, he must

bring that claim in a petition for writ of habeas corpus under 28 U.S.C. § 2254. See Hutcherson v. Riley,

468 F.3d 750, 754 (11th Cir. 2006) (“However, when an inmate raises any challenge to the lawfulness

of confinement or the particulars affecting its duration, his claim falls solely within the province of

habeas corpus under § 2254.” (cleaned up)). Note, however, that Taite cannot file that petition in this

District because he’s being held pursuant to an Alabama criminal judgment. See Byrd v. Martin, 754

F.2d 963, 965 (11th Cir. 1985) (“The most convenient forum [for a habeas petition] will often be the

district in the state whose conviction is being attacked[.]”). So, to the extent that any part of the

Complaint can be reconstrued as a habeas petition, we dismiss it because it hasn’t been filed in the

proper venue. See Thompson v. Warden, 2021 WL 4165335, at *2 (11th Cir. Sept. 14, 2021) (“Because

Thompson brought the case in a court other than his sentencing court, venue was not proper.

Accordingly, we affirm the district court’s dismissal of his habeas petition for lack of jurisdiction.”).

Two, we dismiss Taite’s Complaint with prejudice because it’s frivolous. Normally, a § 1915(g)

dismissal is without prejudice. But we have the authority to dismiss a complaint with prejudice under §

1915(g) when it is patently frivolous. See White, 947 F.3d at 1379 (“So though a court must procedurally

dismiss without prejudice the claim of a prisoner who has struck out under the three-strikes provision

and failed to pay the filing fee, the court may also consider the merits to dismiss the case with prejudice

instead.”). A complaint “is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989). Since Taite’s Complaint is premised on the absurd theory that—

as a member of the fictional “Washitaw Nation”—he’s a separate sovereign and immune from suit in

state court, his claim is irredeemably frivolous. See United States v. Sterling, 738 F.3d 228, 233 n.1 (11th

Cir. 2013) (“The phrases Sterling repeated are often used by so-called ‘sovereign citizens,’ who believe

they are not subject to the jurisdiction of the courts . . . . Courts have been confronted repeatedly by

their attempts to delay judicial proceedings and have summarily rejected their legal theories as

frivolous.”). Notably, the Eleventh Circuit has consistently affirmed the with-prejudice dismissal of

frivolous § 1983 complaints. See, e.g., Broner v. Wash. Mut. Bank, F.A., 258 F. App’x 254, 256–57 (11th

Cir. 2007) (“[T]he district court did not abuse its discretion in finding her complaint frivolous and did

not err in finding that it failed to state a claim. Accordingly, her complaint was properly dismissed

with prejudice, pursuant to § 1915(e)(2).”); Nails v. Franklin, 279 F. App’x 899, 901 (11th Cir. 2008)

(“We agree that Plaintiff’s suit is frivolous and should be dismissed with prejudice.”).

Three, Taite has flooded this Court (and our sister courts in Alabama) with over one-hundred

frivolous lawsuits. See Robinson, 2023 WL 4308958, at *1 n.1. At some point, enough is enough. Since

“[f]ederal courts have both the inherent power and the constitutional obligation to protect their

jurisdiction from conduct which impairs their ability to carry out Article III functions,” we have the

power to “restrict access to vexatious and abusive litigants” who inundate the courts with meritless

filings. Brewer v. United States, 614 F. App’x 426, 427 (11th Cir. 2015) (citing Miller v. Donald, 541 F.3d

1091, 1096 (11th Cir. 2008)). We will not impose any such restriction here, but we warn Taite that, if

he continues to submit abusive and frivolous filings to this Court, we will not hesitate to sanction

him—including with monetary sanctions. Cf. Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986)

(en banc) (“[Taite] can be severely restricted as to what he may file and how he must behave in his

applications for judicial relief.”); Roggio v. United States, 2013 WL 12176990, at *2 (S.D. Fla. Apr. 10,

2013) (Goodman, Mag. J.) (“Because Roggio is abusing the reconsideration motion mechanism, any

future violations may lead to an award of sanctions, including costs, attorney’s fees, and/or other

monetary or non-monetary sanctions, against him.”).

* * *

We therefore ORDER and ADJUDGE that the Complaint [ECF No. 1] 1s DISMISSED as

frivolous and with prejudice under 28 U.S.C. § 1915(g). The Clerk of Court shall CLOSE this case.

All pending motions ace DENIED as moot.

DONE AND ORDERED in the Southern District of Florida on November 20, 2023.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

ce: Marcus O. Taite, pro se