ADDERLEY v. AUSTIN

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

TYRONE O’NEILL ADDERLEY JR.,

Plaintiff,

vs. Case No. 4:24-cv-302-MW-MAF

ALRICK AUSTIN, et al.,

Defendants.

___________________________/

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, filed a document which he titled “Notice of

Removal” on July 31, 2024, alleging “violations of the law of war” and

“violation of the law of occupation under the trading with the enemy act.” ECF

No. 1. He also sought removal of his state criminal charges under 28 U.S.C

§ 1455. Id. The Court reviewed the filing and allowed Plaintiff an opportunity

to amend due to multiple deficiencies.1 ECF No. 5. On August 9th, Plaintiff

filed an “Amended Notice of Removal,” ECF No. 6, and a completed motion

1 The Court observed that Plaintiff’s filing was nonsensical. There were two primary

defects: failure to comply with the Local Rules in the form and substance of the complaint,

and – to the extent Plaintiff was seeking removal instead of a civil rights claim – failure to

comply with 28 U.S.C § 1455, the federal removal procedure. The Court explained the

requirements of the Local Rules and § 1455 to Plaintiff. The Court further warned Plaintiff

that failure to comply with the order would result in entry of a recommendation to dismiss

the case. See ECF No. 5

to proceed in forma pauperis (IFP), ECF No. 7. His IFP motion has been

granted in a separate order entered today.

Because Plaintiff alleges numerous civil-rights-type claims and seeks

damages, the Court construes his amended notice of removal as an

amended complaint. The Court has reviewed the amended complaint

liberally to determine whether his allegations are sufficient to proceed. 28

U.S.C § 1915(e)(2); Mederos v. United States, 218 F.3d 1252, 1254 (11th

Cir. 2000).

I. Allegations of the Amended Complaint, ECF No. 62

Plaintiff’s amended complaint gets off to a better start than his original.

The allegations are now on a court-approved § 1983 complaint form, and not

a “Moorish Science Temple of America Consular Court” form. See generally

ECF No. 6 versus ECF No. 1. Unfortunately, his claims are still nothing more

than copy-pasted legal gobbledygook.3

His amended complaint cites the following as the bases for his claims:

2 Plaintiff lists ten Defendants who he says violated the ‘law of war’: Mr. Austin (a

bondsman); Sheriff McNeil (Leon County’s Sheriff); Ms. Moody (Florida’s Attorney

General); Mr. Morris (Plaintiff’s defense attorney); Special Assistant State Attorney

Vallejo; Judge Allman and Judge Everett (Leon County Circuit Court); State Attorney Jack

Campbell; Assistant State Attorney McCarthy; and Ms. Marshall (Leon County Clerk of

Court).

3 “Wordy and generally unintelligible jargon; gibberish.” Gobbledygook. Merriam-

Webster.com, https://www.merriam-webster.com/dictionary/gobbledygook. (Accessed

Aug. 22, 2024).

28 U.S.C § 1455 (Removal); 50 U.S.C § 4309(b)(2) (Trading with the Enemy

Act);4 Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405

U.S. 150 (1972); United States Constitution: Preamble, Article VI, Fifth

Amendment, Sixth Amendment; Article 20, 21, 23 Treaty of Peace with

Morocco 1836;5 and various articles of the Geneva Convention.6 ECF No. 6

at 5. Plaintiff claims each of the Defendants:

“are…jointly and severally responsible in some manner for the willful,

intentional, wrongful, and wanton withholding of the Exculpatory

Provisions of the Trading with the Enemy Act – any payment made to

the account of the United States shall be a FULL ACQUITTAL AND

DISCHARGE and no person shall be liable in any court THEREFORE

THE (ALLEGED) CRIMINAL COURT IS WITHOUT JURISDICTION.”7

Id. at 7 (emphasis from original) No facts are provided as to what any of the

Defendants did to commit such war crimes, but Plaintiff attaches a copy of a

“Third Amended Information” from Leon County Circuit Court Case No. 2022

CF 1960B as “Exhibit A,” Id. at 12-16 (charging him with two counts of felony

4 The Trading with the Enemy Act’s “dominant purpose [is to] give…citizens and alien

friends an adequate remedy for invasions of their property rights in the exercise of the

war powers of the government.” Becker Steel Co. of Am. v. Cummings, 296 U.S. 74, 81,

56 S. Ct. 15, 19, 80 L. Ed. 54 (1935). It appears wholly inapplicable to Plaintiff.

5 The Treaty of Morocco primarily relates to maritime and admiralty matters. It does not

apply to “claims challenging any events associated with arrests, searches, detention,

incarceration, prosecution, conviction, etc. that occur within the United States' actual

geographical territory.” Murakush Caliphate of Amexem Inc. v. New Jersey, 790 F. Supp.

2d 241, 272 (D.N.J. 2011); See also Pitt-Bey v. D.C., 942 A.2d 1132, 1136 (D.C. 2008)

6 There is nothing to suggest Plaintiff is a soldier or civilian in an area of armed conflict.

7 This type of sovereign-citizen-esq argument has been repeatedly rejected as frivolous.

See Henry v. Fernandez-Rundle, 773 F. App'x 596, (Mem)–598 (11th Cir. 2019).

drug trafficking), and a copy of the docket for that case as “Exhibit B.” Id. at

17-20. He also claims each Defendant is engaged in a conspiracy and “each

of the accused Defendants/Respondents did ratify and approve the acts of

the remaining accused Defendants/Respondents” in violation of the above-

listed federal laws. Id. at 7. Plaintiff never explains what these ‘acts’ are.

Plaintiff seeks $9.5 million in unspecified “damages” to be paid “in

lawful money of .9999 fine silver bullion coins or bars.” Id. at 8, 10. This

treasure is so owed as a result of numerous wrongs, including “Unlawful 14th

Amendment Forced Conscription,” “tax fraud,” “extortion,” “Hobbs Act

Robbery,” and “Constitutional Emoluments Real Estate Account: Fraudulent

Bail Bond Contracts.” Id. at 10. A breakdown of the damages is included,

citing $1 million each for “trespass,” “terrorism,” “genocide,”

“denationalization under the ‘Black Code’,” “false identity,” “theft,”

“libel/slander,” “fraud in the inducement,” “consular assistance,” and

$500,000 for “miscellaneous expenses (i.e. mailing paper, ink, copies, etc.).”

Id. Last, he seeks “the appointment of disinterested counsel to investigate

and prosecute such criminal contempt by military commission proceedings.”

Id. at 10.

In relation to Plaintiff’s removal request, he contends removal is timely

“because it is based upon the Third Amended Information which was

filed…August 1, 2024.” Id. at 9. No other facts, grounds, or reasons for

removal are stated. Plaintiff also again failed to attach “a copy of all process,

pleadings, and orders served upon” him in the case. 28 U.S.C § 1455(a).

II. Sufficiency of Civil Rights Claims

Plaintiff’s amended complaint is chockfull to the brim of nonsensical

legal conclusions and woefully void of factual allegations. Aside from the fact

that Plaintiff has been charged by Information with several counts of drug

trafficking, as shown by his “Exhibit A,” no other facts are present. He also

fails to explain what any of the Defendants did or failed to do to violate his

constitutional rights.8

A well-pleaded complaint “demands more than an unadorned, the-

Defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). A complaint like the Plaintiff’s, “that offers labels and

conclusions…will not do.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007). This includes complaints that “tender naked assertions

devoid of further factual enhancement.” Id. And while a court must accept

as true all allegations in a complaint, this does not extend to legal

conclusions or “a legal conclusion couched as a factual allegation.” Id.

8 As it relates to the Government-official Defendants, Plaintiff must “plead that

each…through the official’s own individual actions, has violated the Constitution.” Iqbal,

556 U.S. 662 at 676.

Under 28 U.S.C § 1915(e)(2)(B), the Court must dismiss a case if it is

“frivolous or malicious; fails to state a claim on which relief can be granted;

or seeks monetary relief against a Defendant who is immune from such

relief.” A claim is frivolous, and must be dismissed, if it “lacks an arguable

basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989);

See also Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008). “Factual

allegations must be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. 544, 555 (2007). Plaintiff’s amended complaint,

even construed liberally, lacks an arguable basis in both law and fact. It is

frivolous for several reasons.9

First, as the Court has discussed, the entirety of Plaintiff's amended

complaint is conclusory and fails to state a claim. The allegations do not

satisfy Rule 8, the Iqbal pleading requirements, or the Local Rules.10 Plaintiff

provides no specific facts as to how any of the Defendants violated his

constitutional rights. The allegations do not come close to establishing “more

9 Insomuch as Plaintiff relies on the Treaty of Peace with Morrocco, “all such prisoners'-

litigation-like claims invoking [the Treaty], either collectively or individually, are necessarily

frivolous which, in turn, means that any pleading asserting such claims is not bona fide.

Murakush Caliphate, 790 F. Supp. 2d 241, 272 (D.N.J. 2011)

10 Rule 8 requires a complaint contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff was previously advised

by the Court that the Local Rules require Plaintiff to present factual allegations which

reveal a basis for naming each person as a Defendant as well as how and when the

Defendants took actions which Plaintiff believes violated his constitutional rights. ECF No.

5 at 3; N.D. Fla. Loc. R. 5.7.

than a sheer possibility” that any of the Defendants “acted unlawfully.”

Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013).

Next, Plaintiff seeks monetary relief from several Defendants who are

likely immune. This includes two Leon County Circuit Court judges, a State

Attorney, two Assistant State Attorneys, a County Court Clerk, and Florida’s

Attorney General. Though he does not specifically indicate in what capacity

he is suing each Defendant, he references each as “acting as” their

occupation, i.e. “Francis J. Allman (acting as judge),” ECF No. 2-4, which

suggests he is pursing official capacity claims.

Well-established law provides “absolute immunity” to a judge who is

acting within his or her judicial capacity. Stevens v. Osuna, 877 F.3d 1293,

1301 (11th Cir. 2017). This immunity also applies to prosecutors. Imber v.

Pachtman, 424 U.S. 409 (1976). Court clerks, too, are provided some level

of immunity when carrying out their official actions.11 Lomax v. Ruvin, 387 F.

App'x 930, 932 (11th Cir. 2010).

To the degree Plaintiff has named Attorney General Moody in her

official capacity, those claims are barred. An official capacity claim is just

11 Whether Ms. Marshall would be entitled to absolute or qualified immunity cannot be

determined at this stage because the amended complaint lists no facts explaining what

action or inaction she took against Plaintiff. Regardless, dismissal as frivolous and for

failure to state a claim is still appropriate.

“another way of pleading an action against an entity of which an officer is an

agent.” Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S. Ct. 3099, 3105,

87 L. Ed. 2d 114 (1985). Absent limited exceptions which are not present

here, the State of Florida and its agencies are immune from suit in federal

court by force of the Eleventh Amendment. Carr v. City of Florence, Ala.,

916 F.2d 1521, 1524 (11th Cir. 1990).

If Plaintiff is asserting supervisory or vicarious liability against any

Defendants12 – seemingly the natural choices would be Attorney General

Moody, Sheriff McNeil, Clerk Marshall, and possibly State Attorney Campbell

– those theories are inapplicable to § 1983 claims. Iqbal, 556 U.S. 662, 676

(2009); Craig v. Floyd County, Ga., 643 F.3d 1306, 1310 (11th Cir. 2011)

(liability under § 1983 cannot be based under a theory of respondeat

superior). Plaintiff also has not alleged any policies or customs created by

any of the Defendants that caused the alleged constitutional violations. Cook

ex rel. Estate of Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1116

(11th Cir. 2005).

Plaintiff was already given an opportunity to amend his claims. The

amended allegations remain so delusional, conclusory, and meritless that

the defects cannot be cured by further amendment. Plaintiff’s claims as to all

12 Again, this is unclear because no facts are alleged.

Defendants warrant dismissal with prejudice as frivolous and for failure to

state a claim on which relief may be granted under 28 U.S.C §

1915(e)(2)(B).13

III. Sufficiency under Removal Provisions

To the extent Plaintiff seeks removal of his state criminal court case,

he again fails to meet the requirements for removal under 28 U.S.C § 1455.

The statute requires Plaintiff’s notice to comply with each of three

procedural prongs: it must contain a factual basis for why the case should be

removed; it must include a copy of “all process, pleadings, and orders served

upon the defendant”; and it must be filed no later than 30 days after the State

court arraignment, or before trial, “whichever is earlier,” except for good

cause shown. 28 U.S.C § 1455(a) & (b)(1). Plaintiff fails as to all three.

First, as mentioned earlier, Plaintiff’s amended notice fails to state any

reasons for removal.14 It does not appear, nor does Plaintiff allege, that he

meets any of the limited circumstances in which a state criminal court case

13 The Eleventh Circuit has consistently affirmed dismissal with prejudice of frivolous

complaints. See, e.g., Broner v. Washington Mut. Bank, FA, 258 F. App'x 254, 256 (11th

Cir. 2007); Austin v. Judge, 851 F. App'x 173, 175 (11th Cir. 2021); Nails v. Franklin, 279

F. App'x 899, 901 (11th Cir. 2008); Hernandez v. Palm Beach Cnty. State Att'y, No. 23-

11024, 2023 WL 9642821, at *2 (11th Cir. Aug. 31, 2023), cert. denied, 144 S. Ct. 1121,

218 L. Ed. 2d 355 (2024).

14 28 U.S.C § 1455 is not a self-standing basis for removal. It simply “provides procedures

that must be followed in order to remove a criminal case from state court when a

defendant has the right to do so under another provision.” Georgia v. Meadows, 692 F.

Supp. 3d 1310, 1318 (N.D. Ga.), aff'd, 88 F.4th 1331 (11th Cir. 2023) (quoting Kruebbe v.

Beevers, 692 F. App'x 173, 176 (5th Cir. 2017)).

can be removed to federal court.15 Even if the Court were to construe what

it has already deemed Plaintiff’s frivolous and meritless civil rights claims as

a basis for removal under 28 U.S.C § 1443, “broad assertions under the

Equal Protection Clause or § 1983…are insufficient to support a valid claim

for removal under § 1443(1).” Alabama v. Conley, 245 F.3d 1292, 1295–96

(11th Cir. 2001).

Second, Plaintiff again fails to attach a copy of all process, pleadings,

and orders served upon him in his State case.

Third, Plaintiff’s amended notice is untimely. He has not stated or

shown when he was arraigned in state court, only attaching the “Third

Amended Information” and a docket printout. ECF No. 6 at 14-16, 18-20.

The Court takes judicial notice of the record in Plaintiff’s underlying criminal

case, Leon County 2022 CF 1960B (consolidated from 2022 CF 1962A). The

docket reflects Plaintiff was arrested on June 28, 2022 in 2022 CF 1962A.

Docket # 1 of that case. On June 30, 2022, Plaintiff’s public defender filed a

“conditional plea of not guilty” on his behalf. Docket # 30 of that case. The

conditional plea states that “Florida Rule of Criminal Procedure 3.166(a)

authorizes a written plea of not guilty when a defendant is represented by

15 28 U.S.C §§ 1442 (federal or state officers), 1442a (member of armed forces), and/or

1443 (denial of civil rights, interpreted in terms of racial discrimination, See, e.g., Johnson

v. Mississippi, 421 U.S. 213, 219 (1975)).

counsel; the effect of the written plea is to waive arraignment.”16 Id. In

January 2023 after Plaintiff was appointed conflict counsel, that attorney also

filed a written waiver of arraignment. Docket # 56 of that case. Consistent

with the waiver(s), neither docket shows an arraignment event for Plaintiff.

It is well established that Florida Rule of Criminal Procedure 3.160(a)

permits counsel to “file a written plea of not guilty at or before arraignment

and thereupon arraignment shall be deemed waived.” Albritton v. White, 948

So. 2d 852, 853 (Fla. 2d DCA 2007). Thus, Plaintiff waived arraignment over

two years ago. A timely notice of removal would have been filed within 30

days of the waiver. See Pledger v. Gorman, No. 16-2517-JAR-GLR, 2016

WL 4613391, at *2 (D. Kan. Sept. 6, 2016).

In one of Plaintiff's only factual assertions, he attempts to show good

cause for his untimeliness, stating, “it is based upon the Third Amended

Information filed…on or about August 1, 2024.” ECF No. 6 at 9. It is true the

State has amended the information several times. In May 2023, the State

consolidated Plaintiff’s Trafficking in Methamphetamine charge (offense date

June 28, 2022) from 2022 CF 1962 into 2022 CF 1960. Docket # 6 of 2022

CF 1960. Other than Plaintiff becoming the “B” Defendant, nothing about his

16 The citation of “3.166(a)” appears to be a typo by the public defender. There is no Rule

3.166 in the Florida Rules of Criminal Procedure. Rule 3.160(a), however, governs waiver

of arraignment by counsel and written pleas of not guilty.

charge changed. Id. On August 1, 2024, the State again amended the

information, this time adding a charge against Plaintiff – Conspiracy to Traffic

in Methamphetamine – with the same June 28th offense date. Docket # 67

of that case. That being said, the filing date of an amended information is not

an arraignment date, and the third amended information did not substantively

change the facts of Plaintiff’s case. Good cause for the two-year delay hasn’t

been shown.

Plaintiff’s allegations are without merit under any federal removal

provision and he fails to meet the procedural requirements of § 1455.

Because it is clear from the face of the amended notice and its exhibits that

removal should not be permitted, the Court recommends an order for

summary remand. See 28 U.S.C § 1455(b)(4).

IV. Recommendation

For the reasons discussed, it is respectfully RECOMMENDED that

Plaintiff's “Amended Notice of Removal,” ECF No. 6, construed under 28

U.S.C § 1983, be DISMISSED with prejudice as frivolous and for failure to

state a claim on which relief may be granted pursuant to 28 U.S.C §

1915(e)(2). The dismissal should count as a “strike” pursuant to 28 U.S.C §

1915(e)(2)(B)(i) and (ii). As construed under 28 U.S.C § 1455, it is

respectfully RECOMMENDED that Plaintiff's “Amended Notice of Removal,”

ECF No. 6, be DENIED and the case be REMANDED to state court.

IN CHAMBERS at Tallahassee, Florida on August 22, 2024.

s/ Martin A. Fitzpatrick

MARTIN A. FITZPATRICK

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Within fourteen (14) days after being served with a copy of this

Report and Recommendation, a party may serve and file specific

written objections to these proposed findings and recommendations.

Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon

all other parties. A party may respond to another party’s objections

within fourteen (14) days after being served with a copy thereof. Fed.

R. Civ. P. 72(b)(2). Any different deadline that may appear on the

electronic docket is for the Court’s internal use only and does not

control. If a party fails to object to the Magistrate Judge’s findings or

recommendations as to any particular claim or issue contained in this

Report and Recommendation, that party waives the right to challenge

on appeal the District Court’s order based on the unobjected-to factual

and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636(b)(1)(C).