https://casetext.com/case/xelup-v-white-2Plaintiff Tushkahumoc Xelup and his spouse, Allison DeVante ("DeVante") have four children. In early September 2015, they lived in Cherokee County but were planning to relocate to Rhode Island. At some point, they travelled to Rhode Island, returning home on September 6, 2015. Pl.'s Compl. (Doc. 1) at 8.
Three days later, on September 9, 2015, DeVante left Plaintiff and their children at home in Cherokee County. Though DeVante claimed to be going to visit her sister in Asheville before the move to Rhode Island, Plaintiff alleges DeVante intended to abandon the family. Id.
On September 15, 2019, while Plaintiff was at home packing for the move to Rhode Island, Robert Todd White ("White") and Mark Gerbino ("Gerbino"), who Plaintiff appears to allege were law enforcement officers associated with the Cherokee County Sheriff's Office, came to Plaintiff's home. White informed Plaintiff that he had a temporary restraining order that required White to take custody of three of Plaintiff's children, ages 16, 14, and 4. Only two of the children were at home at the time; Plaintiff's 4-year-old daughter was visiting friends in Georgia with Plaintiff's eldest daughter, who was 18 years of age. Id. at 8-9. Plaintiff protested but did release the two children after being threatened with arrest. Id. at 9.
Throughout that evening, White repeatedly called Plaintiff and instructed him to travel to Georgia and return with his 4-year-old daughter, to which Plaintiff responded by promising to deliver the child to her mother when the child returned. Id.
Over the next several days, White continued to call Plaintiff's phone and threaten Plaintiff with arrest if Plaintiff did not bring the child back from Georgia. In addition, White repeatedly came to Plaintiff's house, "beating on the door, parking for long periods of time in the driveway and shinning [sic] the light at the house." Id.
On September 16, 2015, Plaintiff's 18-year-old daughter left Georgia with other family members (apparently including Plaintiff's 4-year-old daughter) and travelled to Tennessee. Id.
On September 19, 2015, Plaintiff contacted his 18-year-old daughter and instructed her to bring his 4-year-old daughter home so that the child could be delivered to Plaintiff's wife in Asheville. Id.
Plaintiff's 18-year-old and 4-year-old arrived home the next day, September 20, 2015, at which point Plaintiff drove his 4-year-old daughter to a police substation in Asheville near where DeVante was located. Id. at 10. Plaintiff informed the officers in Asheville that he was there to deliver the child and also advised that DeVante "had been declared mentally incompetent by the Veterans Administration." Id. An officer responded by telling Plaintiff that the officers could not assist in delivering a child to an incompetent person and instructed Plaintiff to return to Cherokee County and to make "them" (presumably meaning Cherokee County authorities) aware of that information. Id.
Plaintiff returned home with his daughter. Shortly thereafter, White came to Plaintiff's home and "told [Plaintiff] that he was going to jail" for transporting his daughter between states. Id.
Plaintiff questioned White's authority to arrest him and White responded that he was "making the arrest on [his] own authority, because [he had] proof." Id. Plaintiff cautioned White against this action and warned him that a "false arrest would bring repercussions." Id. at 11. Nonetheless,
Plaintiff was handcuffed by Gerbino and driven to the police station where he was fingerprinted and "given a $15,000.00 bond for crossing state lines and kidnapping." Id.
On Monday, September 21, 2015, Plaintiff suffered severe medical issues while in custody. Id. Plaintiff alleges he was recovering from open heart surgery, began having kidney spasms and chest pains, and was rushed to the hospital where he was "forced to ingest heart medicine, blood pressure medicine and other unknown substances in violation of cultural and traditional rights." Id.
On September 25, 2015, Plaintiff made an appearance in court. A hearing was held, at which Plaintiff's 18-year-old daughter testified. Following her testimony, "the judge found White's proof of interstate kidnapping to be false and without merit ... and dismissed all charges, including the [temporary restraining order]" and Plaintiff was released. Id.
On September 29, 2015, a photo of Plaintiff and a description of his arrest were published in a local newspaper. Id. at 12. II. Plaintiff's Other Actions and Relevant Procedural History
The exhibits attached to the Complaint refer to Plaintiff as "Joreal Devante." (Doc. 1-2).
The court may properly consider these filings, which are matters of public record. Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Plaintiff has filed three previous actions against the same defendants and based on the same transactions and occurrences as those set forth in the current Complaint.
A. Case #1— 1:17-CV-80-MR-DLH
On February 24, 2017, Plaintiff filed a complaint in the United States District Court for the District of Columbia (1:17-CV-334). At the same time, Plaintiff filed a motion for leave to proceed in forma pauperis. The case was then transferred to this district. Plaintiff's motion for leave to proceed in forma pauperis was denied without prejudice by order dated March 24, 2017 and Plaintiff was directed to file an Amended Application within 30 days. Plaintiff failed to pay the requisite filing fee or to file an Amended Application as required and therefore the case was dismissed without prejudice on May 1, 2017.
B. Case #2—1:17-CV-2048-UNA
On October 4, 2017, Plaintiff filed a new action in the District of Columbia. He also filed a motion for leave to proceed in forma pauperis. By Order filed on November 17, 2017, the Motion was denied and Plaintiff's action was dismissed without prejudice. The Order advised Plaintiff that he could seek to reopen the matter by way of a motion and either tendering the applicable $400 filing or submitting a proper IFP application. However, no subsequent filing appears on the docket in that matter.
C. Case #3— 1:18-CV-265-MR-DLH
On September 17, 2018, Plaintiff filed a third action, this time originally in this district. He also filed a motion to proceed in forma pauperis. On November 6, 2018, the Motion was denied without prejudice and Plaintiff was ordered either to file an Amended Application or pay the required filing fee. Plaintiff filed an Amended Application, but that application was denied as being improper and Plaintiff was directed to pay the required filing fee within 30 days. Plaintiff failed to do so and therefore this case was dismissed without prejudice on December 13, 2018.
Plaintiff appealed this ruling, but his appeal was dismissed by the Fourth Circuit for failure to prosecute.
D. The Current Case
In the instant case, Plaintiff filed his Complaint (Doc. 1) on January 28, 2019. Defendants Robert Todd White, Mark Gerbino, Cherokee County Sheriff Department, Derrick Palmer, and Cherokee County ("Defendants") filed their Motion to Dismiss (Doc. 5) and a memorandum in support (Doc. 6) on March 8, 2019. Plaintiff responded (Doc. 7) and Defendants filed notice that they would not be filing a reply (Doc.
.
Plaintiff did not submit a motion seeking to proceed in forma pauperis and instead paid the filing fee on February 5, 2019.
III. Legal Standard
When presented with a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must determine whether the complaint on its face states a plausible claim for relief. See Francis v. Giacomelli, 588 F. 3d 186, 189, (4th Cir. 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 670 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); accord Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). That is, while "detailed factual allegations" are not required, a claim must contain sufficient factual allegations to support the required elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Consumeraffairs.com, 591 F.3d at 256. The mere possibility that a defendant acted unlawfully is not sufficient for a claim to survive a motion to dismiss. Consumeraffairs.com, 591 F.3d at 256; Giacomelli, 588 F.3d at 193. In this regard, the court accepts the well-pled allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Consumeraffairs.com, Inc., 591 F.3d at 255. The court, however, is not required to accept as true "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement." Id.; see Giacomelli, 588 F.3d at 192.
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https://www.youtube.com/channel/UCvIrP5LxhNi5cTfdrRGhu9whttps://www.linkedin.com/in/tushkahumoc-xelup-205110105/https://www.barnesandnoble.com/w/the-phatts-and-the-lippids-tushkahumoc-xelup/1138137630https://threader.app/thread/1416820026183536640http://www.virginislandsdailynews.com/news/mans-claim-of-tribal-citizenship-fails-to-satisfy-court/article_68eac9a7-d80a-5808-aacb-8e11e947af62.html?utm_medium=social&utm_source=twitter&utm_campaign=user-sharehttp://www.virginislandsdailynews.com/news/st-thomas-man-charged-with-murder/article_89946f19-6f14-556a-ac54-57af4064b1bb.html----------
http://www.virginislandsdailynews.com/news/defendants-demand-judge-recognize-indigenous-citizenship/article_16207671-3a8f-577f-9610-3cece807c171.html?utm_medium=social&utm_source=twitter&utm_campaign=user-shareDefendants demand judge recognize indigenous citizenship
By SUZANNE CARLSON Daily News Staff Jul 26, 2021
The controversy over indigenous affiliations has come to the forefront in V.I. Superior Court on St. Thomas, as two men say their rights are being violated because the government does not recognize their true citizenship.
One of the men, whose legal name is Everett Parker, identified himself to Magistrate Judge Henry Carr III as “No Fear Everlasting Arawak.”
The other man was charged as an anonymous John Doe after presenting officers with “an identification card of the Maipuri Arauan Nation with the name ‘Warinu Kapa,’ ” according to police.
Both men refused to speak with Territorial Public Defender Paula Norkaitis, who had been assigned to represent them in court.
New Zealand ties?
“Kapa” claims to be “part of a tribe that is based in New Zealand,” according to Assistant V.I. Attorney General John Barraco.
A V.I. Police officer testified that his legal name is Terrance A. Martin III, and he has pending criminal charges from a previous arrest in May 2020. The officer said police also contacted the Bureau of Motor Vehicles, which had an identification card for Martin on file .
In the 2020 case, police said Martin attempted to ditch a firearm and flee the scene of a motor vehicle crash on Veterans Drive, but was quickly apprehended and charged with possession of an illegal firearm, unauthorized possession of ammunition and interfering with an officer.
Released after posting $5,000 cash and ordered to remain on 24-hour house arrest, with his father serving as a third-party custodian, Martin was arrested again Thursday. He was driving his father’s black Jeep Wrangler, which did not have a license plate or registration sticker, police said.
After smelling marijuana, officers conducted a search, and “a silver extended magazine for a Colt .45 was discovered in the glove compartment of the vehicle rolled up in a newspaper,” according to the police affidavit.
He appeared in court on July 16, but refused to cooperate and provide his legal name, so he was held in jail for three more days until he was formally identified as Terrance Martin.
When Carr asked the clerk to place Martin under oath, he said he doesn’t pledge oaths “to any foreign government,” but promised to tell the truth.
As Barraco said prosecutors filed an motion to revoke bail in the 2020 gun case, and asked for bail in the latest case to be set at $5,000 cash, Martin questioned the court’s authority.
“For the record, I’d like to know what jurisdiction we’re operating under, please,” Martin said.
“We’re operating under the jurisdiction of the United States Virgin Islands,” Carr replied.
The exchange is typical of individuals who follow the principles of sovereign citizenship, a movement with a diverse range of adherents who typically argue that they are foreign citizens or indigenous people not bound by government rules.
The judge set Martin’s bail at $5,000 cash or property, but said that he must consent to processing, including fingerprinting, before he can be released from jail.
“I’m really not asking for that much. And should he fail to cooperate he will remain in custody until this matter has been resolved. The keys are in the defendant’s hands,” Carr said.
“It’s not my wish he be retained in jail indefinitely.”
$10 million federal lawsuit
Many Virgin Islanders who identify as descendants of the region’s indigenous people don’t necessarily claim sovereign citizenship, or seek to distance themselves from the government by taking steps like refusing to apply for identification documents or pay taxes.
But some individuals claiming forms of sovereign citizenship have been known to employ a variety of tactics to frustrate courts and slow legal proceedings. Some choose to obtain government services a la carte, such as driver’s licenses, while others reject government authority entirely.
Law enforcement and government agencies like motor vehicle bureaus have published guides for employees who encounter sovereign citizens that refuse to comply with laws or regulations, and warn of tactics like “paper terrorism,” the filing of voluminous court documents that don’t follow the typical rules of court procedure.
On June 21, Martin filed a lawsuit under the name “Warinu Kapa,” claiming he is entitled to at least $10 million in damages because the Virgin Islands government is falsely prosecuting him, according to documents filed in U.S. District Court.
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Martin said he is an “enrolled citizen of the Maipuri Arauan Nation, a ‘Treaty Protectorate Nation’ of the Maori Hapu Nation of New Zealand” and his ancestry predates colonization so he “is a nonparty to the ‘Convention between the Government of the United States of America and the Government of the Kingdom of Denmark,’ ” and “is not a Resident of either the Virgin Islands or the United States.”
The 11-page lawsuit names as defendants Gov. Albert Bryan Jr., the police department and two officers involved in his May 2020 arrest.
The lawsuit claims 18 individual counts against the officers, including conspiracy to commit kidnapping, false arrest, illegal detention, and “identity theft and prosecution under apartheid conditions.”
Martin also wrote that in 2020, “plaintiff and other tribal families of the Virgin Islands sent official request” to Bryan “to discuss tribal matters and provide protections by instructing the agencies of the Virgin Islands of the United States concerning the rights of indigenous inhabitants, but all requests have gone unanswered.”
Martin claims that Bryan is perpetuating “environmental racism” and has “violated and continues to violate the human rights of the indigenous Arawak people of the Virgin Islands territory, forcing assimilation of identity as citizens and forced jurisdiction barring the rights of indigenous people, led to and aided in the intimidation and false arrest of plaintiff.”
Parker makes his case
Like Martin, Parker said in court recently that he was not permitted to swear an oath to a foreign nation.
Parker said he is “an indigenous tribal member” of one of the seven founding nations of indigenous peoples and openly quarreled with Carr over how the court should refer to him, after identifying himself as “No-Fear-Everlasting Arawak.”
Carr asked if his name was Everett Parker.
Parker said it “depends,” on whether the charging documents spelled that name with all uppercase letters, as is common in court records.
“It’s all uppercase, right? Well, let me make the distinction clear as to who I am and who you’re looking for,” Parker said. “The all-uppercase distinction of any individual spoken of in common English parlance refers to either a person that is dead or corporate. Am I correct?”
“What is your birth date, sir?” Carr asked in reply.
“Can you answer my question, first?” Parker demanded. “I will not tell you that until you answer my question.”
Parker repeatedly attempted to steer the hearing away from his criminal charges to matters of citizenship.
He explained that he was “formerly” known as Everett Parker Jr., and had “already gone ahead and made constructive notice to the United Nations and several other entities, like the President of the United States,” that he had claimed another identity.
Carr stopped him and said he was not interested in that, and needed to proceed with the hearing.
Parker and another man were arrested after police said they got into a physical fight over a parking space at Oswald Harris Court.
The only evidence that the other man had committed a criminal assault was contained in Parker’s statement to police — which Carr said he could not rely on, given Parker’s refusal to be processed by officers, and his unwillingness to cooperate with his attorney.
Carr ordered the charges dismissed against the other man. Carr also dismissed a simple assault charge filed against Parker, but found probable cause for obstructing an officer.
Barraco said it’s unclear from the record whether Parker is a flight risk, “except for the fact that he won’t cooperate at all and he says he belongs to another nation.”
“I don’t really care what nation he belongs to,” as long as he doesn’t commit additional crimes, Carr said. “He can do whatever he wants in his private life.”
Carr said that if Parker cooperates with police processing, he can be released on his own recognizance.
Ultimately, Parker said he has a driver’s license, and will call someone who can bring that identification to the court.
