Federal Magistrate John J. O’Sullivan Omits Material Facts In Order to Deceive

Judge Donald L. Graham, “Teflon Don”

Purpose of this Post

This post will take a Report and Recommendation,”R&R” of Federal Magistrate John J. O’Sullivan and demonstrate that he intentionally omitted material facts for the sole purpose of deception. Judge O’Sullivan, suggests without stating, that the Eleventh Circuit had reviewed two orders for validity when knew or should have known that they didn’t. If the Eleventh Circuit had declared the orders in question to be valid and constitutional, all Judge O’Sullivan needed to do was say so. Admittedly, this post presumes that Magistrate John J. O’Sullivan reads the documents that he references in his R&R and that he reads the documents that support a pending motion. The purpose of this post is to:

• Question the personal integrity of Federal Magistrate John J. O’Sullivan.
• Vindicate the personal integrity of Marcellus Mason.
• To show the extreme measures federal judges will employ to protect each other.
• To help make the argument that “judicial independence” equals judicial non-accountability.
• To show how a judge can fit the “facts” around desired outcome and place the document beyond public scrutiny.
• To demonstrate that the federal judicial process needs the disinfectant of sunlight and public scrutiny.

Magistrate John J. O’Sullivan left out the material fact that the Eleventh Circuit, on appeal, refused to discuss the validity of two orders, though fully briefed, (DE# 201 and 246), that it claimed that Marcellus Mason violated. It is really quite a remarkable story in that the Eleventh Circuit spent 14 pages talking about Mason’s supposed violations of these orders, but none talking about their validity which is the reason the appeal was filed in the first place. It could have saved itself some pages and “judicial resources” by simply recognizing the orders are not legal in the first place. However, the Eleventh Circuit chose to give the illusion of “meaningful appeal”.

Pertinent History [Case No. 99-14027-CV-Graham/Lynch]

On June 15, 2000, Docket Entry 199, and July 12, 2000, Docket Entry 231, Maria Sorolis and Brian Koji, Allen, Norton Blue asked Judge Graham’s Magistrate, Frank Lynch, Jr., to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants, the Highlands County Board of County Commissioners. These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL. These orders were granted by the Magistrate, Frank Lynch, Jr., on June 19, 2000 and July 25, 2000.

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

(DE #201). This order is dated June 19, 2000. Additionally, these orders directed that Mason contact these same lawyers prior to making public records request under Florida law. Between June 19, 2000 and July 25, 2000, Mason repeatedly challenged the jurisdiction of the district court via motions and the like. Judge Graham and the Magistrate absolutely refused to state where they got the legal authority from to issue these orders.

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.

(DE #246).

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

Judge Graham has held that the above are orders are not “clearly erroneous nor is it contrary to law.” Specifically Judge Donald L. Graham held:

On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary Defendants in this action. Upon notice that Plaintiff was violating this order, Defendants filed a Renewed Motion For Preliminary Injunction. On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants’ Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. Magistrate Judge Lynch also ordered that Plaintiff shall only correspond with Defendants’ counsel.

Plaintiff then moved to rescind the July 25, 2000 order, however, on August 15, 2000, Magistrate Judge Lynch denied Plaintiff’s Motion to Rescind. Plaintiff appeals the August 15, 2000 ruling. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch’s ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).

See Docket Entry No. 407 dated November 2, 2000.

Impetus Of Judge O’Sullivan’s Statement

The act that precipitated Judge O’Sullivan’s statement was a “Motion to Vacate Conviction”, in Case No. 02-14020-CR-Moore, Document No. 106. Case No. 02-14020-CR-Moore was a criminal contempt case based upon Mason’s alleged non-compliance with a clearly void sua sponte issued pre-filing injunction. This is an interesting matter in and of itself, however discussing the nature of this case is not the purpose here. For more information see, mcneilmason.wordpress.com, generally, and specifically a post entitled “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life“. The “Motion to Vacate Conviction” was filed on 07/17/2007, (D.E. #106). Among other things, this motion sought to have the following orders rendered by Judge Graham and his Magistrate, Frank Lynch, Jr., declared unconstitutional:

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

(DE #201), datd June 19, 2000.

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.

(DE #246),

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

This motion sought declaratory relief pursuant to Rule 60(b) Fed.R.Civ.P. which in pertinent part states:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (4) the judgment is void;

A Rule 60(b)(4) is not subject to any time limitation. Carter v. Fenner, 136 F.3d 1000,1006 (C.A.5 (La.), 1998); Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130 (C.A.11 (Fla.), 1994)(“the time within which a Rule 60(b)(4) motion may be brought is not constrained by reasonableness”). At page 3, this motion specifically asserts:

On October 16, 2002, the Eleventh Circuit decided the direct appeal, D.C. Case No. 99-14027-CV-Graham, 11th Cir. Case No. 01-13664. In the entirety of the very verbose 14 page (unpublished) opinion, there is no discussion as to why the so-called “discovery orders”,[(D.E. #201); ,[(D.E. #246)] were or were not violative of the First Amendment; however, there is ample discussion about Mason’s so-called violation of these “discovery orders.”

At page 23, this motion specifically requests the following remedy:

A declaration that the so-called “discovery orders”, Case No. 99-14027-CV- Graham, (D.E. #201, dtd. 6-19-2000) and (D.E. #2461, dtd. 7-25-2000), are unconstitutional.

The “Motion to Vacate Conviction”, Document No. 106, uses nine pages, 15-23, of small type, 10 point, to argue that the orders are invalid and unconstitutional. Apparently, Judge O’Sullivan is unable to reach the desired outcome so he just ignores the arguments.

The Defendant, Highlands County Board of County Commissioners, in the lawsuit who was the beneficiary of the court’s largess with respect to the above orders filed no brief against this motion. Consequently, the motion should have been granted by default pursuant to Local Rule 7.1.C which states:

C. Memoranda of Law. Each party opposing a motion shall serve an opposing memorandum of law not later than ten days after service of the motion as computed in the Federal Rules of Civil Procedure. Failure to do so may be deemed sufficient cause for granting the motion by default.

Judge O’Sullivan’s Act of Deception

The following is a direct quote from the Report and Recommendations authored by Federal Magistrate Judge John J. O’Sullivan.

The undersigned notes that in his appeal to the Eleventh Circuit, appellate Case no. 01-13664, the defendant made essentially the same arguments he makes here with respect to Judge Lynch’s Orders (DE# 201 and 246). See Mandate (DE# 929 in 99-cv-14027-DLG, 4/18/03). The defendant argued that the Orders (DE# 201 and 246) violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records. Id. at 11. Notwithstanding the defendant’s arguments, the Eleventh Circuit affirmed the district court’s dismissal of case no. 99-cv-14027-DLG based on the defendant’s continued violations of the orders issued in that case. Accordingly, the defendant’s request for a declaration that Judge Lynch’s Orders (DE# 201 and 246) are unconstitutional should be DENIED.

Report and Recommendations, R&R, Doc. No. 118. If the Eleventh Circuit had declared the orders in question to be valid and constitutional, all Judge O’Sullivan needed to do was say so. Instead Judge O’Sullivan chose to engage in the act of stating deceptive truisms that purposedly evaded the issue. Every word of the Magistrate’s statement is true and there in lies the danger. When the general public or the legal community reads the statement of a federal judge they automatically assume them to be true. If a litigant disagrees with a decision of a judge, he or she is automatically branded a mere “disgruntled litigant”; consequently, the “disgruntled litigant” is not to be believed. There is another alternative and that is the Judge could be untruthful as Judge O’ Sullivan is here. The clear and unmistakable intent of Judge O’Sullivan’s statement is to suggest the orders, DE# 201 and 246, in question were reviewed for validity by the Eleventh Circuit on appeal in Case No. 01-13364. If Judge O’Sullivan read the document he referenced, DE# 929, or page 3 of the motion, Document No. 106, then he clearly would have noticed that the only review of these orders, DE# 201 and 246, consisted solely of the following statement:

On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.”

DE# 929, is 17 pages consisting of three documents: (1)a cover letter from the Eleventh Circuit; (2)a mandate from the Eleventh Circuit; (3)An unpublished “opinion”, Case No. 01-13664, a direct appeal. The quoted statement comes from page 11 of the document and page 9 of the opinion. The undisputed fact is that Judge O’Sullivan was being untruthful. Yet again, Teflon Don, avoids scrutiny again.

Fifth Circuit, US Court of Appeal

The Fifth Circuit, U.S. Court of Appeal has rejected a similar injunction as unconstitutional. According to the Fifth Circuit, U.S. Court of Appeal, Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) an order that an order enjoined a litigant “from communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, its staff, or TES’s counsel, counsel’s employees, or counsel’s staff” constituted an invalid prior restraint and a unconstitutional limitation on free speech. Judge Vanessa D Gilmore in Test Masters who was reversed, while Judge Graham has escaped appellate review because the Eleventh Circuit has declined to review his orders or injunctions for validity in what has to be a record number of times. See this mcneilmason.wordpress.com posting “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“. Yet again, Judge Graham has avoided appellate rebuke while his colleagues have not be so fortunate. Judge Graham has frequently benefited by such disparate treatment. See postings, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge” and ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal“. The myth of the “Teflon Don” grows larger!

Pertinent History [Case No. 99-14027-CV-Graham/Lynch]

On June 15, 2000, Docket Entry 199, and July 12, 2000, Docket Entry 231, Maria Sorolis and Brian Koji, Allen, Norton Blue asked Judge Graham’s Magistrate, Frank Lynch, Jr., to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants, the Highlands County Board of County Commissioners. These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL. These orders were granted by the Magistrate, Frank Lynch, Jr., on June 19, 2000 and July 25, 2000.

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

(DE #201). This order is dated June 19, 2000. Additionally, these orders directed that Mason contact these same lawyers prior to making public records request under Florida law. Between June 19, 2000 and July 25, 2000, Mason repeatedly challenged the jurisdiction of the district court via motions and the like. Judge Graham and the Magistrate absolutely refused to state where they got the legal authority from to issue these orders.

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.

(DE #246).

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

Judge Graham has held that the above are orders are not “clearly erroneous nor is it contrary to law.” Specifically Judge Donald L. Graham held:

On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary Defendants in this action. Upon notice that Plaintiff was violating this order, Defendants filed a Renewed Motion For Preliminary Injunction. On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants’ Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. Magistrate Judge Lynch also ordered that Plaintiff shall only correspond with Defendants’ counsel.

Plaintiff then moved to rescind the July 25, 2000 order, however, on August 15, 2000, Magistrate Judge Lynch denied Plaintiff’s Motion to Rescind. Plaintiff appeals the August 15, 2000 ruling. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch’s ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).

See Docket Entry No. 407 dated November 2, 2000.

Eleventh Circuit, U.S. Court of Appeal

Case No. 01-13664. The Eleventh Circuit,
Judge Stanley F. Birch, Jr., Judge Susan H. Black, and Judge Stanley Marcus, rendered a prolix 14 page opinion on October 16, 2002 that does not discuss the validity of these orders. It is quite remarkable in that The Eleventh Circuit is single-mindedly focused on alleged out of court communications with his government by Mason as alleged violations of the orders above while steadfastly refusing to review the validity of these orders. On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.” See Pg. 10. Even though The Eleventh Circuit admitted the orders in question were being tested for validity on appeal, The Eleventh Circuit refused to review these orders for validity.

FEDERAL JUDGE VIOLATES FIRST AMENDMENT, TENTH AMENDMENT RECEIVES ABSOLUTE IMMUNITY

Judge Donald L. Graham, “Teflon Don”

Purpose of This Post

In order to preclude the haters and defenders of the status quo from their seemingly religious fervor for judicial independence, the purpose of this post is not to argue that U.S. Dist. Judge Donald L. Graham, “Teflon Don” did not have “absolute immunity” or “judicial immunity” for the prohibited acts described here. On the contrary, it is to show the American public what federal judges can receive immunity for. This post will demonstrate that a judge can act like a bull in a china shop with respect to the constitution and well established law and still escape accountability. Additionally, this post will document the Eleventh Circuit’s affinity for deploying unpublished opinions that deliberately omit material facts in order to achieve the desired outcome. The Eleventh Circuit lacks testicular fortitude and the courage of its beliefs because it adamantly refuses to state the acts that Judge Graham was given absolute immunity for. If Teflon Don has really has immunity, then why won’t his enablers state what he is immune from? Chief Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, does not consider a federal judge’s willful disdain and contempt for the Constitution of the United States and well established law to be misconduct within the meaning of the Judicial Misconduct and Disability Act. Lastly, the American Bar Association, “ABA”, has asked the American public to drink its Jim Jones type koolaid and their dogmatic mantra of “judicial independence”. This post will demonstrate the dangers of “judicial independence” versus public scrutiny and accountability.

See if you can tell, by reading the opinion only, what Judge Graham is given immunity from.

ELEVENTH CIRCUIT’S OPINION

Case No. No. 02-13418, Unpublished Opinion by Judge Ed Carnes, Judge Charles R. Wilson, and Judge Phyllis A. Kravitch.

The following represents the only discussion in the entire Opinion as to why Judge Graham and his Magistrate, Frank Lynch, Jr. have absolute immunity.

Viewing the facts in a light most favorable to Mason, we find that he fails to state a cognizable First Amendment claim against Judges Graham and Lynch that would entitle him to relief under § 1983, § 1985 or § 1986. Moreover, judges are entitled to absolute judicial immunity for all acts undertaken in their official capacity unless they acted in “clear absence of all jurisdiction.” See Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000). Neither party disputes that the alleged constitutional violations arose out of actions taken by Judges Graham and Lynch in their official capacities. While Mason alleges that the orders issued by both judges were “illegal and void ab initio” he fails to plead any facts that show that the judges did not act within their legitimate jurisdiction. Therefore, absolute judicial immunity precludes § 1983, § 1985 and § 1986 claims against Lynch and Graham.

See Opinion, pgs. 4,5. This is a mere conclusory statement that all courts routinely reject from litigants. Additionally, this opinion is blatantly dishonest in that deliberately mischaracterizes Mason’s legal arguments for the nefarious purpose of achieving the desired outcome. See Appellant’s Initial Brief pgs. 26-34, for an accurate characteriztion. In the words of the former United States Senator Robert Dole: “Eleventh Circuit quit distorting my record!”. The apparent holding of this opinion is that a federal judge can acquire a case number and set about making up any kind of sh&&### he wants and still be the beneficiary of absolute immunity.

What Judge Graham Was Sued For

Judge Graham was sued in District Court Case No. 02-14049-CV-KMM, Eleventh Circuit Case No. 02-13418 for orders he issued in Dist. Ct. Case No. 99-14027-CV-Graham, Marcellus Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, et.al. Heartland Library Cooperative and Highlands County Board of County Commissioners are local governments. Judge Graham’s Magistrate, Frank Lynch Jr., issued the following orders or injunctions prohibiting direct communication with the government under the guise of “judicial authority”.

Plaintiff shall be prohibited from contacting any of the Defendants,including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

(DE #201). This order is dated June 19,
2000.

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.

(DE #246).

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case..

(DE #246). See Complaint, Pg. 16, ¶150.

The lawsuit, Case No. 02-14049-CV-KMM, Eleventh Circuit Case No. 02-13418, asserted claims under 42 U.S.C. §§1983,1985,1986 for issuing the above orders in Case No. 99-14027-CV-Graham/Lynch. See Complaint, Pg. 16, ¶150. The legality or illegality of these injunctions are central to the lawsuit. According to the Fifth Circuit, U.S. Court of Appeal, Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) an order that an order enjoined a litigant “from communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, its staff, or TES’s counsel, counsel’s employees, or counsel’s staff” constituted an invalid prior restraint and a unconstitutional limitation on free speech. In this case the order went even further as it attempted prohibit direct communication with the government and to place restrictions how Mason accessed Public Records under Florida Law.

A United States Circuit Judge on the Dangers of Unpublished Opinions

It was Circuit Judge Richard S. Arnold, 8^th Cir. U.S. Court of Appeal who said:

“If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. (I don’t say that judges are actually doing this–only that the temptation exists.) Or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I’m not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.” 1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas - Little Rock School of Law ; Richard S. Arnold.

Judge Arnold, now deceased, cannot be resting comfortably. In Anastasoff. v. United States, 223 F.3d 898 (8th Cir. 2000), Judge Arnold and his panel declared unpublished opinions to be unconstitutional. This opinion was subsequently vacated on other grounds, 235 F.3d 1054 (8th Cir. 2000) by en banc court.

Links To Briefs and Opinions

• Opinion
• Appellant’s Initial Brief
• Appellant’s Reply Brief.
• Judge Graham’s Appellees’ Brief. Prepared by AUSA Kathleen M. Salyer
• Complaint. An html version of the original complaint.
• Trial Court’s Opinion, Report and Recommendation, R&R, Docket # 52, authored by Magistrate John J. O’Sullivan, adopted by the District Court, Docket # 56. The R&R by Judge O’Sullivan is a scathing personal attack on Marcellus Mason that uses six of the seven total pages for that purpose. These six pages have nothing to do with why the lawsuit was filed. At the risk of straying off point, this R&R is a must read for three reasons. Firstly, it is blatantly dishonest because it mischaracterizes the nature of the complaint and is very evasive. Secondly, it points up why judges can not be trusted to police themselves. It relies heavily on clearly void sua sponte issued pre-filing injunction. See Case Law. Is a Magistrate Judge, an inferior judge, that lacks Article III protections going to recommend that a superior District Judge be held liable in a lawsuit?

SHORT CASE SUMMARY

District Court Case No. 02-14049-CV-Moore
This lawsuit was filed against Judge Donald L. Graham and Magistrate Judge Frank Lynch, Jr. and is directly related to another lawsuit, Case No., 99-14027, Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners,et.al. This lawsuit expressly demanded “judgement against Lynch and Graham in the form of injunctive and declaratory relief and any other lawful relief. MASON further demands trial by jury.” See Complaint, Pg. 16, ¶150. This lawsuit asserted claims under 42 U.S.C. §§1983,1985,1986 for issuing the following orders in Case No. 99-14027-CV-Graham/Lynch:

Plaintiff shall be prohibited from contacting any of the Defendants,including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

(DE #201). This order is dated June 19,
2000.

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.

(DE #246).

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case..

(DE #246).

Incidentally, though not the point of this post, the Eleventh Circuit has fought tooth and nail to avoid reviewing these orders for validity on multiple occasions. See this site, post “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“.

District Court Case No. 99-14027-CV-Graham/Lynch

Marcellus M. Mason, Jr. of Sebring, Fl. filed an employment discrimination lawsuit against the Highlands County Board of County Commissioners and Heartland Library Cooperative and other governmental entities and individual government employees in February 1999. The case was originally assigned to then Chief Judge Edward Davis who retired. On February 20, 1999, Judge Davis allowed Mason to proceed in forma pauperis, “IFP”, or to proceed without paying the required filing fee for a lawsuit. Docket Entry No. 3. This case was ultimately assigned to Judge Donald L. Graham and Magistrate Frank Lynch Jr., Case No. 99-14027-CV-Graham/Lynch. After protracted litigation, the case was dismissed pursuant to Fed.R.Civ.P. 41(b), not on the merits of the case, but based upon banned and irrelevant out of court constitutionally protected and legal communications between Highlands County and Mason. See Report and Recommendation, “R&R” (D.E.766), Order adopting R&R (D.E791). See Banned Communications. Judge Graham declined to reach the merits of the case as there were summary judgment motions pending on the day the case was closed. See Docket Sheet, Defendant’s motion for summary judgment, (Doc. 769);(Doc. 770), and the Plaintiff’s motion for summary judgment as well, (Doc. 507); (Doc. 667); (Doc. 668); (Doc. 706); (Doc. 797). More Background.

PREEMINENCE OF FLORIDA SUPREME COURT INTERPRETING FLORIDA LAW

Federal Courts are bound by the highest state court’s interpretation of its laws. The Supreme Court of the United States has said neither it “nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the state.” Johnson v. Fankell (96-292), 520 U.S. 911 (1997). “Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern.” Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

ABSOLUTE IMMUNITY

“As a class, judges have long enjoyed a comparatively sweeping form of immunity, though one not perfectly well defined.” Forrester v. White, 484 U.S. 219, 226 (198 . A long line of Supreme Court “precedents acknowledges that, generally, a judge is immune from a suit for money damages.” Mireles v. Waco, 502 U.S. 9, 10 (1991). “[I]mmunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Id. at Pg. 12. “The proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993).

Judge Graham does not have absolute for two reasons. Firstly, Judge Graham acted in clear violation of all jurisdiction. “But when a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of jurisdiction, judicial immunity is lost. See Bradley v. Fisher, 80 U.S. 13 Wall. 335, 351 (1871)(”when the want of jurisdiction is known to the judge, no excuse is permissible“); Turner v. Raynes, 611 F.2d 92, 95 (5th Cir. 1980) (Stump is consistent with the view that “a clearly inordinate [**13] exercise of unconferred jurisdiction by a judge-one so crass as to estab-lish that he embarked on it either knowingly or recklessly-subjects him to personal liability”).”
Rankin v. Howard, 633 F.2d 844, 849; 1980 U.S. App. LEXIS 11690, *12-13 (9th Cir. 1980).

The acts which formed the basis of the lawsuit were not judicial in nature.

The Acts Were Legislative Not Judicial

Judges have immunity for judicial acts only. “[J]udges do not receive immunity when acting in administrative, legislative, or executive roles.” Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997)(citing Forrester v. White 484 U.S. 219, 229-30). Judges do not have immunity for legislative acts. In Tober v. Sanchez, 417 So.2d 1053, 1055 (Fla. App. Dist. 3 1982) succinctly and aptly stated: “We would be less than candid if we did not acknowledge that, as the present case demonstrates, public agencies are placed at a disadvantage, compared to private persons, when faced with potential litigation claims. It is also pertinent to observe that the wisdom of such a policy resides exclusively within the province of the legislature.” In Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, (1980), the U.S. Supreme Court held that is rulemaking a legislative act where as here Judge Graham propounded a rule which did or does not exist. Judge Graham has stated:

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records. (DE #246). This act is allowed by the First Amendment, the Florida Statutes, and the Florida Constitution. “The right to petition government for redress of grievances — in both judicial and administrative forums — is ‘`among the most precious of the liberties safeguarded by the Bill of Rights.’ Because of its central importance, this right is ‘substantive rather than procedural and therefore cannot be obstructed, regardless of the procedural means applied.’” Graham v. Henderson, 89 F.3d 75 (2nd Cir. 1996) (quoting United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967)). Consequently, Judge Graham has to legislate his act.

According to the Florida Supreme Court, the Florida Public Records Act creates substantive right that only be restricted by the Florida legislature.

“”While Henderson is certainly correct that chapter 119 grants a substantive right to Florida citizens, the legislature also has the prerogative to place reasonable restrictions on that right.“

Henderson v. State, 745 So.2d 319 (Fla. 1999). If the Florida Supreme Court declines to place restrictions on the right of access to Florida’s Public Records, then who in the hell Teflon Don to do so?

Clear Absence of Jurisdiction

Lack of Jurisdiction

Judge Graham lacked jurisdiction because the Defendants, Highlands County Board of County Commissioners lacked standing. The Defendants, a government agency, asked for an “preliminary injunction” not to be communicated with directly. ““Defendants, Highlands County Board of County Commissioners … hereby moves the Court for an Injunction prohibiting the Plaintiff, Marcellus Mason, from contacting directly,’ via correspondence, electronic mail, telephonically, or otherwise, any supervisor or employee of any of the Defendants in the above-styled litigation.”” Docket Entry 199. This is an absurd proposition on its face. The Supreme Court has said that in order “to satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,528 U.S. 167 (2000). The Defendants only claimed injury is:

The tone of Plaintiff’s letters, memorandums, facsimile transmissions, electronic mails, etc., are harassing in nature and are designed to interfere with the legal processes to which Plaintiff has subjected himself through electing to utilize the jurisdiction of this Court.

Judge Graham was without subject matter jurisdiction to restrict, impede, obstruct, or administer the Florida Public Records Act. “Subject matter jurisdiction is the court’s authority to decide the issue in controversy such as a contracts issue, or a civil rights issue. “Where there is clearly no jurisdiction over the subject matter, any authority exercised is a usurped authority, and, for the exercise of such authority when the want of jurisdiction is known to the judge, no excuse is permissible.” Stump v. Sparkman, 435 U.S. 349, 356 n.6 (197 . State courts have general jurisdiction, meaning that they can hear any controversy except those prohibited by state law..” URL: http://topics.law.cornell.edu/wex/Jurisdiction
Along this same line, the Supreme Court in Stump at 435 U. S. 358 looked to the statutes and case law to see if the act in question (sterilization) been expressly prohibited. This is a common sense that a judge should not ble to claim immunity for act that is expressly prohibited by law. Neither, the constitution nor any statute gives a federal court jurisdiction with respect to Florida Public Records. “Courts created by statute only have such jurisdiction as the statute confers.” Christianson v. Colt Industries Operating Corp.,486 U.S. 800, 820 (198 . “The Federal Rules of Civil Procedure do not create federal jurisdiction.” In re Infant Formula Antitrust Litigation, MDL 878 v. Abbott Laboratories, 72 F. 3d 842, 843 (11th Cir. 1995)(citing Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 368-370 & n. 7, 98 S.Ct. 2396, 2400 &n. 7, 57 L.Ed.2d 274 (197 ). See also Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001) (“Lower federal courts can exercise this power only over cases for which there has been a congressional grant of jurisdiction”). In fact the constitution expressly forbids any such notion. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” Tenth Amendment, U.S. Constitution. Apparently, realizing that there is a jurisdictional problem, along with a violation 28 U.S. § 636(b)(1)(a), the Magistrate attempts to invoke jurisdiction by asserting: “and noting that this Court is considering this issue as a pretrial discovery issue and not an injunction issue per se…” Assuming without arguing that may issue an injunction, a district court can not invoke jurisdiction by asserting the Federal Rules Civil Procedure.

Judge Graham’s order necessarily suggests that because Mason filed an employment discrimination lawsuit in federal court, Judge Graham now has the authority to place restrictions how Mason access Florida Public Records. The Florida Supreme Court has heard this argument and rejected it out of hand.

We find no authority to support the argument that Florida Power & Light, by engaging in litigation before a federal forum, has somehow given up its independent statutory rights to review public records under chapter 119. The fact that Florida Power & Light simultaneously engaged in litigation before a federal agency does not in any way prevent its use of chapter 119 to gain access to public documents.

Wait v. Florida Power & Light Co., 372 So.2d 420, 424 (Fla. 1979).

“[W]e do not equate the acquisition of public documents under chapter 119 with the rights of discovery afforded a litigant by judicially-created rules of procedure…” Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla. 1979).

Implicit And Explicit Conclusions of Law

In order for Judge Graham and his Magistrate to have absolute immunity or judicial immunity, each of the following conclusions must necessarily be true.

• The fling of lawsuit in federal court creates a right for the Highlands County Government not to be communicated with directly  by a pro se litigant opposing party. Stately, alternatively, a plaintiff loses his right to communicate directly with the government when he or she sues the government.
• Federal Judges, applying some unknown Federal Rules of Civil Procedure, can obliterate substantive rights guaranteed by a state and the Constitution of the United States.
• Federal Judges may make mere conclusory statements.
• Federal Courts need not say what the Judge is being given immunity for.
• The filing of lawsuit gives a federal judge the right to obstruct the right to petition the government.
• The filing of a lawsuit in federal court is grant of jurisdiction with respect to the Florida Public Records Act, Fla.Stat.,§ 119.01.
• A federal judge may receive absolute immunity for what the State of Florida considers a legislative act.
• Federal Courts are not required to discuss why injunctive and declaratory relief are not warranted even though the remedy is expressly asserted in a complaint.

Judicial Misconduct

Chief Judge J. L. Edmondson has expressly denied that the act of usurping authority in violation of clearly established law is not judicial misconduct pursuant to the Judicial Conduct and Disability Act 28 U.S.C. §351, et.al. See Complaint of Judicial Misconduct Case No. 05-0008.

U.S. Dist. Judge William P. Dimitrouleas Reversed While Colleague Judge Donald L. Graham Affirmed by Killing The Appeal

Justice Turned On Its Head

Judge Donald L. Graham, “Teflon Don”

It is hard not to conclude that Judge Donald L. Graham is more valued than his colleagues at the Southern District of Florida when Judge Graham “teflon don” is affirmed on appeal while his colleagues at the S.D. Fla. are reversed. This is the third of three posting on this site where this has happened. Judge Daniel T. K. Hurley met a similar fate. See posting this site, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge“, ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal“, and “Judge Graham Disagrees With The Fifth Circuit, U.S. Court of Appeals”. In each case the Eleventh Circuit chose to deploy an unpublished opinion to affirm and protect Judge Graham while his colleagues suffered reversals in published opinions. It is difficult to see how such a system advances the notion of equal justice. It would seem that justice is a function not of the “rule of law”, but of whether or not the judge is favored by the appellate courts.

U.S. Dist. Judge William P. Dimitrouleas was reversed on appeal by the Eleventh Circuit for Imposition of Sanctions beyond the litigant’s ability to pay. During the same time period, Judge Dimitrouleas’ colleague, U.S. Dist. Judge Donald L. Graham, “Teflon Don”, awarded $200,000 in attorneys’ fees against an indigent who was proceeding in forma pauperis but was nevertheless affirmed on appeal by the Eleventh Circuit. Judge Graham was affirmed by what can only be described as a very pernicious act in that the Eleventh Circuit affirmed Judge Graham by denying the indigent litigant the right to an appeal the mammoth award of $200,000 in forma pauperis. Moreover, the Eleventh Circuit had to take the following extreme measures to keep from reversing “Teflon Don” in the underlying merits appeal, Case No. 01-13664:

• The Eleventh Circuit, though admittedly briefed, failed to review for validity the very orders that were used by Judge Graham to justify dismissal of the case under Fed.R.Civ.P. 41(b). See Documents Nos. 201 and 246. The Eleventh Circuit was quite willing to discuss violations of these orders, but not their validity. See Post, “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“
• The Eleventh Circuit, though admittedly briefed, failed to review the issue as to whether or not Judge Graham should have disqualified or not. See post,”Are Allegations of Misconduct Reviewable on Appeal?“
• The Eleventh Circuit struck Mason the Appellant/Plaintiff’s brief for arguing an order that it deemed beyond the scope of appeal and then turned around used the very same order to affirm Judge Graham. “Putrid Dishonesty:Beyond the Scope of Appeal”
  

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  The On Law Imposing Sanctions Beyond Litigant’s Ability to Pay

  Attorneys fees awards may not bankrupt a party. “A court should refrain from imposing a monetary award so great that it will bankrupt the offending parties or force them from the future practice of law.” Baker v. Alderman, 158 F.3d 516 (C.A.11 (Fla.), 199 .

  Sanction orders must not involve amounts that are so large that they seem to fly in the face of common sense, given the financial circumstances of the party being sanctioned. What cannot be done must not be ordered to be done. And, sanctions must never be hollow gestures; their bite must be real. For the bite to be real, it has to be a sum that the person might actually pay. A sanction which a party clearly cannot pay does not vindicate the court’s authority because it neither punishes nor deters. MARTIN v. AUTOMOBILI LAMBORGHINI EXCLUSIVE, INC., 307 F.3d 1332 (11th Cir. 2002).

  Judge Dimitrouleas

  In Martin v. AUTOMOBILI LAMBORGHINI EXCLUSIVE, INC., Judge Dimitrouleas had his decision to award sanctions against litigants vacated because it was beyond the litigants ability to pay. The court advised that “when exercising its discretion to sanction under its inherent power, a court must take into consideration the financial circumstances of the party being sanctioned.“

  Judge Graham Affirmed For An Even More Egregious Violation

  This post will only address the narrow legal point that attorney’s fees can not be awarded if they bankrupt the Plaintiff or the Plaintiff has no ability to pay. The underlying merits of the lawsuit is fully discussed at the Attorneys’ Fees Webpage. The only legal point being raised here is that the district court can not make such a grotesque award even if a Plaintiff’s lawsuit was totally frivolous, which this clearly was not the case, given the financial insolvency of Mason. Judge Graham knew that Mason was proceeding as an indigent having been awarded in forma pauperis status, “IFP” to initiate the lawsuit. See Docket Entry No. 3. Moreover, it was Judge Graham and his Magistrate, Frank Lynch Jr., who said: “it does not appear as though the Plaintiff has any financial ability to pay any attorney’s fees which may be assessed against him in this case.” Docket Entry No. 882, pgs. 6-7.
  Even more egregious, this award based upon a “bad faith finding” in a sua sponte issued pre-filing injunction. It is well settled that a “bad find” finding and pre-fling injunctin both require due process or notice and opportunity to respond prior to its according to both the United States Supreme Court and the Eleventh Circuit, U.S. Court of Appeal. However, Judge Graham has defied both of these courts as it refused to give Mason any notice, see this site’s post “Florida Judge Thumbs His Nose at U.S. Supreme Court Rulings on Due Process And Attorneys’ Fees” and “Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts“.

  Eleventh Circuit Sticks In The Knife

  Making this massive award even more pernicious, Judge Charles R. Wilson, Eleventh Circuit, U.S. Court of Appeal ruled that it was “frivolous”, without stating why, to appeal this massive award. See this site, post entitled “Judge Wilson Rules Appeal Of Award $200,000 Fees Frivolous“. On October 17, 2002, while denying a motion for clarification, the Eleventh Circuit, for the second time, asserted that it was frivolous to file an appeal of a $200,000 award in attorney’s fees. See Order dtd Oct. 17, 2002. The bottom line is that Mason never got a chance to fight of this judgment.

Judge Graham Disdains Law, Denies Prevailing Indigent $92.60 In Costs Yet Awards $200,000 In Attorneys’ Fees Against Same Indigent!

Justice Turned On Its Head

Judge Donald L. Graham, The “Teflon Don“

Point of This Post

This post will demonstrate yet another instance of where U.S. Dist. Judge Donald L. Graham, “Teflon Don” has demonstrated a reckless and blatant disregard for well established law and binding precedent with apparent impunity. Specifically, Judge Graham was required by law to either award costs of $94.62 to Mason , the prevailing defendant in a lawsuit, Case No. 00-14240, or state a legally sufficient reason for not awarding costs. Judge Graham defiantly chose neither and simply denied the costs without stating a reason. Even more egregious and mean-spirited, Judge Graham later awarded 200,000 in attorneys’ fees against the same indigent, Marcellus Mason, in complete disregard for the law. Teflon Don has an amazing pattern and practice of disregarding the edicts of appellate courts. See this site posts, “Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts” and “Florida Judge Thumbs His Nose at U.S. Supreme Court Rulings on Due Process And Attorneys’ Fees“. Judge Graham, without a doubt, is in fact the “Teflon Don“. Lastly, such conduct as described here and elsewhere has been deemed not to be judicial misconduct by Chief Judge J. L. Edmondson, United States Court of Appeals, Eleventh Circuit.

Pertinent Case Background

On Aug 7, 2000, Highlands County Board of County Commissioners and Heartland Library Cooperative filed a lawsuit against Marcellus Mason seeking injunctive relief or “equitable action to permanently enjoin the Defendant from filing or maintaining any civil action against any of the named Plaintiffs without the representation of any attorney authorized to practice before this Court.” See Report and Recommendation, “R&R”, (D.E. 27). On January 16, 2001, the Magistrate, Frank Lynch Jr., issued his R&R which recommended that the Plaintiff’s lawsuit be dismissed and stated:

While there are other pending cases between these parties, there is nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look to for justifying injunctive relief.

See R&R, pg. 3. Judge Graham accepted this R&R in its entirety and dismissed the case on February 13, 2001. See Docket Entry No. 33. The Plaintiffs, Highlands County Board of County Commissioners, in this matter took nothing from this lawsuit for it failed in its only claim for injunctive relief.

The Law On Awarding Costs

According to the Eleventh Circuit, U.S. Court of Appeals, whom Teflon Don is legally bound to follow:

“Rule 54(d) of the Federal Rules of Civil Procedure provides that “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” Fed.R.Civ.P. 54(d). This Court has held that “where the trial court denies the prevailing party its costs, the court must give a reason for its denial of costs so that the appellate court may have some basis upon which to determine if the trial court acted within its discretionary power.” Gilchrist v. Bolger, 733 F.2d 1551, 1557 (11th Cir.1984) (citation omitted) (emphasis added). Thus, although the district court has discretion to deny a prevailing party costs, such discretion is not unfettered.” Head v. Medford, 62 F.3d 351 (11th Cir. 1995). In Head (citing Gilchrist v. Bolger, 733 F.2d 1551,1557) the court expressly stated that “the district court did not determine whether defendants were prevailing parties and gave no reason for denying defendants’ bill of costs. This was an abuse of the court’s discretion.” Similarly in GILCHRIST v. BOLGER, 733 F.2d 1551(11th Cir. 1984), the Eleventh Circuit has held:

“The rule in this circuit is that where the trial court denies the prevailing party its costs, the court must give a reason for its denial of costs so that the appellate court may have some basis upon which to determine if the trial court acted within its discretionary power(internal citations omitted)” “Baez v. United States Dept. of Justice, 684 F.2d 999, 1004 (D.C.Cir.1982) (en banc) (”Every circuit that has considered the question (ten out of twelve) has not only recognized the presumption [that prevailing parties will obtain costs], but has held that a court may neither deny nor reduce a prevailing party’s request for costs without first articulating some good reason for doing so.”).

The US Supreme Court on Costs

“Under Rule 54(d), the “prevailing party” automatically is entitled to costs “unless the court otherwise directs.” Indeed, the Rule contemplates that applications for costs will be presented in the first instance not to the court but to the clerk; a district judge need not take up the issue at all unless the losing party makes a timely motion for judicial review.”  BUCHANAN v. STANSHIPS, INC., 485 U.S. 265 (198 .

Goddamn It Because I Said So

Teflon Don shows that he doesn’t give a damn about legally binding precedent. On January 23, 2001, Mason filed a Defendant’s Motion For Taxation of Costs seeking to recover the costs of defending a lawsuit in Case No. 00-14240.

On February 13, 2001, Judge Graham denied the motion while stating only the following:

THIS CAUSE is before the Court upon Defendant’s Motion for Taxation of Costs (D.E. #30). THE COURT having considered the Motion, the perinent portions of the record and being otherwise fully advised, it is ORDERED AN ADJUDGED that Defendant’s Motion for Taxation of Costs is DENIED.

There is no question that Judge Graham knew the law with respect to the award of costs because in awarding $200,000 in attorney’s fees to Highlands County Judge Graham and his Magistrate cited Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000). See Docket No. 882, pg. 6(“This Court believes that it is a factor which the District Court may, but need not, consider in its award. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000)”). In Chapman, the Eleventh Circuit, Judge Graham’s supervisors stated:

However, the district court’s discretion not to award the full amount of costs incurred by the prevailing party is not unfettered,(internal marks and citation omitted)”since denial of costs is in the nature of a penalty for some defection on [the prevailing party's] part in the course of the litigation.” To defeat the presumption and deny full costs, a district court must have and state a sound basis for doing so.

See Docket Entry No. 35.

Appellate Review Was Not An Option

Mason did not file an appeal of this denial for two reasons:

• Judge Graham denied a motion to proceed on appeal without paying the appeal docketing fee, or in forma pauperis, “IFP”. See Docket No. 43.
• An appeal would have been futile. The Eleventh Circuit had already indicated its unwillingness to reverse Judge Graham on a previous appeal even where the law clearly favored Mason. Consequently, any appeal would have been futile as the Eleventh Circuit would have followed its usual pattern and deployed an “unpublished opinion” and affirmed Judge Graham. For proof of this very serious allegation, see this site, post entitled “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge“.

Judge Graham Says No To An Appeal of $94.62 Costs Denial

Judge Graham denied Mason the opportunity for appellate review by denying Mason’s in forma pauperis motion for a reason not supported by the United States Supreme Court in “Denton v. Hernandez, 504 U.S. 25, 27 (1992);” and “Neitzke v. Williams, 490 U.S. 319, 324 (1989)” which states that …1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.“ See See Docket No. 43.

Meanspirited And Vindictive

In addition to Judge Graham’s pattern and practice of disrespecting the rule of law and binding precedent, Teflon Don can be mean-spirited and vindictive as well. Judge Graham was quite adamant about not awarding Mason chicken change in court costs ($94.62) against these same heavily insured Defendants, Highlands County Board of County Commissioners, but had absolutely no problem awarding these people $200,000 in legal feels against Mason in Case No. 99-14027. The Defendants did not prevail on any issue as that lawsuit was dismissed because of alleged out of communications between Mason and Highlands County. For an incredible story, see Attorneys’ Fees Webpage for more information. This post will only address the narrow legal point that attorney’s fees can not be awarded if they bankrupt the Plaintiff or the Plaintiff has no ability to pay. The underlying merits of the lawsuit is fully discussed at the Attorneys’ Fees Webpage. The only legal point being raised here is that the district court can not make such a grotesque award even if a Plaintiff’s lawsuit was totally frivolous, which this clearly was not the case, given the financial insolvency of Mason. Judge Graham knew that Mason was proceeding as an indigent having been awarded in forma pauperis status, “IFP” to initiate the lawsuit. See Docket Entry No. 3. Moreover, it was Judge Graham and his Magistrate, Frank Lynch Jr., who said: “it does not appear as though the Plaintiff has any financial ability to pay any attorney’s fees which may be assessed against him in this case.” Docket Entry No. 882, pgs. 6-7.

Attorneys fees awards may not bankrupt a party. “A court should refrain from imposing a monetary award so great that it will bankrupt the offending parties or force them from the future practice of law.” Baker v. Alderman, 158 F.3d 516 (C.A.11 (Fla.), 199 .

Sanction orders must not involve amounts that are so large that they seem to fly in the face of common sense, given the financial circumstances of the party being sanctioned. What cannot be done must not be ordered to be done. And, sanctions must never be hollow gestures; their bite must be real. For the bite to be real, it has to be a sum that the person might actually pay. A sanction which a party clearly cannot pay does not vindicate the court’s authority because it neither punishes nor deters. MARTIN v. AUTOMOBILI LAMBORGHINI EXCLUSIVE, INC., 307 F.3d 1332 (11th Cir. 2002).

Eleventh Circuit Sticks In The Knife

Making this massive award even more pernicious, Judge Charles R. Wilson, Eleventh Circuit, U.S. Court of Appeal ruled that it was “frivolous”, without stating why, to appeal this massive award. See this site, post entitled “Judge Wilson Rules Appeal Of Award $200,000 Fees Frivolous“. On October 17, 2002, while denying a motion for clarification, the Eleventh Circuit, for the second time, asserted that it was frivolous to file an appeal of a $200,000 award in attorney’s fees. See Order dtd Oct. 17, 2002.

Judicial Misconduct

A feature of this blog is describing conduct that Chief Judge J.L. Edmondson, Eleventh Circuit, and others, do not consider to be judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. §§ 351-364. This posting will demonstrate that federal judges can intentionally disregard well established law and binding precedent with near absolute impunity. Chief Judge J.L. Edmondson, and others, asserts that such acts, even if true, do not constitute judicial misconduct. Moreover, according Judge J.L. Edmondson interpretation of the law, even if Judge Graham were involved in a pattern and practice of total disregard for clearly establish law and binding precedent such behavior would still not rise to the level of judicial misconduct. See Complaint of Judicial Misconduct No. 05-0021. For More Support, Complaint Nos. 05-0008, 05-0012, 05-0013, 05-0020, 05-0021. Switching vernacular for the moment, according to Judge Edmondson there aint no judicial misconduct.

Judge Edmondson seems to disagree with his own Judicial Conference who has clearly stated that a pattern and practice intentionally disregarding clearly establish law could be misconduct.

[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.

http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf :Pg. 8.

Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham

Justice Turned On Its Head

Judge Donald L. Graham, The “Teflon Don”

Point of This Post

The U.S. Supreme Court once said: “But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” Hutto v. Davis, 454 U.S. 370 (1982). This post is a yet another perfect example of how the “unpublished” Opinion is used to defy the authority of the United States Supreme Court. What is clear from this post is that if the Eleventh Circuit, U.S. Court Of Appeal, does not like the facts or the law involved in a case, it will simply make a terse one sentence “opinion” ignoring both the facts and the law. “The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See “Opinion“, Case No. 01-15754. In this matter, Case No. 01-15754, the Eleventh Circuit declined to honor a petition for mandamus as a notice of appeal and perform meaningful appellate review as required by the U.S. Supreme Court. The petition attacks a sua sponte issued pre-filing injunction that was rendered on September 20, 2001 and excoriates Judge Graham for his misconduct and mismanagement. It is no wonder that Judge Graham feels that he is above the law and that he is the “Teflon Don”.

In addition, on a parallel track, a direct appeal, Case No. 01-13664, is already pending when Judge Graham renders the sua sponte issued pre-filing injunction of September 20, 2001. The handling of this matter yields even more dishonest and evasive measures.

• The Eleventh Circuit struck Mason’s appellate brief for arguing against the sua sponte issued pre-filing injunction of September 20, 2001 because they claimed it was “beyond the scope of appeal”. However, when the Eleventh Circuit rendered its opinion affirming Judge Graham it then used the same sua sponte issued pre-filing injunction to affirm Judge Graham. See full story of this despicable act at this site, post entitled, “Putrid Dishonesty:Beyond the Scope of Appeal“
• The Eleventh Circuit refused to test the allegations of misconduct leveled at Judge Graham for veracity, even though admittedly fully briefed, it declines to review the issue of whether or not Judge Graham abused his discretion by failing to disqualify. See full story, this site, post entitled, “Are Allegations of Misconduct Reviewable on Appeal?“

The Eleventh Circuit had to make a choice. It could save Judge Graham from his record, or it could follow binding precedent as set forth by the United States Supreme Court. It chose to save Judge Graham from the consequences of his own misbehavior and hubris. Is the Eleventh Circuit free to ignore the edicts of the United States Supreme Court?

A US Circuit Judge On the Potential Dangers of Unpublished Opinions

“If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. (I don’t say that judges are actually doing this–only that the temptation exists.) Or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I’m not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.” 1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas - Little Rock School of Law ; Richard S. Arnold

United States Supreme Court

“A document intended to serve as an appellate brief may qualify as the notice of appeal required by Rule 3. So long as such a document is filed within the time allowed by Rule 4 for a notice of appeal and satisfies Rule 3(c)’s requirements as to the content of such a notice, it may be treated as the “functional equivalent” of the formal notice demanded by Rule 3.” SMITH v. BARRY ET AL. 502 U.S. 244 (1992) (Syllabus). See also Eleventh Circuit’s Finch v. Vernon, 845 F. 2d 256, 259-260 (11th Cir. 198 (citing United States v. Rogers, 788 F.2d 1472, 1475 (11th Cir.1986) (notice of appeal requirement is satisfied by any statement clearly evincing the party’s intent to appeal); Yates v. Mobile County Personnel Board, 658 F.2d 298, 299 (5th Cir. Unit B Oct. 1981) (”A petition for mandamus filed in this court, however, may also satisfy the notice of appeal requirement, especially when the appellant is proceeding pro se … and is thus generally ignorant of procedural rules.”).”).

The Eleventh Circuit received a mandamus petition that was docketed as being received on October 2, 2001. See Receipt. This is a 25 page petition plus exhibits. Microsoft Word Format, html format, and pdf format. According to the Supreme Court and the Eleventh Circuit’s own binding precedents, this mandamus petition should have been treated as a notice of appeal. The Defendant, Highlands County Board of County Commissioners, and U.S. Dist. Judge Donald L. Graham also received a copy of the mandamus petiton. Judge Graham did not file a brief in opposition to the petition. The Defendant did not file a responsive brief to the petition. The Eleventh Circuit did not require anyone to respond the petition.

Basis of Mandamus or Appeal

On September 20, 2001, Judge Graham rendered a pre-filing injunction, sua sponte, against Marcellus Mason. See Document No. 878. This type of order is also referred to as “Vexatious Litigant injunction“, “pre-screening injunction”, and “leave to file injunction”. This order specifically states: “THIS CAUSE came before the Court sua sponte.” See Document No. 878, pg. 3. There is a string of U.S. appellate courts and state courts, including Florida and Georgia that have declared sua sponte issued pre-filing injunctions issued without notice and opportunity to respond to be invalid. See Case Law On Pre-Filing Injunctions Section, Judge Graham Disagrees With The 1st, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, And DC Circuit Courts Of Appeal.

A mandamus petition was docketed as being received on October 2, 2001 by the Eleventh Circuit. See Receipt. This petition attacks the sua sponte issued pre-filing injunction of September 20, 2001. This petition also excoriates Judge Graham and takes him to task for the following:

• Graham has usurped the power of law enforcement.
• Graham has usurped the power of the “Legislature.”
• Graham improperly interjected himself into matters under the Florida Public Records Act.
• Grant has allowed significant and material pretrial motions to languish in the Court without making a decision. Petitioner will show that Graham has allowed motions and appeals to go for months without being addressed. Petitioner will show that Graham has granted summary judgments without addressing filings by this Petitioner, which attacks the summary judgment. Graham has repeated refused to rule on the Petitioner’s Motions For Summary Judgment.
• Graham has had Petitioner’s Motion for a Preliminary Injunction to languish in his Court and die on the vine without a ruling on the merits, despite the fact that the motion has been pending since November 24, 1999.
• Graham has failed to conduct proper “de novo” reviews when required. Graham has effectively undermined the will of Congress by allowing a Magistrate Judge to decide dispositive matters without the express authorization of all the parties. The Magistrate Judge has been granted “de facto” dispositive authority by Graham.
• Graham has been dishonest in claiming that matters have been litigated when they have not been litigated.
• On numerous occasions, Graham has exercised judicial authority without explaining the law and the facts that underlie his decisions. In this respect Graham has made a host of arbitrary and capricious decisions.
• Graham has been guilty of gross mismanagement and malfeasance in every case to which this Petitioner has been a party to.

See Petition For Mandamus, pgs. 3,8-12,18-23.

Is The Eleventh Circuit An Advocate for Judge Graham?

In reply to the 25 page petition on December 5, 2001, the Eleventh Circuit rendered the following “Opinion”:

“The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See “Opinion“, Case No. 01-15754.

Mason filed a motion for clarification seeking to know the basis upon which the decision was made or what the opinion stood for, however the Eleventh Circuit declined to discuss the matter.

Rehearing Denied

On January 25, 2002, the Eleventh Circuit denied a motion for clarification:

Petitioner’s “motion for reconsideration and clarification” of this Court’s December 5, 2001, Order, is DENIED as Petitioner has offered no reason sufficient to warrant either reconsideration or clarification of this Court’s Order.

Rehearing Denied

Personal Responsibility and Integrity of the Judges

On February 6, 2004, Judge Stanley Marcus, Judge Rosemary Barkett, and Judge Susan Black were sent a letter via U.S. certified mail informing them of the legal atrocities in this matter. See Letter. However, all declined to answer or take the appropriate legal action as required by the United States Supreme Court.

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