Eleventh Circuit Repeatedly Refuses To Review Orders For Validity

Justice Turned On Its Head

Judge Donald L. Graham

PURPOSE OF THIS PAGE

WHAT DO YOU DO WHEN AN APPELLATE COURT REFUSES
TO REVIEW AN ORDER FOR VALIDITY?

The purpose of this page is to set forth documentation to prove that the Eleventh Circuit will take extreme measures to avoid appellate review of orders or injunctions rendered by U.S. Dist. Judge Donald L. Graham and his Magistrate, Frank Lynch, Jr. The unpublished Opinion is deployed to attain the desired result. One of the most offensive acts of dishonesty is that the Eleventh Circuit, in Case No. 01-13664, was quite willing to use the two orders in question against Marcellus Mason while simultaneously refusing to test these orders for validity.

The Eleventh Circuit has refused to review these orders for validity in every conceivable avenue of appellate review. This is part of an overall pattern to conceal the egregious and possible criminal behavior of U.S. Dist. Judge Donald L. Graham. See Core Allegations of Misconduct Page.

A US Circuit Judge On the Potential Dangers of Unpublished Opinions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for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser.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law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug.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 UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas – Little Rock School of Law ; Richard S. Arnold

First Amendment

The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

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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.

On September 20, 2001, Judge Graham affirmed his “inherent authority” to prohibit direct communication with the government by a non-lawyer and stated: “including continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants’ employees. Mason, however, ignored the Court’s order and continued to contact the Defendants.” Docket No. 878. Imagine that, a citizen communicating with the government!

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ELEVENTH CIRCUIT REFUSES APPELLATE REVIEW

The following orders, [D.C. Case No. 99-14027-CV-Graham, Doc. (201), Doc. (246)rendered by a Magistrate, are not valid and are violative of the First Amendment, Tenth Amendment, 28 U.S.C. § 636 (b)(1)(A), and fails to meet the legal requirements for a preliminary injunction:

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).
This order is dated July 25, 2000. These orders amount to what is considered the first prior restraint on pure speech in over 200 years and they were issued by a Magistrate Judge when the U.S. Supreme Court has declined to do so. These orders clearly implicate the “Petition Clause” or right to “petition the government for a redress of grievances” of the First Amendment.

Eleventh Circuit Uses Concocted Procedural Arguments to Avoid Appellate Review

The Eleventh Circuit has had a multiplicity of opportunities to review these orders, but has declined to do so. These orders were reviewable under collateral order doctrine and could have been appealed prior to entry of final judgment because these orders resolved issues independent and easily separable from other claims in the prior pending lawsuit. Ortho Pharmaceutical Corp. v. Sona Distributors, 847 F.2d 1512, 1515 (11^thCir. 1988). Following is a list of opportunities, the Eleventh Circuit has to review these orders:

1. 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.
2. Case No 01-15754 Among other things, The Eleventh Circuit, Judge Susan H. Black, Judge Rosemary Barkett, and Judge Stanley Marcus. The Eleventh Circuit, again refuses to address this issue. In fact, the entirety of the opinion is: The Eleventh Circuit “petition for writ of mandamus and petition for writ of prohibition” is DENIED.”
3. Case No. 02-13418. This lawsuit was filed against Judge Graham and his Magistrate, Judge Frank Lynch, Jr., for issuing these orders. In an opinion rendered on Dec. 6, 2002, The Eleventh Circuit, Judge Ed Carnes,Charles R. Wilson, and Phyllis A. Kravitch, again declined to discuss the validity of these orders while asserting in a mere conclusory fashion that the Judges have absolute immunity. In reading the opinion, one can not determine what the judges are immune from.
4. Case No. 01-13664. Mason filed a Appellant’s Renewed Motion For Summary Reversal on or about September 25, 2002. Yet again The Eleventh Circuit refuses to discuss the validity of these orders.
5. Case No. 01-11305. On April 26, 2001, the Eleventh Circuit, Judge Ed Carnes, yet again refused to review the validity of theses orders.“With regard to his requests for relief from the order granting the defendants’ motions for preliminary injunction, which the court construed as preliminary discovery motion, Mason has alternative remedy. He may either comply with the district’s courts discovery order and challenge it on appeal from the final judgment, or refuse to comply with the order and challenge its validity if cited for contempt”. See Mandamus Petition. Was Mason supposed to wait until the end of trial to get his First Amendment rights back? The Eleventh Circuit has answered this question with a resounding no. “[I]t is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” KH Outdoor, LLC v. Trussville, 458 F.3d 1261, 1271-1272 (11th. Cir. 2006); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). The Eleventh Circuit declined to review these orders via interlocutory appeal because they were characterized as “discovery orders” by the district court”. However, it is well established that an appellate court is not bound by a district court’s characterization of its own orders with respect to appellate jurisdiction. United States v. Hylton, 710 F.2d 1106 (5th Cir. 1983). United States v. Jorn, 400 U.S. 470 (1971).

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Judge Graham and Magistrate Refuse to Cite Legal Authority

Judge Graham and his Magistrate have had multiple opportunities to cite legal authority for these orders prohibiting direct communication with the government, but have adamantly refused to do so. It is as if Judge Graham is saying, “You will not communicate with the government directly because I said so, the law and the constitution notwithstanding.” Marcellus Mason submitted several motions asking Judge Graham and his Magistrate where they got the legal authority to issue the above orders, and each time Judge Graham his Magistrate refused.

Docket No. 279	Docket No. 281	Docket No. 407
Docket No. 524	Docket No. 528	Docket No. 634
Docket No. 744	Docket No. 745	Docket No.874 Pg. 2
Docket No. 882	Docket No. 890	Docket No. 928
Docket No. 931

The following is representative of Judge Frank Lynch Jr. and Judge Graham’s responses.

ORDER ON PLAINTIFFS MOTION FOR CLARIFICATION (DE #262)
THIS CAUSE haying come on to be heard upon the aforementioned Motion, and this court having reviewed the Motion and the response, and being otherwise advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion for Clarification is DENIED, it is further ORDERED AND ADJUDGED that Plaintiff shall comply with the terms and provisions of this Court’s Order, filed July 25, 2000, and any violations of the order will result in the imposition of sanctions or dismissal with prejudice as to all plaintiffs claims.

Docket No. 281

The only explanation Mason has received thus far is the negative cite below: If the Plaintiff was represented, his attorney would know that this is proper procedure. .

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BANNED OUT OF COURT DIRECT GOVERNMENT COMMUNICATIONS

During the week of February 5, 2001, Plaintiff knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. Plaintiff appeared at the office of Fred Carino, Human Resource Director of Highlands County and a supervisory employee of a named defendant in this action, and demanded to view his personnel file. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel.

D.E. 511, ¶6, PG.3)




On February 13, 2001, Plaintiff appeared at Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation.

D.E. 511, ¶7, PG.3)




On February 14, 2001, Plaintiff returned to Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation. This request was made directly to Mr. Canno’s office and not through Defendant Highlands County ’s counsel.

D.E. 511, ¶8, PG.4)




After reviewing the, records, Mr. Mason penned a note to Mr. Carino stating that he wanted unredacted portions of billing records and if he did not get them he will file a lawsuit by February 16, 2001

D.E. 511, ¶9, PG.4)




Mr. Mason returned to Mr. Carino’s office a second time on February 14, 2001 and knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. He demanded to view Defendant Highlands County ’s Insurance Document of Coverage, a document that had previously been produced to him. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel. Notwithstanding, the document was produced to him.

D.E. 511, ¶10, PG.4)




During this visit, Plaintiff became loud, aggressive, disruptive, and questioned the need for Mr. Carino’s presence during his review of the document.

D.E. 511, ¶11, PG.4)




Plaintiffs conduct in violation of this Court’s Orders of June 19, 2000 and July 25, 2000 require a dismissal with prejudice of all of plaintiff’s claims in the above-referenced matter.

D.E. 511, ¶15, PG.5)




Since April 3, 2001 – subsequent to the Court’s March 27th Order – Plaintiff has repeatedly personally contacted supervisory employees and/or the individual Defendants about matters related to this case. Specifically, Plaintiff sent e-mail communications directly to supervisory employees of the Defendants, which discussed the “no trespass warnings” that were issued against Plaintiff, Plaintiffs tortious interference claim, as well as Allen, Norton & Blue’s “track record” of litigating appeals (including Eleventh Circuit appeals). (Exhibit 1).




(D.E. 646, ¶10, PG.3)




Clearly, Plaintiffs “no trespass” and tortious interference claims were an integral part of Plaintiffs present litigation, and involve the same set of facts that Plaintiff continues to rely on in pursuing his present claims. Indeed, Plaintiff’s Fourth Amended Complaint alleged several causes of action based on the issuance of the “no trespass” warnings against Plaintiff. Although Plaintiff’s “no trespass” claims were ultimately dismissed by the Court (D.E.’s #435; 466), Plaintiff has recently indicated his intent to appeal the Court’s dismissal of all claims in his Fourth Amended Complaint. (Exhibit 2). Consequently, the issuance of the “no trespass” warnings against Plaintiff are still part of this present litigation.

(D.E. 646, ¶11, PG.4)




In addition, Plaintiff’s communications regarding Defendants’ counsel’s Eleventh Circuit “track record” clearly have no relevance to his state court claim(s), and pertain only to his federal litigation.

(D.E. 646, ¶12, PG.4)







All of Plaintiff’s claims arise from the same set of facts and are all related, and he should simply not be allowed to continuously disregard Orders of this Court and blatantly challenge the Court’s authority.

(D.E. 646, ¶13, PG.4)




Plaintiff has demonstrated a blatant disregard and disdain for this Court’s authority, as evidenced by Plaintiff’s statement that “ANYBODY, who supports your position. . . is a racist and is part of the problem. I fear no man!!! This includes white men wearing robes” and “I aint afraid of a white men wearing robes of any color.” (Exhibit 1, e-mails dated 4/03/01 at 10:57 a.m. and 4/06/01 at 8:33 a.m. respectively)

(D.E. 646, ¶14, PG.4)

Tags: 28 U.S.C. § 636 (b)(1)(A), absolute immunity, allegations of misconduct, Appellate Review, Brian Koji, Charles R. Wilson, clearly erroneous, collateral order doctrine, concoct, contempt, contrary to law, discovery order, discovery orders, dishonesty, enjoined, Federal Magistrate, first amendment, FL, florida public records, Frank Lynch Jr., Highlands County Board of County Commissioners, inherent authority, injunction, interlocutory appeal, irreparable injury, Jr., Judge Donald L. Graham, Judge Ed Carnes, Judge Rosemary Barkett, Judge Stanley F. Birch, Judge Stanley Marcus, Judge Susan H. Black, Judicial Misconduct and Disability Act, jurisdiction, legal requirements for a preliminary injunction, Magistrate's Act, mandamus petition, Maria Sorolis, MOTION FOR CLARIFICATION, petition clause, petition the government, Phyllis A. Kravitch, preliminary discovery motion, prior restraint, procedural arguments, prohibited, prohibiting direct communication, pure speech, refuses to review, review, right to petition, sanctions, Sebring, Susan H. Black, tenth amendment, validity