Eleventh Circuit Case No. 01-13664: The Appeal From Hell

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”

Introduction

The Eleventh Circuit, U.S. Court of Appeal, Case No. 01-13664-A, is the epitome of what is wrong with the Federal Judiciary. Case No. 01-13664-A is a direct appeal that produced an unpublished opinion. The panel that sat for this appeal included: Judge Stanley F. Birch, Jr., Judge Stanley Marcus, and Judge Susan Black. The clear objective of this appeal was to affirm U.S. District Judge Donald L. Graham,”Teflon Don”, by any means necessary. The “rule of law” became a casualty in the Eleventh Circuit’s effort to reach the desired outcome. The Eleventh Circuit exploited the perfect scam, an unpublished opinion, to achieve the desired outcome. It is difficult to imagine a more dishonest act. If the Eleventh Circuit had the values and moral presence of the U.S. Army, there would be mass court-martials and relief of commands. The opinion in this matter is insulting and offensive. It is arrogant in that it implicitly states that we, federal judges, are omnipotent and can do anything we damn well please with impunity.

Purpose of this Post

This post has many purposes and these purposes include, but are not limited to the following:

  • To provide data to support the outlawing of unpublished opinions.
  • To expose judicial corruption, artifice, and misconduct.
  • To provide the disinfectant of sunlight into the judicial process.
  • To provide real life examples of why “Judicial Independence” as it presently exists is woefully lacking in accountability.
  • To seek public sanctions of culpable Judges and staff.
  • It is hoped that those who have influence will take some measure either formally or informally to see that this matter is remedied, and further, to take action to prevent this kind of rogue jurisprudence.
  • To provide the impetus for a Congressional investigation to determine whether litigants rights under the law are being respected and especially with “mere” pro se litigants.

Basis of The Appeal

The Background of this case is more fully set forth below. See Background. There were several issues involved in the appeal. However, the primary basis of the appeal was two preliminary injunctions that were issued by a Federal Magistrate Judge, Frank Lynch, Jr.  These orders will be referred to as the “preliminary injunctions”.  The Eleventh Circuit admitted:  “The 25 July and 15 August orders are central to this appeal, and will be referred to as ‘the Orders.'”  See Opinion, pg. 4, n.2. These orders were granted on June 19, 2000 and July 25, 2000 in part stated:

“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. Incidentally, at least three courts have found similar injunctions to be unconstitutional. see Lewis v. S. S. Baune, 534 F.2d 1115 (5th Cir. 1976)(reversing an order which prohibited appellant from “discussing, directly or indirectly, settlement . . . with the plaintiffs” and from “contacting, communicating, or in any way interfering with the attorney-client relationship” as “too sweeping a restraint”); Bernard v. Gulf-Oil Co., 619 F.2d 459, 466 (5th Cir. 1980) (en banc), aff’d, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981),( explicitly held that requiring the litigant to meet the Court’s “post-communication filing requirements” of constitutionally protected communication was unconstitutional.). Additionally, in Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) the court held that an order which 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.

Alleged Violations of Preliminary Injunctions-Out of Court Communications

The Eleventh Circuit used alleged violations of the preliminary injunctions to uphold or affirm Judge Graham’s decision to dismiss the case.  See Opinion, pps. 4,5.   A sample of the constitutionally protected out of communications that the opinion or the Eleventh Circuit alleges violated the preliminary injunctions are:

  • They claimed that, during the week of 5 February 2001, Mason had demanded to view his personnel file from Highlands County’s Human Resource Director Fred Carino, a named defendant in the case. See Opinion, pg. 4.
  • Mason also appeared at Carino’s office and demanded to view the billing records for Highlands County’s attorney and Highlands County’s liability insurance documents. See Opinion, pps. 4,5.
  • They asserted that Mason made these requests of Carino without first requesting the documents from their counsel in compliance with the magistrate judge’s order and became aggressive, disruptive, and threatening with Carino. See Opinion, pg. 5.
  • They indicated that they had produced the documents for Mason, and attached a copy of a letter from Carino to Mason reminding Mason that he was to correspond only with their counsel. See Opinion, pg. 5.
  • They attached a copy of an e-mail apparently sent by Mason in which he explained that he would file a criminal complaint against Carino if he was denied any requested documents and expressed his belief that the county had “waived” its rights under the Orders as a result of Carino’s conversations with Mason and letter. See Opinion, pg. 5.

More of these out of court communications are listed below under the “Banned Communications” heading.

How the this Post Is Organized

The amount of judicial dishonesty and artifice involved in this appeal is massive.  The author recommends just reading the material first and then clicking on the links for proof of any allegation if there is any doubt. Firstly, this post documents the attacks launched by the Eleventh Circuit to stop the appeal from being filed and perfected. Secondly, the issues raised by the Appellant, Marcellus Mason, are enumerated and documents how the Eleventh Circuit and the Appellees handled these issues. Thirdly, a small section on a motion for rehearing is included to prove that the Eleventh Circuit intentionally ignored issues in order to achieve the predetermined outcome. Lastly, background information and links to other material is provided.  Specifically, the desired outcome was achieved by implementing the following despicable and dishonest acts:

  • The Eleventh Circuit went beyond the scope of appeal.  The Eleventh Circuit accomplished the logically impossible by using an order rendered on September 20, 2001 to justify the dismissal of case that was closed or dismissed on June 20, 2001.  See Eleventh Circuit Uses Invalid Pre-Filing Injunction. Compounding this dishonesty, the Eleventh Circuit struck Mason’s brief for arguing this order because they claimed it was beyond the scope of appeal while simultaneously using this same order to affirm Judge Graham and reach the desired result.  See Beyond the Scope of Appeal Chicanery.
  • The Eleventh Circuit disregarded several prior appellate binding decisions with respect to the requirements for a dismissal under Fed.R.Civ.P. 41(b).  See Fed.R.Civ.P. 41 Dismissal Standard Failure.
  • The Eleventh Circuit refused to publish this case or release it to the Internet. See Eleventh Circuit Denies Publication Request.

A United States Circuit Judge on the Potential Dangers of Unpublished Opinions

It was U.S. Circuit Judge Richard S. Arnold, 8th 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 judgesare 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 an en banc court.

Why Should Other Judges And Court Watchers Care?

The “rule of law” should not be disregarded as a matter of general principal; however, there are other reasons you should care. For example, one district judge can be overruled with a published opinion that is easily accessible by the general public while another district judge can be upheld or affirmed on appeal for the exact same of operative facts and law in an unpublished opinion. The Judge with the reversal and published opinion will be subject to public scrutiny and the ire of the U.S. Senate Judiciary Committee if a nomination comes up while the judge that was upheld will not leave a paper trail and even if it does, the unjust and unpublished decision will not negatively affect the nomination candidate.  As stated below, Judge Graham was essentially affirmed by the Eleventh Circuit, by simply ignoring the issue, for allowing his Magistrate to issue the following injunctions on June 19, 2000 and July 25, 2000 in part stated

“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. Incidentally, at least three courts have found similar injunctions to be unconstitutional.  In contrast, the court in Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) , reversed U.S. Dist. Judge Vanessa D. Gilmore, presiding,  for issuing an order which 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 Graham had an even more compelling reason to be reversed because Judge Graham’s case involved communication with the government which is protected under the first amendment.

Eleventh Circuit Denies Publication Request

Mason knew that the Eleventh Circuit would use an unpublished decision to reach the desired result as he begged the court on September 25, 2002 not to deploy this tactic. See Appellant’s Renewed Motion For Summary Reversal.pdf (“There is no legal basis for which this Court can affirm the district court, save an unpublished decision and an obscure procedural rule that obliterates Mason’s substantive rights. “). Mason was sure that the Eleventh Circuit would use an unpublished decision to reach the desired result because the Eleventh Circuit had used this weapon before against Mason, see post entitled “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge“. On April 10, 2003, the Eleventh Circuit denied a motion to publish this case. See Docket. Why the refusal to publish this case? This does not inspire confidence in the opinion’s integrity and and the appellate panel’s honesty.

Players and Documentation

District Court Docket, Teflon Don, Presiding

On Brief Appellant, Marcellus Mason, Pro Se, Appellant’s Initial Brief and Appellant’s Reply Brief

On Brief Apellee, Maria Sorolis, Esq, Brian Koji, Allen, Norton & Blue, Appellees’ Brief.

Opinion, Microsoft Word, PDF, Panel Judge Stanley F. Birch, Jr., Judge Stanley Marcus, and Judge Susan Black.

Eleventh Circuit Docket

A Word On Allen, Norton & Blue

The attorneys handling this matter, primarily Maria Sorolis and Brian Koji, Allen, Norton & Blue did some excellent “lawyering” as they knew the difference between the ideal, “rule of law” and the real world. In this respect, they took Mason, a mere pro se Plaintiff to school. Allen, Norton & Blue billed Highlands County some $800, 000 in legal fees, or Highlands County’s insurer Gallagher Bassett. Sorolis and Koji had a concede nothing, contest everything mentality, consequently the $800,000 in legal fees and costs. Sorolis and Koji coup de grace, with assistance from John Bolanavich, was to get Judge Graham to assess Mason, an indigent, $200,000 in legal fees when their clients did not prevail on the merits of the underlying lawsuit. Similarly, Mason defeated Allen, Norton, Blue in a parallel unemployment compensation case that Highlands County’s attorneys charged $50,000 in costs and fees to avoid paying $3500 in benefits. Mason has similarly defeated Allen, Norton & Blue in the Second District Court of Appeal, Lakeland, Fl.

Killing the Appeal on the Launching Pad

The filing of an appeal requires a filing fee which at the time of this appeal was $150.00. The lawsuit was initially filed without payment of filing fees because the district judge at time, Judge Edward Davis, now retired, granted Mason’s motion to proceed in forma pauperis. See (Doc. 3).

Judge Graham Denies IFP, Provides No Reason

A motion to proceed on appeal in forma pauperis was submitted to Teflon Don on June 27, 2001. (D.E. 796). On July 13, Mason filed a motion for a ruling on his in forma pauperis motion. See Docket. On 08/10/2001, Mason files a second motion for a ruling on his in forma pauperis motion. See Docket 811. On September 11, 2001, Judge Graham refers the motion to the Magistrate Frank Lynch, Jr. See Docket Entry 860. On September 20, 2001, or three months after the motion is submitted, Judge Lynch denies IFP.

THIS CAUSE came before the Court upon Plaintiff’s Motion for Permission to Appeal in forma pauperis and Affidavit (D.E. #899). THE COURT having considered the motion, the pertinent portions of the record and being otherwise fully advised in the premises, it is, ORDERED AND ADJUDGED that Plaintiff’s Motion is DENIED.

This denial is not lawful as it fails to provide an explanation for the denial. However, at this point, Judge Graham knows that he can get away with this because the Eleventh Circuit has affirmed him on appeal before for failing to make an explanation of a denial of IFP. Additionally, the Eleventh Circuit reversed Judge Daniel T.K. Hurley for a similar failure or omission. See this site, post “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge“. More importantly, given that Mason was initially allowed to proceed IFP, the appeal should have been allowed to proceed IFP according to Rule 24, Fed.R.App.P.:

(3) Prior Approval.

A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless:

(A) the district court—before or after the notice of appeal is filed—certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding; or

(B) a statute provides otherwise.

See also

Callihan v. Schneider, 178 F.3d 800 (6th Cir. 1999)(“If the party was permitted to proceed in forma pauperis in the district court, the party may proceed on appeal in forma pauperis without further authorization unless the district court certifies in writing that an appeal would not be taken in good faith, or the party is not otherwise entitled to proceed as a pauper.“)

Eleventh Circuit Denies IFP, Refuses to Provide Factual Support

The Eleventh Circuit, without providing a scintilla of proof, simply stated that Mason had not been “truthful”. On December 12, 2001, the Eleventh Circuit denied a motion to proceed on appeal in forma pauperis.

Appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED because appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees. See Moreland v. Wharton. 899 F.2d 1168,1170 11th Cir. 1990) (holding that right to proceed is not absolute. but rather is left to the sound of the court).

December 12, 2001, Order Case No. 01-13664. A MOTION FOR RECONSIDERATION AND CLARIFICATION was filed on December 15, 2001 begging the court to state the basis for its conclusion that the appellant had been untruthful. On February 7, 2002, the Eleventh Circuit denied the motion and refused to provide an explanation.

Appellant has filed a “motion for reconsideration and clarification,” which is construed as a motion for reconsideration of this Court’s order dated December 12, 2001, denying leave to proceed on appeal in forma pauperis. Upon reconsideration, appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED.

See Order Denying Reconsideration. The Eleventh Circuit eschewed its own binding precedent set forth in a published opinion at Martinez v. Kristi Kleaners Inc., 364 F.3d 1305 (11th Cir. 2004) which opined:

When considering a motion filed pursuant to § 1915(a), “[t]he only determination to be made by the court … is whether the statements in the affidavit satisfy the requirement of poverty.” (internal citations omitted). An affidavit addressing the statutory language should be accepted by the court, absent a serious misrepresentation, and need not show that the litigant is “absolutely destitute” to qualify for indigent status under § 1915. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 338-40, 69 S.Ct. 85, 88-89, 93 L.Ed. 43 (1948). Such an affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependent.

Driving Up Costs To Perfect Appeal

The Eleventh Circuit knew that Marcellus Mason lacked financial resources, but yet they took measures against Marcellus Mason which drove up the cost to Mason to perfect the appeal. On March 6, 2002, the Eleventh Circuit struck Mason’s brief for arguing against a sua sponte issued pre-filing injunction because they claimed it was “beyond the scope of appeal.” See Order Striking Appellant’s Brief. As a result, the Eleventh Circuit ordered Mason to file seven new briefs. The cost of copying these briefs was about $0.15 per page. The Appellant Brief consisted of some 48 pages in total. The Appellees, Highlands County and their attorneys, Allen, Norton & Blue, who have copy machines and resources, had their brief stricken for arguing the same sua sponte issued pre-filing injunction, but were not required to file new briefs as the court claimed it would not consider the sua sponte issued pre-filing injunction in its deliberations. See Order Striking Appellees’ Brief.

On February 5, 2002, the Eleventh Circuit threatened to dismiss the appeal, if Mason did not provide indexing tabs for the record excerpt. See Letter from Clerk. Similarly, on the same day, the Eleventh Circuit attacked Mason’s brief because the brief lacked a “Sufficiently durable cover.” Additionally, the brief was attacked because the brief lacked a “Statement Regarding Oral Argument.” See Clerk’s Letter.

Motion for Clarification

Mason attempted to get Judge Graham to inform the Eleventh Circuit of the legal authority he used to issue orders that were central to the appeal. On January 16, 2002, Mason filed a motion for clarification with Judge Graham requesting that Judge Graham set forth legal authority for the orders that led to the dismissal of the case:

“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.”

The motion poses the following question:

By what legal authority does the Magistrate act in issuing the orders in question, (DE #201, 246), directing that a nonlawyer must seek the permission of a private for profit lawfirm in order to communicate with his government directly and request public records under Florida Law? The refusal by this Court to previously answer this inquiry is needlessly wasting the judicial resources of multiple courts.

On January 25, 2002, Judge Graham refused to cite legal authority for the orders while stating:

Plaintiff submitted a letter to the Court, requesting that his Motion for Clarification of Court Orders be filed with the Court. The Court shall accept this Motion as a filing. However, this motion will not be granted. Plaintiff has, on numerous occasions, filed motions for clarification in this case, all of which have been denied. The Court finds the present motion, Like the motions before it is without merit.

See Graham’s Order Refusing to Cite Legal Authority.

Jurisdictional Challenge

“It is not proper for federal courts to proceed to a merits question despite jurisdictional objections.” In re Madison Guaranty Savings & Loan Association, 173 F.3d 866; 335 U.S. App. D.C. 327 (C.A.D.C. 1999). On March 13, 2002, Mason filed an Appellant’s Motion to Determine Jurisdiction. See Eleventh Circuit’s Docket. In Bischoff v. Osceola County, Fla., 222 F.3d 874, 878 (11th Cir. 2000), the Eleventh Circuit held:

The federal courts are under an independent obligation to examine their own jurisdiction….” [I]t is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking. [B]efore rendering a decision every federal court operates under an independent obligation to ensure it is presented with the kind of concrete controversy upon which its constitutional grant of authority is based; and this obligation on the court to examine its own jurisdiction continues at each stage of the proceedings, even if no party raises the jurisdictional issue and both parties are prepared to concede it.

11th Cir. R. 31-1(e) in pertinent part states:

If, upon review of the district court docket entries, order and/or judgment appealed from, and the notice of appeal, it appears that this court may lack jurisdiction over the appeal, the court may request counsel and pro se parties to advise the court in writing of their position with respect to the jurisdictional question(s) raised.

Mason challenged the jurisdiction of the Eleventh Circuit to hear the appeal on the theory that Judge Graham’s Magistrate, Frank Lynch, Jr., did not have the legal authority to render the orders in question, consequently, the Eleventh Circuit lacked jurisdiction of the appeal. This procedure invokes jurisdiction to determine jurisdiction of the lower court. See United States v. United Mine Workers, 330 U.S. 258 (1947) (“It is now held that, except in case of plain usurpation, a court has jurisdiction to determine its own jurisdiction…“). In order for the Eleventh Circuit to have jurisdiction to entertain the appeal, it would have been forced to determine the validity of the preliminary injunctions in question. However, the Eleventh Circuit would have none of that. In a move of pure artifice that would make the schister lawyer proud, the Eleventh Circuit, sua sponte, converted the Motion to Determine Jurisdiction into a Motion for Summary Reversal and then denied the motion for summary judgment on April 15, 2002. Essentially the Eleventh Circuit gave itself permission not review its jurisdiction because it would have lead to a summary reversal for Mason the Appellant. See Eleventh Circuit’s Docket.

Appellees’ Dilatory Tactic

The Appellees, Maria Sorolis, Allen Norton & Blue, filed a Suggestion of Bankruptcy on April 20, 2002. See Docket. During the pendency of the appeal, Mason filed a bankruptcy petition. In

a bizarre view of the law, the Appellees suggested that the appeal should be stayed because of Mason’s bankruptcy petition. Section 362(a) of the Bankruptcy Code provides that the filing of a bankruptcy petition “operates as a stay” against various steps of creditors to obtain collection of the debts owed to them. 11 U.S.C. 362(a). The automatic stay is designed to protect the debtor. Mason did not seek the protection of bankruptcy court in this appeal. As a result of Ms. Sorolis dilatory tactic, the stay was instituted and maintained until July 11, 2002. Why would a creditor or potential creditor want a stay?

Disqualification and Recusal

Mason argued in his appeal briefs that Judge Graham and Magistrate, Frank Lynch, Jr. should have disqualified due to judicial misconduct, abuse, and mismanagement. Mason argued in his brief that the following documented behavior should have disqualified Judge Graham from hearing the case:

Compare Judge Graham’s behavior to the district judge in Chudasama v. Mazda Motor Corporation, 123 F.3d 1353 (11th Cir. 1997) where the district judge, Judge Duross Fitzpatrick, Middle District of Georgia, was excoriated for mismanagement. This case involved the district court’s failure to resolve discovery disputes and failure to decide motions. “Failure to consider and rule on significant pretrial motions before issuing dispositive orders can be an abuse of discretion.” Chudasama, supra.

Eleventh Circuit Review and Response

The Eleventh Circuit’s entire response to the Disqualification and Recusal issue on appeal was the following:

Mason also raises issues that relate to non-sanction matters, e.g., …, the denial of his motions to disqualify the district court and magistrate judges,…

See Opinion, pg. 10, Microsoft Word, PDF.

Appellees’ Response

The Appellees’ response was the fairly typical condescending response that “he merely disagrees” with the district judge’s orders.

As support for his assertions, Mason states that “the Magistrate and the District Judge have been guilty of lying, misconduct, misfeasance, and malfeasance.” (Initial Brief, p. 31). However, as is patently clear from his Initial Brief, Mason predicates such an egregious attack on the character of the District Judges solely on the basis of his disagreement with them as to the legal issues involved in this matter. (Initial Brief, p. 31-33).18 As the mere disagreement regarding a Judge’s handling of a case is insufficient to establish the grounds necessary to compel disqualification, Mason’s argument in this regard is without merit. Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (“It is well settled that the allegation of bias must show that the bias is personal as distinguished from judicial in nature'”).

Appellees’ Brief, pgs. 41-2. The Appellees do not argue against the specific facts that were raised by Mason to support disqualification.

Inauthentic and Irrelevant Emails

Eleventh Circuit Review and Response

The Eleventh Circuit’s entire “appellate review” of this issue consisted solely of the following:

Mason contends that the e-mails that became the focus of the discovery dispute were irrelevant to any claim or defense in the case, and that the district court acknowledged this. Mason claims that he denied the authenticity of the e-mails, but that the magistrate judge “authenticated them anyway.”

See Opinion, pg. 10, Microsoft Word, PDF.

Appellees’ Response

The appellees list protected out court emails that they thought violated the preliminary injunctions. A sampling of these emails included the following:

How is your confidence today Roos [sic]? You guys have a tiger by the tail. I’d appreciate any comments you may have.

* *

I want Carl Cool fired. You have never liked Carl Cool, yet you and him have an unholy alliance.

See Appellees’ Brief, pgs. 6-8. The Appellees made no legal argument with respect to the authentication and relevancy of these emails.

Validity of the Preliminary Injunctions

Mason argued that the preliminary injunctions, (DE #201), (DE #246), that led to the dismissal of the case were illegal for a host of reasons.

Eleventh Circuit Review and Response

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 Opinion, pg. 9, Microsoft Word, PDF. Actually, there is another reference to these preliminary injunctions that might possibly be considered a legal basis for these orders:

“Moreover, the magistrate judge and district court attempted to clarify with Mason that the Orders were not injunctions, but rather necessary for the orderly litigation of the case.” pg. 10.

Appellees’ Response

Lastly, Mason’s contention that the Magistrate Judge lacked authority under 28 U.S.C. § 636(b)(1)(A) to issue the Orders preventing him from making direct, undesired contact with Appellees as the Orders constitute injunctive relief is likewise without merit. As explicitly noted by the Magistrate Judge in the Orders at issue, the District Court considered the request for relief in this regard as a discovery matter and not as a matter involving injunctive relief. As the Magistrate Judge clearly possesses the authority to decide pre-trial discovery matters, the Orders at issue in this case were proper. 28 U.S.C. § 636(b)(I)(A).

See Appellees’ Brief, pgs. 31-32.

Related Sidenote

Mason sought relief from the preliminary injunction by filing a petition for mandamus in Eleventh Circuit Case No. 01-11305. However, on April 26, 2001, the Eleventh Circuit declined to review these orders and stated:

[W]ith regard to his requests for relief from the order granting the defendants motions for preliminary injunction. which the court construed as a preliminary discovery motion. Mason has an alternative remedy. Me may either comply with the district 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 Rouse Constr. Int’l. Inc. v. Rouse Constr. Corp., 680 F.2d 743, 745 (11th Cir. 1983).

See Opinion Case No. 01-11305.

Beyond the Scope of Appeal Chicanery

The Eleventh Circuit accomplished the logically impossible by using an order rendered on September 20, 2001 to justify the dismissal of case that was closed or dismissed on June 20, 2001.  On September 20, 2001, or three months after the Notice of Appeal had been filed, Judge Graham rendered a pre-filing injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. The Notice of Appeal was filed on June 25, 2001. (Docket Entry 795).

It is well settled that sua sponte issued pre-filing injunctions are void because they violate due process. See Case Law Authority on Pre-filing Injunctions. This sua sponte issued pre-filing injunction played a critical role in this appeal for two reasons. Firstly, as will be illustrated below, the Eleventh Circuit struck Mason’s brief for arguing against this sua sponte issued pre-filing injunction in his brief because they claimed it was “beyond the scope of appeal”. Secondly, after having struck Mason’s for brief for arguing against this sua sponte issued pre-filing injunction, the Eleventh Circuit then uses the very same sua sponte issued pre-filing injunction to affirm Judge Graham in its opinion.

The Eleventh Circuit used two orders of Judge Graham that it deemed beyond the scope of appeal to affirm Judge Graham. Document Number 878, the sua sponte issued pre-filing injunction rendered on September 20, 2001 and Document No. 900, R19-900-7, . Document No. 900 is an order to show cause that was issued on March 22, 2002, or six months after the Notice of Appeal was filed on June 25, 2001. Document No. 900 is referenced at page 12 of the Opinion.

Eleventh Circuit Review and Response

On October 16, 2002, when the Court made its decision it used the following excerpt to justify a Rule 41(b), Fed.R.Civ.P. dismissal:

Moreover, despite the closure of the case by the district court, Mason’s continual filing of motions with the court addressing matters previously settled prompted the district court to prohibit Mason from further filings without explicit permission and initiate criminal contempt proceedings. Therefore, the record supports the district court’s implicit finding that a sanction less than dismissal of the action with prejudice would have had no effect.

See Opinion, pgs. 13-14, Microsoft Word, PDF. This is a clear reference to the sua sponte issued pre-filing injunction of September 20, 2001. (Doc. 878).

Appellees’ Response

The Appellees supposedly had their brief “stricken” for using this sua sponte issued pre-filing injunction. The Court had stated on April 23, 2002:

Appellant’s motion to strike Appellees’ brief is GRANTED IN PART to the extent that Appellees cite to the District Court’s September 20, 2001, Omnibus Order, as that order is outside the scope of this appeal. This Court will disregard any references in Appellees’ brief to matters outside the scope of this appeal.

Order Striking Appellees Brief.

Fed.R.Civ.P. 41 Dismissal Standard Failure

Mason argued that Judge Graham had failed to meet the Eleventh Circuit’s published standards for a dismissal pursuant to Rule 41(b), Fed.R.Civ.P. set forth in World Thrust v. Intern. Family Entertainment, 41 F.3d 1454, 1456-7 (11th Cir. 1995). Appellant’s Initial Brief, pgs. 8-9 and Appellant’s Reply Brief, pg . In World Thrust, the court emphasized that it “has clearly stated that because dismissal is considered a drastic sanction, a district court may only implement it, as a last resort, when: (1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanctions would not suffice.” In World Thrust, the Eleventh Circuit refused to even discuss the contumacious conduct prong because:

We need not decide, however, whether the conduct of World Thrust’s lawyers was contumacious because the district court failed to make the necessary finding that lesser sanctions would not suffice in this instance, as required in the second prong of the inquiry. “Although we occasionally have found implicit in an order the conclusion that ‘lesser sanctions would not suffice’, we have never suggested that the district court need not make that finding, which is essential before a party can be penalized for his attorney’s misconduct.” Mingo v. Sugar Cane Growers Co-op of Florida, 864 F.2d 101, 102 (11th Cir.1989) (citations omitted). This court has only inferred such a finding “where lesser sanctions would have ‘greatly prejudiced’ defendants.” Kilgo, 983 F.2d at 193 (quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985)). Because we cannot envision how the appellees would have been greatly prejudiced through the imposition of lesser sanctions, we refuse to infer a finding that lesser sanctions would not have sufficed in this case.

Mason made the argument that the government defendants were not and could not be prejudiced by the out of court communications with it by Mason.

Judge Graham Expressly Rejected Requirement That Lesser Sanction Would Not Suffice

Mason filed his PLAINTIFF’S OBJECTIONS TO R&R (DE # 766) DISMISSING PLAINTIFF’S COMPLAINT that specifically mentioned World Thrust v. Intern. Family Entertainment, 41 F.3d 1454, 1456-7 (11th Cir. 1995 and the Eleventh Circuit’s requirements under Rule 41(b). However, Judge Graham simply adopted the R&R and ignored Mason’s citation to law and World Thrust. See (D.E. 791).

Eleventh Circuit Review and Response

The Eleventh Circuit chose Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983) as its legal standard for a Rule 41(b) dismissal. It is interesting to note that the Eleventh Circuit chose Jones, a case 16 years older than the World Thrust case, the case cited by Mason. Moreover, World Thrust discusses the importance of the two prongs that must be met to support a Rule 41(b) dismissal. The Eleventh Circuit does not state how the Appellees would have been greatly prejudiced with a lesser sanction than dismissal.

Appellees’ Response

The Apellees cited Gratton v. Great Am. Communs., 178 F.3d 1373, 1374 (11th Cir. 1999) in support of their argument that a Rule 41(b) dismissal was justified. Gratton is distinguishable from the instant case for two reasons. Firstly, the plaintiff in Gratton obstructed discovery to the prejudice of the Defendant. There is no such allegation in the instant case. Secondly, and more importantly, the district court in Gratton made an explicit finding that lesser sanctions would not suffice. The Appellees made no argument in their brief that they would have been greatly prejudiced by a lesser sanction than dismissal.

Judge Graham’s Colleague Was Reversed for Similar Facts

See this site, post entitled ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal“.

Eleventh Circuit Uses Invalid Pre-Filing Injunction

The Eleventh Circuit used a clearly void sua sponte issued pre-filing injunction to affirm Judge Graham. On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. It is black letter law that due process or notice and opportunity to respond must be afforded prior to the issuance of a pre-filing injunction. See U.S. v. Powerstein, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006)(litigant entitled to notice and an opportunity to be heard before the court imposed the injunctive order). For case law authority, see Sua Sponte Web Page. It is equally well settled that an order issued in violation of due process is void and has no legal effect. “’No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.” Old Wayne Mut. Life Ass’n v. McDonough, 204 U.S. 8, 15 (1907). “A void judgment is from its inception a legal nullity.” Boch Oldsmobile, at 909 F.2d 657, 661 (1st Cir. 1990). Lops v. Lops, 140 F.3d 927, 941 n. 19(11th Cir. 1998) (“something that is null has no legal or binding force.”);

Eleventh Circuit Review and Response

At pages 13-14 of the Opinion, the Eleventh Circuit states:

Moreover, despite the closure of the case by the district court, Mason’s continual filing of motions with the court addressing matters previously settled prompted the district court to prohibit Mason from further filings without explicit permission and initiate criminal contempt proceedings. Therefore, the record supports the district court’s implicit finding that a sanction less than dismissal of the action with prejudice would have had no effect.

See Opinion, pgs. 13-14, Microsoft Word, PDF. This is a clear reference to the sua sponte issued pre-filing injunction of September 20, 2001. (Doc. 878).

Appellees’ Response

The Appellees used the sua sponte issued pre-filing injunction of September 20, 2001 in their brief to support their notion that the case was properly dismissed. See Appellees’ Brief, pgs. 19-20. They make no argument regarding the legality of this sua sponte issued pre-filing injunction.

The Eleventh Circuit Intentionally Omitted Issues From Appellate Review

Mason filed a motion for rehearing specifically enumerating items the Court failed to consider in its unpublished opinion. See Motion For Rehearing. On January 31, 2003, the Eleventh Circuit simply denied the motion and took no further action. “The petition(s) for rehearing filed by appellant, Marcellus M. Mason, Jr., is DENIED.” Order Denying Rehearing. This order was signed by Judge Stanley F. Birch.

BACKGROUND

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, 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. “R&R” (D.E. 766), Order adopting R&R (D.E 791). See Banned Communications.
In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue asked the Magistrate to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants. 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 on June 19, 2000 and July 25, 2000 in part stated:

“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.

Judge Graham has expressly stated that the issuance of the injunctions by Magistrate Judge Frank Lynch, Jr. was not “clearly erroneous nor is it contrary to law.” See Docket Entry No. 407. However, Congress and the law disagree as the law expressly states that: “Notwithstanding any provision of law to the contrary— a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief…,” 28 U.S.C. § 636(b)(1)(A).

On March 2, 2001, Highlands County Board of County Commissioners attorneys, Allen, Norton & Blue, filed a “DEFENDANTS’ MOTION FOR SANCTIONS IN THE FORM OF DISMISSAL OF PLAINTIFF’S ACTION AND SUPPORTING MEMORANDUM OF LAW“. See Docket Entry No. 511. This motion sought dismissal of the lawsuit due to alleged out of court communications with the Highlands County Government in violation the injunctions mentioned above, (DE #201) and (DE #246). On April 9, 2001, the Defendants’ filed a second motion for sanctions in the form of dismissal of Plaintiff’s lawsuit for more alleged out of court communications between Mason and the Highlands County Government. See Docket Entry No. 646. On May 31, 2001, the Magistrate, Frank Lynch, Jr., prepared a Report and Recommendation, “R&R”, recommending that the lawsuit be dismissed because of these out of court communications between Mason and his local government, Highlands County Board of County Commissioners. Judge Graham accepted this R&R in whole with no changes or comments.

The Case was closed on June 20, 2001. Docket Entry No. 791. A Notice of Appeal was filed on June 25, 2001. (Docket Entry 795). District Case No. 99-14027-CV-Graham was assigned Eleventh Circuit Case No. 01-13664. Consequently, the court never reached the merits of the lawsuit as there were motions for summary judgments pending when 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).

On September 20, 2001, Judge Graham affirmed his authority to prohibit out of communication between Mason his government, Highlands County. (“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.”). See pg. 4, (D.E. # 878) .

Banned 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)

2 Responses to “Eleventh Circuit Case No. 01-13664: The Appeal From Hell”

  1. In Forma Pauperis Statute Abused To Conceal Acts Of Judicial Misconduct Committed By U.S. Dist. Judge Donald L. Graham « Unpublished Junk Law of the Eleventh Circuit, US Court of Appeals Says:
    October 19, 2008 at 8:22 am | Reply

    […] “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“,  is fully documented at: https://mcneilmason.wordpress.com/eleventh-circuit-case-no-01-13664-the-appeal-from-hell/.  This particular post documents how U.S. Dist. Judge Donald L. Graham and the Eleventh Circuit […]

  2. Bankruptcy Blog Says:
    January 14, 2010 at 1:32 am | Reply

    This is some really information, I just wrapped up my paper for school and think I should go re-edit it lol. You may have just made me a regular 🙂

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