Archive for the ‘Eleventh Circuit’ Category

Another One Bites the Dust: Same Set of Facts, Judge Graham Affirmed While Colleague Judge Forrester Reversed

July 24, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct. Judge Graham has a history of insolence with [dis]respect the United States Supreme Court and binding precedent. See this site, “Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?“.

It is hard not to conclude that Judge Donald L. Graham is more valued than his colleagues at the Southern District of Florida and in the Eleventh Circuit when Judge Graham “teflon don” is affirmed on appeal while his colleagues at the S.D. Fla. and elsewhere in the Eleventh Circuit are reversed. In this post, U.S. Dist. J. Owen Forrester is “victimized” by the published opinion.  This is the fifth of five postings on this site where this has happened. U.S. Dist. Judges Daniel T. K. Hurley, Ursula Ungaro-Benages, Marvin H. Shoob, and William P. Dimitrouleas, met similar fates. 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“, U.S. Dist. Judge William P. Dimitrouleas Reversed While Colleague Judge Donald L. Graham Affirmed by Killing The Appeal, and Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata. In each case the Eleventh Circuit chose to deploy an unpublished opinion to affirm and protect Judge Graham while his colleagues suffered reversals in published opinions.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.

Mason sought to appeal a sua sponte issued pre-filing injunction that was rendered by U.S. Dist. Judge Donald L. Graham on September 20, 2001. See “The Sua Sponte Issued Pre-Filing Injunction“, heading below. Sua sponte issued pre-filing injunctions are void because they are issued without notice and opportunity to respond or due process. See, Case Law On Pre-Filing Injunctions, below. Additionally, this sua sponte issued pre-filing injunction is void because it made a so-called “finding of bad-faith” without the requisite notice and opportunity to respond or due process. The Eleventh Circuit has a long history of refusing to review this clearly void sua sponte issued pre-filing injunction. See Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review.

Judicial Independence

This post is a part of the overall scheme to land a knockout blow to the American Bar Association’s koolaid of “Judicial Independence”. The ABA’s emphasis is on “Judicial Independence” and it resists “interference” from outsiders-Congress of the United States, Layman review boards. The ABA has said: “There are checks on the judiciary and channels to correct improper decisions. The appeal process affords litigants the opportunity to challenge a judicial ruling. About Us – ABA Standing Committee on Judicial Independence. This is the idealistic and theoretical basis for “Judicial Independence”; however, the reality or actual practice does not equal the ideals. Suppose for a moment that such a system does not work. Federal Judges will take extreme measures to avoid disciplining a colleague federal judge. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell for even more dishonest jurisprudence. Moreover, the Eleventh Circuit will do anything to achieve the desired outcome. Two posts at this site, mcneilmason.wordpress.com, document how the Eleventh Circuit will do anything to achieve the desired outcome as the Eleventh took two different and inconsistent positions with respect to the jurisdiction of the lower court or Judge Graham during the appeal of this very appeal. See Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal! and Putrid Dishonesty:Beyond the Scope of Appeal.

Judge J. Owen Forrester and the Published Opinion

U.S. Dist. Judge J. Owen Forrester was reversed on appeal where he dismissed a prisoner 28 U.S.C. § 1983 civil rights lawsuit, sua sponte, pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(b)(1), for failure to state a claim upon which relief may be granted because the statute of limitations precluded the prisoner from stating a claim. On July 20, 2000, the district court entered a two and one-half page order dismissing Leal’s suit, sua sponte, under the PLRA’s screening provisions, 27 U.S.C. § 1915A(b)(1), for failure to state a claim upon which relief could be granted. See Arsenio Leal v. Georgia Department Of Corrections, 254 F.3d 1276 (11th Cir. 2001). On August 23, 2000, the prisoner filed his notice of appeal from the dismissal. Ultimately, the court held that the notice of appeal was timely filed and proceeded to reverse Judge Forrester. If the Eleventh Circuit had used the same “rule of law” it used in Marcellus Mason v. Highlands County Board of County Commissioners, et.al., Case No. 02-14646-A, D. C. Case No. 99-14027-CIV-Graham, U.S. Dist. Judge Donald L. Graham, presiding, then it should have dismissed the appeal as untimely and not reversed Judge Forrester.

However, in Judge Forrester’s case, Arsenio Leal v. Georgia Department Of Corrections, 254 F.3d 1276 (11th Cir. 2001), the Eleventh Circuit held that

However, the 30-day appeal period does not begin to run until a final judgment is entered on a separate document pursuant to Federal Rules of Civil Procedure 58 and 79(a).2 See Fed. R. App. P. 4(a)(7) (“A judgment or order is entered for purposes of Rule 4(a) when it is entered in compliance with Rule 58 and 79(a) of the Federal Rules of Civil Procedure”). Here, the district court entered an order dismissing Leal’s suit on July 20, but the court failed to enter a final judgment on a separate document pursuant to Rule 58. Because “the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58 . . . there is no lack of appellate jurisdiction on the basis of untimeliness” even though Leal did not file his notice of appeal until August 23.

Similarly, in Reynolds v. Golden Corral Corporation, 213 F.3d 1344 (11th Cir. 2000), the Eleventh Circuit held that

“[C]ases from both the Supreme Court and the circuit courts of appeal make it clear that the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58. See, e.g., United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562 (1973).”

As documented below, the Eleventh Circuit in an unpublished decision, Eleventh Circuit Case No. 02-14646-A, held that a notice of appeal was untimely where it preceded the final judgment. Unlike Arsenio Leal and Reynolds, the Eleventh Circuit held that Marcellus Mason’s notice of appeal, June 24, 2002, was untimely even though it preceded the final judgment, September 13, 2002 by almost three months. Stated alternatively, there was no separate final judgment when Mason filed his notice of appeal.

Judge Donald L. Graham and the Unpublished Opinion

Eleventh Circuit Case No. 02-14646-A

D. C. Case No. 99-14027-CIV, Teflon Don, presiding.

On February 19, 2002, Defendants, Highlands County Board of County Commissioners, et.al. filed a Motion for Entry of Final Judgment. (D.E. #897).

On September 13, 2002, the Defendant’s Motion for Entry of Final Judgment was granted and a final judgment was entered. See (D.E. #911). Judge Graham stated:

THIS CAUSE came before the Court upon Defendant’s Motion for Entry of Final Judgment (D.E. 897)…ORDERED AND ADJUDGED that Defendant’s Motion is GRANTED. Final Judgment is entered in favor of Defendant and costs….

See (D.E. #911).

On October 7, 2002, the Eleventh Circuit, United States Court of Appeal stated:

This appeal is DISMISSED, sua sponte, for lack of jurisdiction. Appellant Marcellus Mason’s notice of appeal, filed on June 24, 2002, is untimely from the district court’s order enjoining him from filing additional pleadings, entered on September 21, 2001. See Fed.R.App.P. 4(a)(1)(A) & 26(a)(3).

No motion for reconsideration may be filed unless it complies with the timing and other requirements of 11th Cir.R. 40-4 and all other applicable rules.

.

Long History of Refusing to Review the Sua Sponte Issued Pre-filing Injunction

The Eleventh Circuit has refused to review the sua sponte issued pre-filing injunction no less than eight (8) times. The reasons for refusing to review the sua sponte issued pre-filing injunction is different each time. The following cases provided the Eleventh Circuit with the opportunity to review the sua sponte issued pre-filing injunction:

Case No. 01-13664-A, Direct Appeal, Oct. 16, 2002 is particularly offensive because the Eleventh Circuit struck Mason’s appellate brief because it argued against that the sua sponte issued pre-filing injunction that the Eleventh Circuit stated was “beyond the scope of appeal”. However, when the Eleventh Circuit affirmed Judge Graham in its decision it then used the same sua sponte issued pre-filing injunction to affirm Judge Graham. See Putrid Dishonesty:Beyond the Scope of Appeal. This appeal, Case No. 01-13664 has been referred to as the “appeal from hell”. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell. Lastly, and even more offensive and egregious, the Eleventh Circuit sat idly by while Mason was being railroaded in a kangaroo court for contempt based solely upon this clearly void sua sponte issued pre-filing injunction. See Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life. Clearly, a decision has been taken that Judge Graham’s career is more important than Mason’s life.

The Sua Sponte Issued Pre-Filing Injunction

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his own 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. This type of injunction is commonly referred to under several different names: “leave to file injunction”, “vexatious litigant injunction”, “pre-filing injunction”, “filing injunction”, “1651 injunction”. This order was rendered when the matter had been on appeal since June 25, 2001. This fact creates a potential jurisdictional problem. See Post, “Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal!” to see how the Eleventh Circuit dishonestly handled this problem. For specific case law on sua sponte issued injunctions, See Case Law On Pre-Filing Injunctions, below. This same sua sponte issued pre-filing injunction that Mason was not notice given notice and opportunity to respond to makes a so-called “finding of bad faith” that was subsequently used to award a heavily insured governmental entity attorney’s fees of $200,000. At pages 5,6, this sua sponte issued pre-filing injunction asserts:

It has become clear to the Court that Mason is proceeding in bad faith. Indeed, he has admitted as much in his own pleadings and correspondence…Such activity is in bad faith and will not be permitted by the Court.

A finding of bad faith requires due process as well. ” “A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees,..” Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). See also Byrne v. Nezhat, 261 F.3d 1075 (11th Cir., 2001)(A court should be cautious in exerting its inherent power and “must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.” ). See Judge Donald L. Graham Awards $200,000 Attorney’s Fees Against An Indigent. Apparently, Judge Graham does not have to do a damn thing even if the United States Supreme requires it.

The U.S. Supreme Court,”SCOTUS”, On the Importance of Due Process

“Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ of which the Court speaks can be won only if judges honor the Constitution.” Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting). “Due process is perhaps the most majestic concept in our whole, constitutional system.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 174 (1951) (Justice Frankfurter, concurring). It is ingrained in our national traditions, and is designed to maintain them. In a variety of situations, the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution.” id. 161. “Fairness of procedure is “due process in the primary sense.” Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 281 U. S. 681.

In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Right of Access To Courts is Constitutionally Protected

The right of access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102 (1996). The Supreme court has stated the right of access to the courts also protected by the First Amendment. BE&K Construction CO. v. National Labor Relations Board et al. 536 U.S. 516 (2001)(“the right to petition extends to all departments of the Government,” and that “[t]he right of access to the courts is … but one aspect of the right of petition.“). California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972)(“The right of access to the courts is indeed but one aspect of the right of petition.“). See Tennessee v. Lane, 541 U.S. 509 (2004)(recognizing “the fundamental right of access to the courts”); Procunier v. Martinez, 416 U.S. 396 (1974)(“The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to hallenge unlawful convictions and to seek redress for violations of their constitutional rights.“).

Case Law On Pre-Filing Injunctions

US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED “SUA SPONTE” PRE-FILING INJUNCTIONS.

A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. 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 ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.”) ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court’s order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”).

Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4th Cir. 2005);Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987). The United States Supreme Court has stated: A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees. (emphasis added) Chambers v.Nasco, Inc.,501U.S. 32, 50 (1991).

Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review Sua Sponte Issued Pre-Filing Injunction

June 12, 2008

Justice Turned On Its Head

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

Foreword

There’s an old Negro spiritual called “May the Work I’ve Done Speak for Me”. In this same spirit, this author allows the work of the Eleventh Circuit, U.S. Court of Appeal and Judge Graham’s cohorts to speak for them. Unlike, Judge Graham, the Eleventh Circuit and his enablers apparent zeal and affinity for dishonesty, mis-characterization, omission, their work will not be characterized or mis-characterized it will be produced in full and publicly available for the reading public to make their own assessments. The record fully supports the idea that the Eleventh Circuit and its Judges and staff attorneys will take extreme, even lawless measures to protect Judge Graham. This post is part of an overall pattern and practice of using extreme measures and lawlessness to conceal the misconduct of Judge Graham. See Documented Allegations of Misconduct.

How Many Times Can a Court Refuse to Review an Order For Validity?

This post will demonstrate that the Eleventh Circuit, U.S. Court of Appeals has set a Guinness world record for refusing to review a clearly void sua sponte pre-filing injunction that was rendered by “Teflon Don”, U.S. District Judge Donald L. Graham on September 20, 2001. The Eleventh Circuit has declined to reach the merits of this sua sponte issued pre-filing injunction on multiple occasions. The denials invoke a kind of creative dishonesty. As a matter of fact, the denials are not consistent and even contradict each other on each successive attempt at appellate review. Even an ardent supporter of the system would have a hard time arguing that there is not a certain amount of dishonesty involved in the matter. The point here is that there has never been any appellate review of the sua sponte issued pre-filing injunction of September 20, 2001. Yet this sua sponte issued pre-filing injunction has been used as a weapon against Marcellus Mason. The Eleventh Circuit has elevated artifice to a level that would make a shister lawyer proud. The coup de grace is the Eleventh Circuit sat idly by while this clearly void sua sponte issued pre-filing injunction was used to form the basis of a criminal contempt complaint and conviction. See this outrageous story, “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life“.

Judicial Independence

This post also makes vividly clear why federal judges cannot and should not be trusted to discipline themselves. The information provided in this post is not only true, but you would not be able to get this information anywhere else. The Eleventh Circuit relies on ignorance and the public’s willingness to believe that its federal judges are honest, diligent, and trustworthy. America should not drink the American Bar Association’s, “ABA”, koolaid of judicial independence.

The Sua Sponte Issued Pre-Filing Injunction

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his own 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. This type of injunction is commonly referred to under several different names: “leave to file injunction”, “vexatious litigant injunction”, “pre-filing injunction”, “filing injunction”, “1651 injunction”. This order was rendered when the matter had been on appeal since June 25, 2001. This fact creates a potential jurisdictional problem. See Post, “Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal!” to see how the Eleventh Circuit dishonestly handled this problem. For specific case law on sua sponte issued injunctions, see Case Law On Pre-Filing Injunctions, below. This same sua sponte issued pre-filing injunction that Mason was not notice given notice and opportunity to respond to makes a so-called “finding of bad faith” that was subsequently used to award a heavily insured governmental entity attorney’s fees of $200,000. At pages 5,6, this sua sponte issued pre-filing injunction asserts:

It has become clear to the Court that Mason is proceeding in bad faith. Indeed, he has admitted as much in his own pleadings and correspondence…Such activity is in bad faith and will not be permitted by the Court.

A finding of bad faith requires due process as well. ” “A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees,..” Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). See also Byrne v. Nezhat, 261 F.3d 1075 (11th Cir., 2001)(A court should be cautious in exerting its inherent power and “must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.” ). See Judge Donald L. Graham Awards $200,000 Attorney’s Fees Against An Indigent. Apparently, Judge Graham does not have to do a damn thing even if the United States Supreme requires it.


Case No. 01-13664-A, Direct Appeal

The unpublished opinion rendered in this matter is a joke and model of dishonesty and deserved its own page and is a must read, see “Eleventh Circuit Case No. 01-13664: The Appeal From Hell

This appeal was docketed under Eleventh Circuit Case No. 01-13664. The Notice of Appeal was filed on June 27, 2001. See Docket No. 795.

On Mar. 6, 2002, the court strikes the Appellants’ Brief arguing against the September 20, 2001 order. The court states the order is “beyond the scope of appeal”. Court orders Mason to go through the expense of filing new briefs that have no reference to the September 20, 2001.

On Apr. 23, 2002, Court Strikes Appellees brief for citing the order of September 20, 2001.However court refuses to make Appellees file new briefs as they did the Appellant.

On Oct. 16, 2002, the Court, Stanley F. Birch, Jr.,Susan H. Black, and Stanley Marcus, affirms Judge Graham.At pg. 14, Court specifically uses the September 20, 2001 that it stated to Mason was “beyond the scope of appeal”.

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 districts court’s implicit finding that a sanction less than dismissal of the action with prejudice would have no effect.


Case No, 01-15754, Mandamus

The Judges responsible for making this decision are Judges Susan H. Black, Rosemary Barkett, and Stanley Marcus. 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. This petition attacks the sua sponte issued pre-filing injunction of September 20, 2001. The Eleventh Circuit Court had jurisdiction to entertain an appeal pursuant to 28 U.S.C. § 1292 from the moment the injunction of September 20, 2001 was issued even if the case was not closed like the matter at bar. 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 petition. 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.

For more on this mandamus, see this site post “Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect 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

On or about February 06, 2004, Judges Susan H. Black, Rosemary Barkett, and Stanley Marcus were sent certified letters begging them to decide this matter. However, each of them declined to respond or do anything.


Case No. 01-16218

Judge Frank Hull rendered this opinion. On January 8, 2002, the Eleventh Circuit stated:

Although Mason has not filed a from the district court’s order denying IFP or the omnibus order requiring Mason to get court approval before filing any additional pleadings or lawsuits, Mason may raise all of these issues on appeal. See generally, Procup v. Strickland, 760 F.2d 1107 (11 th Cir. 1985) (reviewing the district court’s order enjoining a defendants from filing additional pleadings unless they were first submitted by an attorney admitted to practice in that court); United States v. Bailey, 175 F.3d 966 (11th Cir. 1999) (reviewing a district court’s decision not to recuse itself for abuse of discretion); Camp v. Oliver, 798 F.2d 434 (11th Cir. 1996) (reviewing district court’s order denying IFP for abuse of discretion).

See Opinion Case No. 01-16218.


Case No. 02-11476-A

On May 1, 2002, the Eleventh Circuit, Judge Joel F. Dubina, stated:

Mason also requests that this Court vacate the district court’s order enjoining Mason from to Mason’s former employment without first receiving permission from the district court. Although Mason has not filed a notice of appeal from the district court’s order requiring him to receive the permission of the district court from filing any additional pleadings or from filing any new lawsuits related to his former employment or subsequent interactions with the defendants, Mason may raise this issue on appeal. See generally, Procup v. Strickland, 760 F.2d 1107 (11th Cir. 1985) (reviewing the district court’s order enjoining a defendant from filing additional pleadings unless they were first submitted by an attorney submitted by an attorney admitted to practice in that court). Mason has an adequate alternative remedy on appeal regarding this issue.

See Opinion Case No. 02-11476-A. This is quite a remarkable and incredible statement by Judge Dubina in that by May 1, 2002, as fully set forth above, the Eleventh Circuit has already declined to review this sua sponte issued pre-filing injunction twice. See above, Case No. 01-15754 denied mandamus on December 5, 2001, and Case No. 01-13664-A, the brief was stricken on March 6, 2002 because it was said to be “beyond the scope of appeal”, then the sua sponte issued pre-filing injunction used against Mason on October 16, 2002.


Case No. 02-14646, Mandamus

Judges R. Lanier Anderson, Joel F. Dubina, and Charles R. Wilson names are on this decision. On Oct. 7, 2002, the Eleventh Circuit stated:

This Appeal is DISMISSED, sua sponte, for lack of jurisdiction. Appellant Marcellus Mason’s notice of appeal, filed on June 24, 2002, is untimely from the district court’s order enjoining him from filing additional pleading, entered on September 21, 2001.


Case No. 04-11894, Mandamus

Judges Ed Carnes and Frank M. Hull names appear on this opinion. On May 20, 2004, the Eleventh Circuit, among other things, admits to the following:

(2) vacatur of all of the decisions Judge Graham made in his case, including a September 20, 2001 order; (3) this Court to direct Judge Moore to dismiss his contempt case, number 02-14020-CR-KMM; and (4) this Court to issue an “emergency stay” with respect to the contempt case.

pg. 1, Opinion Case No. 04-11894.

At page 3, the Court asserts:

Moreover, Mason had an adequate alternative remedy to mandamus relief in that he could have timely appealed the September 20, 2001 order, but did not do so.

See pg. 3, Opinion Case No. 04-11894


Case No. 05-10623-I, Mandamus

Judge Rosemary Barkett made this decision. On March 16, 2005, the Eleventh Circuit, among other things, admits to the following:

[V]acate all decisions and rulings by Judge Graham in this case since February 1999, including the September 20, 2001 order enjoining him for filing any pleadings or additional related lawsuit without court; permission.

See Opinion pg. 1, Case No. 05-10623-I.

At pg. 2, the Eleventh Circuit asserted the following:“Furthermore, Mason appealed the dismissal of his case as well as the district court’s injunction order of September of 20, 2001...” See Pg. 2.

This statement is directly contradicted by the Eleventh Circuit’s prior assertion of May 20, 2004, Case No. 04-11894, pg. 4:”Moreover, Mason had an adequate remedy to mandamus relief in that he could have timely appealed the September 20, 2001, but did not do so.

The Eleventh Circuit has declined to review the sua sponte issued pre-filing injunction on other occasions as well. See Appellate History.

The U.S. Supreme Court,”SCOTUS”, On the Importance of Due Process

“Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ of which the Court speaks can be won only if judges honor the Constitution.” Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting). “Due process is perhaps the most majestic concept in our whole, constitutional system.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 174 (1951) (Justice Frankfurter, concurring). It is ingrained in our national traditions, and is designed to maintain them. In a variety of situations, the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution.” id. 161. “Fairness of procedure is “due process in the primary sense.” Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 281 U. S. 681.

In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Right of Access To Courts is Constitutionally Protected

The right of access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102 (1996). The Supreme court has stated the right of access to the courts also protected by the First Amendment. BE&K Construction CO. v. National Labor Relations Board et al. 536 U.S. 516 (2001)(“the right to petition extends to all departments of the Government,” and that “[t]he right of access to the courts is … but one aspect of the right of petition.“). California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972)(“The right of access to the courts is indeed but one aspect of the right of petition.“). See Tennessee v. Lane, 541 U.S. 509 (2004)(recognizing “the fundamental right of access to the courts”); Procunier v. Martinez, 416 U.S. 396 (1974)(“The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights.“).

Case Law On Pre-Filing Injunctions

US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED “SUA SPONTE” PRE-FILING INJUNCTIONS.

A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Smith v. United States, 2010U.S. App. LEXIS 14050,*;386 Fed. Appx. 853 (11th Cir. 2010) , the
Eleventh Circuit held:

“Numerous persuasive authorities support the idea that due process requires notice and a hearing before a court sua sponte enjoins a party from filing further papers in support of a frivolous claim…Smith’s filing can therefore be construed as a motion for relief under Federal Rule of Civil Procedure 60(b)(4). A judgment is void under that rule “‘if the court that rendered it . . . acted in a manner inconsistent  [*8]  with due process of law.'”..We therefore vacate and remand so that the district court may consider imposing a lesser restriction that will protect against abusive filings without improperly restricting Smith’s right of access to the courts.   If the district court decides that an injunction is necessary, Smith should be provided with an opportunity to oppose the injunction before it is instituted. “

It is remarkable that the Eleventh Circuit, sua sponte, or on its own motion, initiated Federal Rule of Civil Procedure 60(b)(4) to reverse Judge Maurice Mitchell Paul.  Also, in Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. 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 ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction);Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.”) ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court’s order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given);Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”).

Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4th Cir. 2005);Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987). The United States Supreme Court has stated: A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees. (emphasis added) Chambers v.Nasco, Inc.,501U.S. 32, 50 (1991).


.

Pre-filing Restrictions

1. Plaintiff Marcellus M. Mason is Permanently enjoined

from filing any additional pleadings in case numbers 99-14027- CIV-GRAHAM, 00-14116-CIV-GRAHAM, 00-14201-CIV-GRAHAM, 00-I4202- CIV-GRAHAM, 00-14240-CIV-GRAHAM, 01-14074-CIV-GRAHAM, 01-14078- CIV-GRAHAM, and 01-14230-CIV-GRAHAM or from filing any new lawsuit which relates in any way to Plaintiff Marcellus M. Mason’s former employment and/or subsequent interactions with Defendants without first receiving permission from the Court, as set forth below. This injunction shall apply equally to any persons or entities acting at the behest, direction, or instigation, or in concert with Marcellus M. Mason.

2. Any request for permission to file a new lawsuit relating to the issues in the above captioned cases and/or Mason’s former employment and/or subsequent interactions with Defendants SHALL be in the form of an application filed with the Clerk of Court and addressed to United States District Judge Donald L. Graham. This application shall consist of a one paragraph explanation of the issues in the proposed lawsuit, shall contain the names of all proposed parties and shall not exceed one page. The application shall not include any proposed pleadings.

See Docket Entry No. 878.

Do Staff Attorneys Decide Appeals At The Eleventh Circuit, U.S. Court of Appeals?

June 12, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct.

Questions For Consideration

If a mere pro se litigant filed an appeal which excoriated a supposed excellent jurist like U.S. District Judge Donald L. Graham, “Teflon Don”, and accused him of judicial misconduct that could be proven, what do you think the staff attorneys at the Eleventh Circuit would do? The answer is the allegations will be simply be ignored by deploying an unpublished opinion that omits material facts. The author would prefer the reader to read the rest of this post to see how this is possible, but for those who can’t wait, please see:

Are Staff Attorneys at the Eleventh Circuit, U.S. Court of Appeals Deciding Cases and Appeals?

It is widely rumored, especially among mere pro se litigants, that staff attorneys, not United States Senate confirmed United States Circuit Court Of Appeals Judges, decide appeals in many cases. While this post will take a look at a couple of cases that the Eleventh Circuit, U.S. Court of Appeal handled, there is no reason to believe that similar practices are not being deployed elsewhere. The overwhelming majority of opinions coming out of the U.S. Circuit Court of Appeals are unpublished opinions which until recently could not be cited as binding authority. The evidence presented here will prove beyond a resonable doubt that staff attorneys, using unpublished opinions, do in fact decide cases, especially mere pro se cases or appeals.

According to the Administrative Office of the U.S. Courts:

“The number of federal appeals court judgeships has not changed since 1990. In that same period, those courts’ caseloads increased by 41 percent. Of great aid to judges in the 12 regional appellate courts over those years have been the 12 court staff attorney offices…Judge Joel Dubina of the U.S. Court of Appeals for the Eleventh Circuit said, “We could not handle our caseload without the assistance of staff attorneys. The staff attorney office is an integral part of our court…”Core responsibilities vary among staff attorney offices, but in each appeals court they include review of all appeals filed by prison inmates without a lawyer’s help. Screening such “pro se” prisoner cases was the initial focus of staff attorney offices when they were formally authorized and established by Congress in 1982… Over time, the scope of the office’s substantive legal work expanded, involving staff attorneys in a larger percentage of the 60,000 federal appeals filed each year…Duties handled by staff attorney offices today range from screening all appeals, to drafting proposed opinions on preliminary matters, to preparing proposed orders, to reviewing pro se appeals for issues warranting oral arguments. Chief Judge William Wilkins said the productivity and reliability of the Fourth Circuit court’s staff attorney office allows judges and their law clerks to “minimize the time spent on the large number of pro se and counseled cases that do not present factual or legal issues that require oral argument for appropriate resolution.” “This enables us to allocate additional time to those more complex cases that are set for oral argument,” he said…In the Eleventh Circuit, staff attorneys, among other things, screen every appeal for possible jurisdictional defects. “We save the judges a lot of time by carefully going through volumes of handwritten and often imprecise legal arguments, and putting these in a form, along with citations to the record, briefs and applicable case law, that saves the judges time,” said Naomi Godfrey, the court’s senior staff attorney.”

See Staff Attorney Offices Help Manage Rising Caseloads.

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.

Cases Decided by Staff Attorneys

This post will refer the reader to three appeals that were decided by staff attorneys at the Eleventh Circuit, United States Court of Appeals: Case No. 01-13664, 01-15754, and 02-13418. Each of these appeals excoriates U.S. District Judge Donald L. Graham, however, you won’t see a word of the accusations leveled at Judge Graham in the opinions. U.S. District Judge Donald L. Graham was accused of the following documented acts in the above appeals:

  • Lying and Intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction during the entire pendency of the lawsuit from November 1999 to June 20, 2001 or about 19 months.
  • Judge Graham falsely completed a Civil Justice Reform Act Report, “CJRA” to conceal the fact that he had a motion for a preliminary injunction pending for more than 17 months.
  • Usurping authority by allowing a Magistrate, Frank Lynch Jr., to issue preliminary injunctions two times.
  • Usurping authority by allowing a Magistrate to dictate to a non-lawyer that he must seek the permission of private attorneys in order to speak with a local government.
  • Usurping authority by allowing a Magistrate to set restrictions on how Florida Public Records are to be accessed.
  • Allowing scores of motions to go undecided for months.
  • Intentionally misstating material facts in order to render a pre-filing injunction.
  • Disrespecting several well-established Supreme Court decisions proscribing certain acts of Judges.
  • Judge Graham has repeatedly and improperly denied access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions 18 separate times.
  • Judge Graham has been involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction which ultimately formed the basis of a criminal contempt complaint and conviction.
  • Judge Graham used the criminal contempt process to force the withdrawal of a lawsuit.
  • Judge Graham awarded a massive $200,000 in attorney’s fees to Highlands County against an indigent plaintiff, Marcellus Mason, not on the quality of the underlying lawsuit, but based upon Judge Graham’s speculation about Mason’s motive.
  • Judge Graham attempted to circumvent the appellate process by using intimidation.

For support of these allegations and others, see Core Allegations.

The three appeals mentioned above are fully set forth and explored in detail in the following posts:

Chief Circuit Judge J.L. Edmondson Uses Perfect Scam of Negative Definition To Defeat Complaints of Misconduct Under the Judicial Misconduct and Disability Act

June 8, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Purpose of this Post

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct. The overall scheme of all methods (direct appeal, mandamus, lawsuit, misconduct complaints) of disciplining federal judges have been undermined and defeated by Judge Graham’s cohorts at the Eleventh Circuit, see http://mmason.freeshell.org/methods.htm. States with have removed judges from office for the conduct that is listed in this post and elsewhere. This post will examine the perfect scam that Chief Judge J.L. Edmondson has used to defeat claims of judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. § 351, et.seq. The perfect scam is a “negative definition” of judicial misconduct. A negative definition is a “definition which states what a thing is NOT rather than what it is.” http://academic.csuohio.edu/polen/LC9_Help/2/25negative.htm. Judge Edmondson does not define misconduct he simply disagrees with every act that alleges misconduct in the complaint is judicial misconduct. Consequently, a negative definition is used to define judicial misconduct out of existence. Chief Judge J.L. Edmondson’s definition, or lack thereof, would suggest that federal judges are held to a lower standard than state court judges. Congress does not help as it chosen not to identify specific acts that it considers to be judicial misconduct for it has abrogated this responsibility and left it up to judges like Judge Edmondson to decide. Section 352 states:

(b) Action by Chief Judge Following Review.— After expeditiously reviewing a complaint under subsection (a), the chief judge, by written order stating his or her reasons, may—
(1) dismiss the complaint—
(A) if the chief judge finds the complaint to be—
(i) not in conformity with section 351 (a);
(ii) directly related to the merits of a decision or procedural ruling; or
(iii) frivolous, lacking sufficient evidence to raise an inference that misconduct has occurred, or containing allegations which are incapable of being established through investigation; or

It is a well known fact that Chief Judges summarily dismiss complaints of misconduct at a rate greater than 90 per cent. This is part of the reason why Justice Stephen Breyer was selected by the then Chief Justice Rehnquist to do a study of the problem. At the urging of Congressman James Sensenbrenner, former Chairman, U.S. House Judiciary Committee, in 2004, a committee was formed (The Judicial Conduct and Disability Act Study Committee) by Chief Judge Rehnquist to study the problem of federal judicial discipline. Judge Edmondson is of the apparent belief that legal error and judicial misconduct are mutually exclusive. As a consequence of this narrow view, Judge Graham can put on his robe and do anything he damn well pleases because “legal error” is not judicial misconduct.

Other Tactics Used by Judge Edmondson

The use of the negative definition tactic is fatal enough by itself to demolish almost all complaints of judicial misconduct. However, Judge Edmondson has used at least three other tactics that augment the negative definition tactic. Judge Edmondson has used:

  • Mischaracterization. Judge Edmondson characterizes your allegations of misconduct and abuse in such a manner that they fit easily within the categories for summary dismissal. For an example, see Complaint No. 05-0011.
  • Omission. Judge Edmondson omits specific allegations of misconduct and abuse from his summary dismissals. For example, in complaint No. 01-0054, Judge Edmondson states: “The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling” and/or ‘Action on the complaint is no longer necessary because of intervening events, and therefore moot”. Consequently, pursuant to 28 U.S.C. § 372(c)(3)(A) and (3)(B) and Addendum Three Rule 4 (a)(2), this Complaint is DISMISSED.”
  • Fails to test allegations of misconduct for veracity. Judge Edmondson does not test allegations of misconduct and abuse for veracity.
  • Failure to Investigate. Judge Edmondson does not investigate allegations of misconduct and abuse. Judge Edmondson does not ask the complainant for more information to support a charge, he simply states that the charge lacks factual support.

Specific examples of the above are set forth below in the “Not Judicial Misconduct” heading. When told of these allegations, Judge Graham’s Chief Judge, S.D. Fla., Federico Moreno offered the following tepid “endorsement”:

I am in receipt of your letter written to me as a Chief Judge of the Southern District of Florida about actions by Judge Donald Graham. In that letter, you also complained about the Chief Circuit Judge J.L. Edmondson. As you can understand one district judge cannot review the actions of another district judge. This rule applies to the Chief Judge of the District as well. It is before the Eleventh Circuit Court of Appeals in Atlanta that any complaint as to a ruling made by a District Judge can be made, I assure you that any decision rendered by Judge Graham was made in good faith upon what he perceived to be the law. Judge Graham has an impeccable reputation. However, if you feel that a judge has erred, the appellate judges in Atlanta are the ones who can decide what to do about it. Thank you for writing.

See Letter dated April 4, 2008.

Judicial Misconduct Complaints

The following complaints have been lodged against Teflon Don.

Not Judicial Misconduct

Judge Edmondson has expressly stated that each of the following documented acts of misconduct are not misconduct under the Act.

  • Lying and Intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction during the entire pendency of the lawsuit from November 1999 to June 20, 2001 or about 19 months.
  • Judge Graham falsely completed a Civil Justice Reform Act Report, “CJRA” to conceal the fact that he had a motion for a preliminary injunction pending for more than 17 months.
  • Usurping authority by allowing a Magistrate, Frank Lynch Jr., to issue preliminary injunctions two times.
  • Usurping authority by allowing a Magistrate to dictate to a non-lawyer that he must seek the permission of private attorneys in order to speak with a local government.
  • Usurping authority by allowing a Magistrate to set restrictions on how Florida Public Records are to be accessed.
  • Allowing scores of motions to go undecided for months.
  • Intentionally misstating material facts in order to render a pre-filing injunction.
  • Disrespecting several well-established Supreme Court decisions proscribing certain acts of Judges.
  • Judge Graham has repeatedly and improperly denied access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions 18 separate times.
  • Judge Graham has been involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction which ultimately formed the basis of a criminal contempt complaint and conviction.
  • Judge Graham used the criminal contempt process to force the withdrawal of a lawsuit.
  • Judge Graham awarded a massive $200,000 in attorney’s fees to Highlands County against an indigent plaintiff, Marcellus Mason, not on the quality of the underlying lawsuit, but based upon Judge Graham’s speculation about Mason’s motive.
  • Judge Graham attempted to circumvent the appellate process by using intimidation.

These allegations and others fully documented at: (1)http://mmason.freeshell.org/CoreAllegations.htm; or (2)Documented Acts of Misconduct by U.S. Dist. Judge Donald L. Graham. As of this date, the Judges at the Eleventh Circuit have allowed Teflon Don to escape rebuke and condemnation as Judge Graham has not been punished in any way for these acts. For example, many of these allegations were mentioned in a direct appeal and simply ignored by the appellate panel, see “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“. Petitions for mandamus met with a similar fate, see for example, Case No. 01-15754, “Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham“. Judge Graham’s behavior easily fits within positively defined definitions of judicial misconduct.

JUDICIAL MISCONDUCT DEFINED

Judicial Misconduct has been defined by Jeffrey M. Shaman, DePaul University Law, Steven Lubet, Professor, Northwestern University Law, James J. Alfini President and Dean, South Texas College of Law, U.S. Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit, in part as:

Judicial action taken without any arguable legal basis —and without giving notice and an opportunity to be heard to the party adversely affected—is far worse than simple error or abuse of discretion; it’s an abuse of judicial power that is “prejudicial to the effective and expeditious administration of the business of the courts.” See 28 U.S.C. § 351(a); Shaman, Lubet & Alfini, supra, § 2.02, at 37 (“Serious legal error is more likely to amount to misconduct than a minor mistake.

See Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/
F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement
.

“[A] judge is guilty of “oppression in office” when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the circumstances and amount to an excessive use of judicial authority.” State v. Colclazier, 2002 OK JUD 1, 106 P.3d 138.

“Where honesty or integrity are at issue, a single action can result in a finding of judicial misconduct.” In re District Judge Ronald F. Kilburn, Case No. 90-478, (Vermont Supreme Court 1991)(citing In re Hill, 152 Vt. 548, 572-75, 568 A.2d 361, 373-75 (1989)). See http://dol.state.vt.us/SUPCT/157/op90-478.txt.

“Canon 3A(5) is violated where there is a pattern of unreasonable delay or where a particular instance is so lacking in legitimate justification that it is willful. See Matter of Long, 244 Kan. 719, 724, 772 P.2d 814, 818 (1989) (Canon 3A(5) violated where delay is “significant, extensive, and unjustified”); Sommerville, 364 S.E.2d at 23 n.3 (sanctions appropriate under Canon 3A(5) where there is a pattern of delay resulting from either willful neglect of, or manifest inability to effectively perform, judicial duties); Matter of Alvino, 100 N.J. 92, 97 n.2, 494 A.2d 1014, 1016 n.2 (1985) (delay can violate Canon 3A(5) if “willful” or “typical of the judge’s work”);” See URL:http://www.libraries.vermont.gov/SUPCT/157/op90-478.txt.

“Legal error and judicial misconduct are not mutually exclusive.” In Re Feinberg, 5 NY3d 206,New York State Commission on Judicial Conduct.

The University of New Mexico, Institute of Public Law, Judicial Education Center, has put together a Judicial Ethics Handbook which defines judicial misconduct.

If Judge Edmondson had an affirmative definition like the ones described above, then Judge Graham would have to disciplined. If the states are able to cite and list specific examples of judicial misconduct, then there is no reason why the federal judiciary can not do the same. To simply say, no that is not misconduct as Judge Edmondson does reflexively, is not enough.

Pending Judicial Misconduct Complaints

It has been said that the Committee on Judicial Conduct and Disability, has become quite serious in investigating federal judges for misconduct. According to law.com, in March of this year, the Judicial Conference adopted the first-ever binding nationwide procedures for handling complaints of judicial misconduct. As a result of this, Mason submitted to complaints to both the Judicial Conference and Judge Edmondson again.

Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?

May 31, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Preface

A district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue, or with Supreme Court Justices writing for a majority of the Court. Binding authority within this regime cannot be considered and cast aside; it is not merely evidence of what the law is. Rather, case law on point is the law. If a court must decide an issue governed by a prior opinion that constitutes binding authority, the later court is bound to reach the same result, even if it considers the rule unwise or incorrect. Binding authority must be followed unless and until overruled by a body competent to do so…A decision of the Supreme Court will control that corner of the law unless and until the Supreme Court itself overrules or modifies it. Judges of the inferior courts may voice their criticisms, but follow it they must.Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001).

“”Thumbing your nose at the U.S. Supreme Court is almost unheard of in the judicial system,” said Kary Moss, ACLU of Michigan Executive Director.” U.S. District Judge Donald L. Graham made a command decision on his own motion to restrict Marcellus M. Mason’s right of access to the courts without giving him due process of law or notice and opportunity’s respond prior to the issuance of a pre-filing injunction on September 20, 2001. This denial represents an apparent snub and disdain for the United States Supreme Court and the Congress. Even more outrageous, is that the Eleventh Circuit, U.S. Court of Appeal, has given its stamp of approval to Judge Graham’s disdain and contempt for the United States Supreme Court. The Eleventh Circuit has made the value judgment that Judge Graham’s career and reputation is more important than the life of a nobody like Marcellus M. Mason Jr. If Judge Graham and his enablers won’t respect the law and the United States Supreme Court then who should?

The Act That Defies the U.S. Supreme Court

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. APPELLATE HISTORY. This injunction is commonly referred to under several different names: “leave to file injunction”, “vexatious litigant injunction”, “pre-filing injunction”, “filing injunction”, “1651 injunction”. This same injunction that was issued without notice and opportunity to respond also makes a “finding of bad faith”. At pages 5 and 6, Judge Graham specifically states:

It has become clear to the Court that Mason is proceeding in bad faith…Such activity is in bad faith and will not be permitted by the Court.

The sua sponte issued pre-filing injunction is unlawful for numerous reasons.

Definition of Willful

WILLFULLY – Committed voluntarily and purposely, with the specific intent to do something; voluntarily and intentionally assisting or advising another to do something that the person knows disobeys or disregards the law. A person does not act “willfully” if the person acts as a result of a good faith misunderstanding of the requirements of the law. See http://www.lectlaw.com/def2/w014.htm

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Premise of This Post

Is Judge Donald L. Graham guilty of willfully defying the orders and opinions of the United States Supreme Court? If the reader wants to believe that Judge Graham is not willfully defying the United States Supreme Court in this case, then the reader will have to necessarily assume that Judge Graham is too stupid to know the law or is not competent. Judge Graham is many things, but not stupid and incompetent. This post will demonstrate that Judge Graham is arrogant and reckless. Defenders of Judge Graham who would say that his behavior has not been willful in this matter would have to make the following assumptions:

  • Well established legal principles that Judge Graham is legally presumed to know the law is not applicable in this matter.
  • Judge Graham, a federal Judge since 1992, has not read or is not otherwise familiar with the Eleventh Circuit’s or any of the other U.S. Circuit Court of Appeals opinions on pre-filing injunctions. Inherent in this assumption, you would also have to include the notion that Judge Graham who has free access to legal research services, Westlaw, Lexis Nexis, and host of free Internet Services such as Lexisone, Findlaw, and others, does not have access to the law. You would also have to assume, incorrectly, that the S.D. Fla. does not have a law library.
  • Judge Graham does not know that the right of access to the courts is constitutionally protected.
  • Judge Graham, a federal Judge since 1992, has not read or is not otherwise familiar with any of the Supreme Court’s many decisions dealing with the right of access to the courts
  • Judge Graham, a federal Judge since 1992, has not read or is not otherwise familiar with any of the Supreme Court’s many decisions dealing with due process.

The Supreme Court Says that A Judgment Issued in Violation of Due Process is Void

“A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821). “’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.”); Carter v. Fenner, at 136 F.3d 1000 (5th Cir. 1998)(“[a] void judgement is one which, from its inception, was a complete nullity and without legal effect.”). “Courts are constituted by authority, and they cannot go beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal.” Valley v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 354 (1920).

Right of Access To Courts is Constitutionally Protected

The right of access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102 (1996). The Supreme court has stated the right of access to the courts also protected by the First Amendment. BE&K Construction CO. v. National Labor Relations Board et al. 536 U.S. 516 (2001)(“the right to petition extends to all departments of the Government,” and that “[t]he right of access to the courts is … but one aspect of the right of petition.”). California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972)(“The right of access to the courts is indeed but one aspect of the right of petition.“). See Tennessee v. Lane, 541 U.S. 509 (2004)(recognizing “the fundamental right of access to the courts”); Procunier v. Martinez, 416 U.S. 396 (1974)(“The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights.“).

Proof No. 1

A judge is legally presumed to know the law. U.S. v. HUMPHREYS (11th Cir. 1992). “Trial judges are presumed to know the law…” WALTON v. ARIZONA, 497 U.S. 639 (1990). The Eleventh Circuit and other courts are quick to assert this fact when a judge does not affirmatively address an aspect of law in a decision or opinion. Given this presumption, there is no reason not to apply it to this situation.

Proof No. 2

The best evidence that Judge Grahams knows that the right of access to the courts is constitutionally protected is Judge Graham’s own writing in the very sua sponte issued prefiling injunction of September 20, 2001. In this order, Teflon Don states:

This screening requirement best balances the interest in constitutionally mandated access to the federal courts with the need to protect the Court’s jurisdiction and integrity.

See pg. 7, Docket No. 878, (D.E. #878).

The U.S. Supreme Court,”SCOTUS”, On the Importance of Due Process

“Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ of which the Court speaks can be won only if judges honor the Constitution.” Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting). “Due process is perhaps the most majestic concept in our whole, constitutional system.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 174 (1951) (Justice Frankfurter, concurring). It is ingrained in our national traditions, and is designed to maintain them. In a variety of situations, the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution.” id. 161. “Fairness of procedure is “due process in the primary sense.” Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 281 U. S. 681. In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Proof No. 3

Judge Graham knows that a constitutionally protected right is subject to due process. RODRIGUEZ v US, 169 F.3d 1342 (11th Cir. 1999) was a case about due process in which Judge Donald L. Graham presided over at the district court level, Case No. 97-1182-CV-DLG. See Findlaw.com, vlex.com. RODRIGUEZ cites Mathews v. Diaz, 426 U.S. 67 (1976)(“all persons, aliens and citizens alike, are protected by the Due Process Clause). It is crystal clear that Judge Graham knows of the Supreme Court’s definition and affinity for due process. Even more compelling evidence that Judge Graham knew the law is Judge Graham’s own writings. At pages 6 and 7, of the sua sponte issued pre-filing injunction, (DE #878), Judge Graham cites three cases for his nefarious deeds: Copeland v. Green, 949 F.2d 390 (11th Cir. 1991); Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986)(en banc)); Cofield v. Alabama Pub. Serv. Comm’n, 936 F.2d 512, 518 (11th Cir. 1991). In Copeland v. Green, 949 F.2d 390 (11th Cir. 1991) the court lays out the procedure followed by the trial court or district court prior to issuing a pre-filing injunction. In Copeland, the court noted: “The district court entered an order requiring Copeland to appear and show cause why he should not be sanctioned for this abuse of his access to the court.” It is quite clear that the litigant in Copeland received notice and opportunity to respond prior to the issuance of the pre-filing injunction. Judge BARD TJOFLAT’s dissent in Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986)(en banc)), “The district court, noting the volume and nature of Procup’s previous litigation, issued an order to show cause why an injunction should not issue prohibiting Procup from filing any further pleadings in the district court.” Lastly, in Cofield v. Alabama Pub. Serv. Comm’n, 936 F.2d 512, 518 (11th Cir. 1991) the court noted that “the district court, sua sponte, issued an order to show cause asking why Cofield should not be sanctioned for his overly litigious behavior.” What better evidence of willfulness than Judge Graham’s own writings!

Proof No. 4

Judge Graham presided over Damiano v. Federal Deposit Insurance Corporation, 104 F.3d 328 (11th Cir. 1997) in S.D. Fla. Case No. 90-8415 CIV-DLG. See Findlaw.com. This case in no small part addresses itself to due process and the Supreme Court’s landmark case on the sufficiency of due process, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317-20 , 70 S.Ct. 652, 658-60, 94 L.Ed. 865 (1950). This opinion expressly cites Mullane. Consequently, it can not be argued that Judge Graham is not aware of the requirements of due process unless you assume that Judge Graham does not read his own cases.

Proof No. 5

Judge Graham played to what he thought was ignorance on the part of Marcellus Mason. Judge Graham cites a host of different cases to support the idea that he can restrict the filings of a litigant. Judge Graham is very slick and he knew that Mason had acquired the ability to do legal research when he rendered the sua sponte issued pre-filing injunction, consequently Judge Graham made a conscious decision not to cite any any of the cases listed below that deal specifically with pre-filing injunctions . The cases cited by Judge Graham do not address pre-filing injunctions specifically. Peck v. Hoff, 660 F.2d 371 (8th Cir. 1981) is concerned with procedures for denying in forma pauperis. Incidentally, Judge Graham has defied the U.S. Supreme Court by defying in forma pauperis motions on some 18 occasions by refusing to offer a legally sufficient reason for these denials. See this site, post “Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts“. In re McDonald, 489 U.S. 180, 184 n.8 (1989), this citation stands for the proposition of inherent power generally and not the procedures in involved in invoking “inherent power”. Martin Trigona v. Shaw, 986 F.2d 1384, 1387 (11th Cir. 1993) this case deals with the authority to issue a pre-filing injunction, but not with the procedures for imposing an injunction, Cope v. Green, 949 F.2d 390 (11th Cir. 1991), Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986)(en banc)) ,

Proof No. 6

Judge Graham claims that he has inherent power to render a pre-filing injunction. See pgs. 6,7 (D.E. #878). The United States Supreme Court has stated:

A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.” (emphasis added) Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991). Are we to believe that a federal judge who relies upon “inherent power” to issue an order is unaware of Supreme Court’s Chambers opinion? At the latest, Judge Graham would have became aware of Chambers would have been on October 16, 2002 when the Eleventh Circuit rendered their opinion and actually cited Chambers. See Appeal From Hell Opinion, pg. 10. As stated above, this appeal is joke and an exercise in artifice and dishonesty. See “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“. What has stopped Judge Graham from coming forward and admitting error?

Proof No. 7

Judge Graham has had numerous filings and documents since the institution of the sua sponte issued pre-filing injunction of September 20, 2001 that expressly quotes and cites the United States Supreme Court and others, but yet Teflon Don has been intransigent and has sat on his ass and did nothing. One of these filings was a judicial misconduct complaint, 05-0011 that was submitted January 31, 2005. This complaint specifically mentions Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991). On or about February 5, 2005, Judge Graham received a Petition for Writ of Mandamus in Eleventh Circuit Case No. 05-10623 that specifically mentions Chambers and a host of other legal authorities setting forth the due process requirements involved in issuing pre-filing injunctions. See pages 8-10, Petition for Writ of Mandamus. On or about February 13, 2004, Judge Graham received a Petition for Writ of Mandamus in Eleventh Circuit Case No. 04-11894 that specifically mentions Chambers and a host of other legal authorities setting forth the due process requirements involved in issuing pre-filing injunctions. See pages 11-15, Mandamus Petition. Judge Graham is in possession of a letter that mailed to him on May 3, 2008 that specifically sets forth Supreme Court requirements with respect to due process and the right of access to the courts and as of this date, May 31 2008, Judge Graham has refused to comply with the decisions and orders of the Supreme Court. On September 7, 2002, Judge Graham received a “MOTION TO PROCEED IN FORMA PAUPERIS AND SUPPORTING AFFIDAVIT, PLAINTIFF’S MOTION TO DISQUALIFY, PLAINTIFF’S DEMAND TO RESCIND INJUNCTION FORTHWITH, AND PLAINTIFF’S MOTION FOR PUBLICATION“, (D.E. 914). At pages 10-14, this motion specifically sets forth the legal requirements for issuing a pre-filing injunction and for invoking the “inherent power” of the court according to the United States Supreme Court. On January 31, 2003, Judge Graham rejected the authority of the United States Supreme Court. See (D.E. #928).

Enabling Acts of the Eleventh Circuit

Judge Graham and his enablers at the Eleventh Circuit, U.S. Court of Appeal see nothing wrong with Judge Graham disrespecting the United States Supreme Court. In what can only be described as a pure act of artifice and dishonesty, the Eleventh Circuit struck Marcellus M. Mason’s brief in a direct appeal, Case No. 01-13664, for arguing that the sua sponte issued pre-filing injunction of September 20, 2001 was not lawful because they said it was “beyond the scope of appeal”; however, when the Eleventh Circuit decided the appeal it then used the same sua sponte issued pre-filing injunction of September 20, 2001 to affirm Judge Graham. Equally remarkable is the fact that the Eleventh Circuit was quite unwilling to pass on the validity of this very same sua sponte issued pre-filing injunction of September 20, 2001. See full story at “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“. This a remarkable opinion that mocks the idea of “judicial independence”.

Judge Graham criminalized his own his disrespect and contempt for the United States Supreme Court by making the same sua sponte issued pre-filing injunction of September 20, 2001 the subject of a criminal contempt complaint. The Eleventh Circuit knew of this concocted criminalization and disdain for the United States Supreme Court by Teflon Don, but yet it sat idly by and did nothing while the clearly void sua sponte issued pre-filing injunction of September 20, 2001 being used to persecute and oppress Marcellus Mason. The Eleventh Circuit has deployed acts of artifice and dishonesty to avoid reviewing the sua sponte issued pre-filing injunction of September 20, 2001 for validity. See post this site, “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life“.

Case Law On Pre-Filing Injunctions

US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED “SUA SPONTE” PRE-FILING INJUNCTIONS.

A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. 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 ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.”) ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court’s order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”).

Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4th Cir. 2005); Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987).

Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal!

May 28, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Point of This Post

The Purpose of this post is to set forth yet another extreme measure that the Eleventh Circuit deployed in order to conceal and shield U.S. Dist. Judge Donald L. Graham from public rebuke and scrutiny. The law clerks or staff attorneys who decide cases at the Eleventh Circuit, U.S. Court of Appeals are making a joke and a mockery of our legal system. This posting discusses a single element of the Eleventh Circuit’s, U. S. Court Appeal Case No. 01-13664-A, an unpublished opinion. This is appeal has been described as: Eleventh Circuit Case No. 01-13664: The Appeal From Hell. This appeal, Case No. 01-13664-A, is loaded with the stench of dishonesty and lawlessness; however, this post will only analyze the single issue of jurisdiction of the lower court, trial court, or district court during the appeal. This posting will show that the Eleventh Circuit used an unpublished opinion to get the desired outcome, affirming Judge Graham, notwithstanding the law and the facts. The Eleventh Circuit took for itself the right to maintain two irreconcilable, inconsistent, and illogical legal positions. First it rightly claimed that an order, pre-filing injunction, rendered on September 20, 2001, Doc. 878, or three months after the notice of appeal was filed on June 25, 2001 was beyond the scope of appeal . See post, “Putrid Dishonesty:Beyond the Scope of Appeal“. Secondly, the inconsistency arose when the Eleventh Circuit rendered its opinion in October 2002, it then used the very same pre-filing injunction, rendered on September 20, 2001 that it claimed was beyond the scope of appeal to affirm Judge Graham. The Eleventh Circuit had it both ways. The reason for this inconsistency is that the Eleventh Circuit badly needed this order included in order to make a finding pursuant to Rule 41(b), Federal Rules Civil Procedure.

The icing on the cake and even worse and more dishonest than the taking of two inconsistent legal positions is the fact that the pre-filing injunction, rendered on September 20, 2001, Doc. 878, is actually illegal. At page 3 of the pre-filing injunction of September 20, 2001, Doc. 878, it expressly states: “THIS CAUSE came before the Court sua sponte. ” Sua Sponte issued pre-filing injunctions, or pre-filing injunctions issued without notice and opportunity to respond are routinely rejected as a matter of course. Pre-filing injunctions implicate the right of access to the courts, even Teflon Don recognizes this fact. See pg. 7, Doc. 878, (“This screening requirement best balances the interest in constitutionally mandated access to the federal courts with the need to protect the Court’s jurisdiction and integrity.“). Judge Graham is expressly rejecting the authority of the United States Supreme Court who has said on multiple occasions that the right of access to the courts is constitutionally protected and requires due process before that right is abridged or restrained in any manner.

Recap

The Eleventh Circuit, using the device of an unpublished opinion, did the following:

  1. It declared the sua sponte issued pre-filing injunction of September 20, 2001 beyond the scope of appeal and struck Mason’s appellate brief because of it in March 2002. See post, “Putrid Dishonesty:Beyond the Scope of Appeal“.
  2. On October 16, 2002, when the Eleventh Circuit rendered its unpublished opinion, it then included the sua sponte issued pre-filing injunction of September 20, 2001 in its decision.
  3. The Eleventh Circuit used a clearly invalid sua sponte issued pre-filing injunction to justify its goal of affirming Judge Graham.

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.

The Opinion

The Eleventh Circuit rendered its opinion in Case No. 01-13664 on October 16, 2002. The Opinion makes the following “finding”:

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.

This finding is a direct reference to a pre-filing injunction or vexatious litigant injunction rendered by Judge Graham on September 20, 2001. See below.

The Sua Sponte Issued Pre-Filing Injunction

Plaintiff Marcellus M. Mason is Permanently enjoined
from filing any additional pleadings in case numbers 99-14027- CIV-GRAHAM, 00-14116-CIV-GRAHAM, 00-14201-CIV-GRAHAM, 00-14202- CIV-GRAHAM, 00-14240-CIV-GRAHAM, 01-14074-CIV-GRAHAM, 01-14078- CIV-GRAHAM, and 01-14230-CIV-GRAHAM or from filing any new lawsuit which relates in any way to Plaintiff Marcellus M. Mason’s former employment and/or subsequent interactions with Defendants without first receiving permission from the Court, as set forth below. This injunction shall apply equally to any persons or entities acting at the behest, direction, or instigation, or in concert with Marcellus M. Mason.

See Doc. 878, pg. 8.

Law On Jurisdiction During Appeal

According to the published decisions of the Eleventh Circuit: “It is the general rule of this Circuit that the filing of a timely and sufficient notice of appeal acts to divest the trial court of jurisdiction over the matters at issue in the appeal, except to the extent that the trial court must act in aid of the appeal.” SHEWCHUN v. United States, 797 F.2d 941 (11th Cir. 1986). “It is well-settled law that the filing of a notice of appeal divests the district court of jurisdiction over a case.” WEAVER v. FLORIDA POWER & LIGHT COMPANY, 172 F.3d 771,(11th Cir. 1999)(citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982)). “The general rule regarding divestiture of jurisdiction, however, does not apply to collateral matters not affecting the questions presented on appeal.” id.

“The district court’s exercise of jurisdiction should not “materially alter the status of the case on appeal.” Mayweathers v. Newland , 258 F.3d 930 (9th Cir. 2001).

Given the above definition, if the sua sponte issued pre-filing injunction, Doc. 878, is involved in the appeal then Judge Graham would not have jurisdiction to enter an order pertaining to “questions presented on appeal”. At pages 13, 14, of the opinion the sua sponte issued pre-filing injunction was clearly involved in the appeal as it used to justify a dismissal of the case under Rule 41(b), Fed.R.Civ.P.; Consequently, Judge Graham was without jurisdiction to render the order. You can’t on the one hand argue that an order, the sua sponte issued pre-filing injunction of September 20, 2001 is a “collateral issue” and beyond the scope of appeal on March 6, 2002, and then turnaround on October 16, 2002 and include the very same sua sponte issued pre-filing injunction of September 20, 2001 to affirm Judge Graham. Incidentally, as documented below the sua sponte issued pre-filing injunction of September 20, 2001 is clearly invalid.

Subsequent Decisions are Equally Dishonest

A petition for mandamus was filed on or about April 19, 2004. On May 20, 2004, the Eleventh Circuit stated:

In Mason’s case, he filed a notice of appeal as to the dismissal of his civil case. The September 20, 2001 order did not relate to the issue on appeal, but instead enjoined Mason from filing any further pleadings in the district court without permission. Because the order related to collateral issues, the district court had jurisdiction to issue it.

How can an issue, the sua sponte issued pre-filing injunction of September 20, 2001, be a “collateral issue” and used in the opinion at the same time? If it is a
“collateral issue” then how it an integral part of the appeal and the opinion at the same time as demonstrated above?
See Opinion Case No. 04-11894. Incredibly, this “opinion” makes the following admission:

This Court granted, in part, the appellees’ motion to strike Mason’s brief, holding that the portions of the brief that related to the September 20, 2001 order were beyond the scope of appeal.

This type of dishonesty simply cannot be tolerated in a free society as it is offensive and insulting.

Quick Facts

This appeal was docketed under Eleventh Circuit Case No. 01-13664. The Notice of Appeal was filed on June 27, 2001. See Docket No. 795. This was an appeal from a Rule 41(b), Fed.R.Civ.P. dismissal by Judge Graham in district court Case No. 99-14027-CIV-Graham/Lynch. Judge Donald L. Graham, “Teflon Don”, failed to make the explicit finding that “lesser sanctions would not suffice“. Incidentally, Judge Graham’s colleague at the S.D. Fla., failed to make the same finding that “lesser sanctions would not suffice” but was reversed by the Eleventh Circuit. See posting this site, “Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal

On June 20, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:
[I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…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.” See Docket Entry No. 201

On July 25, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

ORDERED AND ADJUDGED that Defendants’ Renewed Motion for Preliminary Injunction is GRANTED… Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.” See Docket Entry No. 246.

Highlands County asked and got Judge Graham to dismiss a lawsuit because of alleged violations of these orders, which Mason contended on appeal, were illegal. (For a completely different story and more dishonesty see how the Eleventh Circuit was willing to discuss Mason’s alleged violations of these orders while steadfastly refusing to review these very orders for validity, see posts, “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity” and “A Federal Magistrate May Issue An Injunction So Long As He Does Not Call it An Injunction ” Highlands County filed two motions for sanctions in the form of dismissal of the plaintiff’s lawsuit. Docket Entry Nos. 511 and 646. These motions depicted out of court communications between Highlands County and the Plaintiff, Marcellus Mason. Judge Graham and his Magistrate granted these motions and dismissed the case on June 20, 2001. See Docket Entry Nos. 766 an and 791.
The following alleged out of court lawful communications were used to dismiss the lawsuit.

  • “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.
  • They stated that, on 13 and 14 February 2001, 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, pgs. 4-5.
  • 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.
  • On 6 April 2001, Heartland again moved for sanctions in the form of dismissal because Mason had “repeatedly personally contacted [by e-mail] supervisory employees and/or individual Defendants” in the case since the magistrate judge’s 27 March order. See Opinion, pg. 6.

Legal Requirements For a Fed.R.Civ.P. 41(b) Dismissal

The Eleventh Circuit “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.” World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995). “A district court has authority under Federal Rules of Civil Procedure 41(b) to dismiss actions for failure to comply with local rules.” id..

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.

——————–SCOPE OF APPEAL LINE JUNE 25, 2001——————————-

—————–BEYOND THE SCOPE OF APPEAL LINE JUNE 26,2001———————–

=====================================================================

Beyond the Scope of Appeal

On September 20, 2001, Judge Graham rendered a pre-filing injunction sua sponte, or own his motion and without notice and opportunity to respond which is a violation of due process. Docket No. 878. The validity of this sua sponte pre-filing injunction is not the point of this posting, however ample case law against its validity is set forth in http://mmason.freeshell.org/SuaSponte.htm#caselaw.

Right of Access To Courts is Constitutionally Protected

The right of access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102 (1996). The Supreme court has stated the right of access to the courts also protected by the First Amendment. BE&K Construction CO. v. National Labor Relations Board et al. 536 U.S. 516 (2001)(“the right to petition extends to all departments of the Government,” and that “[t]he right of access to the courts is … but one aspect of the right of petition.”). California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972)(“The right of access to the courts is indeed but one aspect of the right of petition.“). See Tennessee v. Lane, 541 U.S. 509 (2004)(recognizing “the fundamental right of access to the courts”); Procunier v. Martinez, 416 U.S. 396 (1974)(“The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights.“).

Orders Issued Inconsistent With Due Process Are Void

A judgment is void if the rendering court acted in a manner inconsistent with due process of law. Wright & Miller, Federal Practice and Procedure § 2862. “A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.” World-Wide Volkswagen Corp. V. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821). “’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). Generally, a judgment is void under Rule 60 (b) (4) if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if acted in a manner inconsistent with due process of law. E.g., s Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001); U.S. v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 1990);Beller & Keller v. Tyler, 120 F.3d 21, 23 (2nd Cir. 1997); Union Switch & Signal v. Local 610, 900 F.2d 608, 612 n.1 (3rd Cir. 1990); Eberhardt v. Integrated Design & Const., Inc. 167 F.3d 861, 867 (4th Cir. 1999); New York Life Ins. Co. v. Brown 84 F.3d 137, 143 (5th Cir. 1996)

Supreme Court’s Emphasis on Due Process

In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Case Law Against

Case Law On Pre-Filing Injunctions

US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED “SUA SPONTE” PRE-FILING INJUNCTIONS.

A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. 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 ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.”) ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court’s order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”).

Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4th Cir. 2005); Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987).

US Circuit Judge Ed Carnes Undermines U.S. Supreme Court By Imposing Hobson’s Choice

May 23, 2008

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

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.

Purpose of this Post

This post will take an Opinion of Judge Ed Carnes and demonstrate that he nefariously contorted the law and facts in order to achieve the desired outcome. The desired outcome was a vindication of Judge Donald L. Graham by any means necessary. Judge Carnes ruled that a Magistrate’s designation of his own order is controlling on an U.S. Circuit Court of Appeal. The purpose of this post is to:

  • To establish the opinion in this post as a part of an overall pattern and practice of lawlessness.
  • To set forth facts to prove that there is two bodies of law. The “rule of law” as set forth in published opinions and a secret underground body of law set forth in unpublished opinions that have little or nothing to do with the “rule of law”.
  • To show that a Circuit Court Judge will contort the law beyond common sense and even to absurdity in order to achieve the desired outcome.
  • To show the extreme measures federal judges will employ to protect each other.
  • To show how pervasive dishonesty is among the federal judiciary.
  • To help make the argument that “judicial independence” equals judicial non-accountability.
  • To show how a judge can fit the “facts” and the law 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.
  • To show that a United States Circuit Judge can take the enactments of the U.S. Congress and the decisions of United States Supreme Court and reduce them mere meaningless pieces of paper.

Preliminary Injunctions or Orders at Issue

On June 13, 2000, Maria Sorolis, Allen, Norton & Blue, attorney for Highlands County Board of County Commissioners and Heartland Library Cooperative, filed a motion entitled “DEFENDANTS’ MOTION FOR PRELIMINARY INJUNCTION“. See Docket Entry 199. This motion expressly states the following:

  • “undersigned counsel and each of them 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.”
  • “WHEREFORE, Defendants move the Court for an injunction prohibiting Plaintiff from contacting any of the Defendants and/or their supervisory employees,..”

This motion was quickly granted on June 19, 2000. it took the Magistrate just six days or less if mail time is included to grant this motion. On June 19, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

[I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…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.

See Docket Entry No. 201. Incidentally, this order clearly violates Mason’s rights to respond to a motion under Local Rule 7.1.C which states: “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.

On July 6, 2000, Maria Sorolis filed a motion entitled “DEFENDANTS’ RENEWED MOTION FOR PRELIMINARY INJUNCTION.” See Docket Entry No. 231. Moreover, the motion specifically asks for the following:

  • “Highlands County Board of County Commissioners, Heartland Library Cooperative, Fred Carino, and Mary Myers, by and through their undersigned counsel, and regrettably renew their Motion to the Court for entry of a Preliminary Injunction against the Plaintiff in this matter, “”
  • “WHEREFORE, Defendants respectfully renew their Motion for a Preliminary Injunction prohibiting the Plaintiff from contacting the supervisory employees of the Defendants or the individual Defendants directly, and directing Plaintiff to make all public records requests through the undersigned counsel”

On July 25, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

ORDERED AND ADJUDGED that Defendants’ Renewed Motion for Preliminary Injunction is GRANTED… Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.”

See Docket Entry No. 246. 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.

Hobson’s Choice

Merriam-Webster has defined a hobson’s choice as:
1 : an apparently free choice when there is no real alternative
2 : the necessity of accepting one of two or more equally objectionable alternatives

On April 26, 2001, Judge Ed Carnes asserted:

“With 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. He 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 Censtr. Corp., 680 F.2d 743, 745 (11th Cir. 1982).

This is a classical hobson’s choice as Judge Ed Carnes presented Mason with two equally objectionable alternatives:

  • Lose his First Amendment right to petition the government directly during the pendency of the lawsuit; or
  • Fail to comply with a court order and risk contempt and a dismissal of an employment discrimination lawsuit.

Judge Carnes view of the law, according to Judge Carnes own previously and subsequently opinions for which he was panel member, is incorrect and not sustainable under the “rule of law”. The orders in question are reviewable immediately for three reasons:

  • The orders are both de facto and de jure injunctions.
  • The orders have the “practical effect” of being injunctions. The U.S. Supreme Court has stated that orders have the “practical effect” of being injunctions are immediately reviewable.
  • The orders, notwithstanding any label, cause irreparable harm according to the United States Supreme Court and Judge Carnes own writings.

Constitutional Right to Petition the Government

“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.” First Amendment, US Constitution.

Right To Interlocutory Appeal

28 U.S.C.§ 1292(a)(1) states:

(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;

“Certain orders that are not final in the sense of ending the litigation on the merits are immediately appealable under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). To come within this doctrine, an order “must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” CORPORATE RISK MANAGEMENT CORPORATION v. SOLOMON, 936 F.2d 572 (6th Cir. 1991). It is difficult to imagine how you can get back First Amendment rights once you have lost them at the end of trial whose date is indeterminate.

With respect 1292(a)(1), the Eleventh Circuit has “construed the statute narrowly to ensure that appeal as of right under Sec. 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of “permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.” Baltimore Contractors, Inc. v. Bodinger, [348 U.S. 176,] 181, 75 S.Ct. [249,] 252[, 99 L.Ed.2d 233 (1955) ]. Unless a litigant can show that an interlocutory order of the district court might have a “serious, perhaps irreparable, consequence,” and that the order can be “effectually challenged” only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal.”CABLE HOLDINGS OF BATTLEFIELD, INC. v. COOKE, 764 F.2d 1466 (11th Cir. 1985).

Absurdity

Judge Carnes’ opinion evinces absurdity and is contrary to law. Inherent in Judge Carnes opinion is the inane notion that a United States Circuit Court of Appeal is bound by a Magistrate’s designation of a “discovery order” and may not review the substance of that order to determine for itself if the “discovery order” is in fact an injunction. If this true, then a Magistrate can issue an injunction and escape appellate review by simply calling an injunction something other than an injunction. “[T]the name which the judge gives the order is not determinative”. Geneva Assur. v. Medical Emergency Services, 964 F.2d 599 (7th Cir. 1992). Judge Carnes was a member of the appellate panel that concluded that “where the order has the effect of a preliminary injunction this court has jurisdiction to review the order and is not bound by the district court’s designation of the order.” See Cuban American Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995). More importantly, In Sampson v. Murray, 415 U.S. 61 (1974) the Supreme Court expressly rejected this line of contorted reasoning:

“A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over tie parties in all injunctive proceeding.”

Irreparable Harm

The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.Elrod v. Burns, 427 U.S. 347, 373 (1976). Judge Marcus himself, in a published decision, has stated: “Regarding irreparable injury, it 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, CITY OF, 458 F.3d 1261; 2006 U.S. App. LEXIS 19901; 19 Fla. L. Weekly Fed. C 902 (11th Cir. 2006)(citing Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976) (plurality opinion)).

“An order has the practical effect of granting injunctive relief within the meaning of section 1292(a)(1) if it is directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint,(internal citations and quotations omitted), and if the appealing party demonstrates serious, perhaps irreparable, consequences”. HBE LEASING CORPORATION v. FRANK,48 F.3d 623 (2nd Cir. 1994). Using Judge Carnes own words, above, the orders would possibly subject Mason to contempt of court charges, “challenge its validity if cited for contempt.”

According to the Supreme Court, an order that has practical effect of denying or granting an injunction iis immediately appealable if a “litigant can show that an interlocutory order of the district court might have a “serious, perhaps irreparable, consequence,” and that the order can be “effectually challenged” only by immediate appeal,…”Carson v. American Brands, Inc., 450 U.S. 79 (1981).

The Ultimate Act of Dishonesty

The ultimate act of dishonesty was that Judge Graham dismissed a lawsuit based upon alleged violations of the injunctions enumerated above and the Eleventh Circuit refused to review these orders for validity. Highlands County asked and got Judge Graham to dismiss a lawsuit because of alleged violations of these orders, which Mason contended on appeal, were illegal. To further illustrate the exreme measures deployed to vindicate Judge Graham personally and more dishonesty see how the Eleventh Circuit was willing to discuss Mason’s alleged violations of these orders while steadfastly refusing to review these very orders for validity, see posts, “Eleventh Circuit Case No. 01-13664: The Appeal From Hell” and “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“). Highlands County filed two motions for sanctions in the form of dismissal of the plaintiff’s lawsuit. Docket Entry Nos. 511 and 646. These motions depicted out of court communications between Highlands County and the Plaintiff, Marcellus Mason. Judge Graham and his Magistrate granted these motions and dismissed the case on June 20, 2001. See Docket Entry Nos. 766 an and 791. The following alleged out of court lawful communications were used to dismiss the lawsuit.

(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).

(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)

Judge Graham Uses Act of Cowardice Hides Behind Dresstail of Court Reporter To Intimidate Litigant!

April 21, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham

What this Posting Will Prove

Judge Graham attempted to use intimidation in order to prevent Marcellus Mason from appealing arbitrary denials of Rule 60(b), Fed.R.Civ.P. motions. In order to accomplish this task Judge Graham scheduled a “Status/Motion Hearing” with AUSA Robert Waters and U.S. Probation required to be at a civil hearing. Mason was on probation at the time. However, Judge Graham did not think his hearing was important enough to reduce his ‘rants’ to writing, he opted instead to hide behind the dresstail of a court reporter and have her write some account of the hearing. See Document No. 934. Apparently, Judge Graham does not know, or more likely does not care that: “Even after a judgment has become final and even after an appeal has been lost, Civil Rule 60(b) gives losing parties additional, narrow grounds for vacating the judgment.” GenCorp, Inc. v. Olin Corporation, 477 F.3d 368;2007 U.S. App. LEXIS 3102 (6th Cir., 2007). Moreover, there is no time limit bringing a Rule 60(b)(4) motion. See HERTZ CORP. v. ALAMO RENT-A-CAR, INC., 16 F.3d 1126 (11th Cir. 1994).

Background

In District Case No. 99-14027-CIV-GRAHAM, Marcellus M. Mason, Jr. v. Highlands County Board of County Commissioners, Judge Graham rendered a “vexatious litigant order”, “pre-filing order”, “pre-filing injunction”, “filing injunction”, “leave to file” injunction, sua sponte on September 20, 2001. See Page 3, Docket Entry Number 878, (D.E. # 878) . This document boldly asserts: THIS CAUSE came before the Court sua sponte. Sua Sponte meaning on the courts’ own motion and without a request from any party. It is well settled and black letter law that sua sponte issued pre-filing injunctions rendered without notice and opportunity to respond, “due process”, are clearly void. See Case Law Authority. One of the terms of this clearly void sua sponte issued pre-filing injunction is:

3. Any request for permission to file additional pleadings in the above captioned cases already before the Court SHALL be in the form of an application filed with the Clerk of Court and addressed to United States District Judge Donald L. Graham. This application shall consist of a one paragraph explanation of the requested relief in the proposed pleading, and shall not exceed one page. The application shall not include the proposed pleading.

See Page 9, Docket Entry Number 878, (D.E. # 878). Incidentally, Mason has challenged this clearly void sua sponte issued pre-filing injunction on what has to be a world record number of times; however, the Eleventh Circuit has declined to reach the merits of this sua sponte issued pre-filing injunction by asserting all manner of procedural arguments. See Futile Appellate Review Attempts. As a matter of fact, the denials are not consistent and even contradict each other on each successive attempt at appellate review. Even an ardent supporter of the system would have a hard time arguing that there is not a certain amount of dishonesty involved in the matter. For a really egregious example of this dishonesty, see this site page, “Putrid Dishonesty:Beyond the Scope of Appeal“. Judge Graham is truly the “Teflon Don” because none of his misconduct sticks to him. See this site postings “Documented Acts of Misconduct by U.S. Dist. Judge Donald L. Graham” and “Chief Judge J.L. Edmondson Aggressively Defends Judge Donald L. Graham

Alleged violations of this clearly void sua sponte issued pre-filing injunction formed the basis of a criminal contempt information and conviction in this matter. Essentially, Judge Graham and AUSA Robert Waters concocted a crime and framed an innocent man using the enormous power of the U.S. Government. See Framed and Wrongful Conviction. Mason was sentenced to five years probation on this concocted charge and was sentenced to the following special terms in addition to the standard terms of probation:

  • Mental Health counseling.
  • Prohibited from using the Internet. The government and AUSA Robert Waters asked for this term to stop criticism of Judge Graham on the Internet. See this site’s posting, “Power of US Government Used To Suppress Criticism of U.S. Dist. Judge Graham” This term was particularly offensive because Mason made his living off the Internet, being a MCSE and Microsoft Certified Systems Engineer, and CNE, Certified Novell Engineer.

    One Page Request to File Pleading

    On December 16, 2004, pursuant to the terms of the sua sponte issued pre-filing injunction, Mason filed a one page letter seeking permission to file a Fed.R.Civ.P. Rule 60(b)(4) motion to disqualify Judge Graham. See Document No. 932. This one page letter stated that Judge Graham should have disqualified because he had, among other things, lied and intentionally misrepresented the law. On appeal, the Eleventh Circuit had “forgot” or “overlooked” the issue of whether Judge Graham should have disqualified or not. See post this site, “Does A Mere Clause In a Sentence Represent Meaningful Appeal?” Incidentally, when the Eleventh Circuit and Judge Stanley F. Birch, Jr. and in particular, was told on a motion for rehearing that they “overlooked” the issue of whether or not Judge Graham should have disqualified, the Eleventh Circuit simply stated: “The petition(s) for rehearing filed by Appellant, Marcellus M. Mason, Jr., is DENIED“. See Order. On January 9, 2005, Judge Graham issued what he termed a “NOTICE OF HEARING”. See Document No. 933. Judge Graham claimed that it was supposed to be a “Status/Motion Hearing” set for January 14, 2005. Notwithstanding the fact that this was a civil case, Judge Graham ‘invited the following people: Frank Smith, U.S. Probation Office, Lynn Waxman, Appellate Attorney, and Assistant U.S. Attorney Robert Waters. It is fair to say that in Judge Graham’s mind this “NOTICE OF HEARING” is important.

    The “Status/Motion Hearing”

    The “Status/Motion Hearing” was indeed held on January 14, 2005. There was no discussion of the merits of the impending motion or request to file a motion. Exactly what role would AUSA Robert Waters and Frank Smith, U.S. Probation, play in a civil matter? Judge Graham said the matter is over. Mason asked Judge Graham was he prohibiting the filing of a Fed.R.Civ.P. Rule 60(b)(4)? Judge did not answer the question directly. He kept expressing his apparent personal opinion and desire for the matter to be over. Judge Graham exclaimed: “The Eleventh Circuit denied your appeal!” Judge Graham did not reduce any of his barking of commands to writing; instead he had his court reporter, C. Horenkamp, file an unsigned piece of paper called a ‘Civil Court Minutes’ on January 18, 2005. See Document No. 934. It appears that Judge Graham was attempting to “sua sponte” modify the sua sponte issued pre-filing injunction of September 20, 2001. Until now, Judge Graham has declined to put his “commands” in writing. However, an open letter to Judge Graham has been posted to this site explaining, with case law, to Judge Graham that orders and/order injunctions must be reduced to writing. See this site posting, “Open Letter to Judge Donald L. Graham Dated April 3, 2008“. Additionally, Judge Graham was sent a letter directly to chambers. It is clear that Judge Graham is attempting bully Mason into submission without reducing his “commands” to writing where they can be documented, archived, and appealed. Judge Graham is clearly trying to circumvent the appellate process. Judge Graham wants to have it both ways in that he wants deny access to the courts by Mason, but he is not man enough to put it in writing! Man up! Judge Graham has no compunction about violating the ‘rule of law’.

Chief Judge J.L. Edmondson Aggressively Defends Judge Donald L. Graham

April 17, 2008

Judge Donald L. GrahamJudge Donald L. Graham

Foreword

There’s an old Negro spiritual called “May the Work I’ve Done Speak for Me”. In this same spirit, this author allows the work of Chief Circuit Judge J.L. Edmondson and his cohorts to speak for them. Unlike, Judge Graham and his enablers, their work will not be characterized or mis-characterized it will be produced in full and publicly available for the reading public to make their own assessments. The record fully supports the idea that Judge Edmondson and his colleagues at the Eleventh Circuit, U.S. Court of Appeals have defined the concept of “judicial misconduct” out of existence. Moreover, the record here will reveal that Judge Edmondson and his colleagues will not mention the allegations of misconduct raised against Judge Graham, much less test them for veracity.

What To Focus On

  • The allegations of misconduct are not denied.
  • The allegations of misconduct are rarely mentioned.
  • The Allegations of misconduct were ignored in the appellate process
    • Usurping Legal Authority
    • Refusing to Rule on a motion for a preliminary injunction
    • Allowing Scores of Motion to Languish
    • Judge attempted to arrogate his own authority by ordering the clerk to return notices of appeals without filing them.

      • intentionally lying and misrepresenting the law;
      • refusing to rule on a motion for a preliminary injunction for more than 15 months;
      • allowing scores of motions to go undecided;
      • and usurping legal authority.
      • The complaint alleges (Core Allegations):
      • intentionally lying and misrepresenting the law;
      • refusing to rule on a motion for a preliminary injunction for more than 15 months;
      • allowing scores of motions to go undecided;
      • and usurping legal authority.
    • See Complaint and Order, Judicial Council Order.

      December 14, 2001, Judge R. Lanier Anderson renders order dismissing the complaint due to:

      The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling”. Additionally, this complainant currently has pending in this court several Petitions for Writs of Mandamus that address this issue. Consequently, pursuant to 28 U.S.C. 372(c)(3)(A) and Addendum Three Rule 4(a)(2) this Complaint is Dismissed.

      When Judge Anderson wrote this order, the Eleventh Circuit had already had denied the mandamus petition, Case No. 01-15754, which he references in his order dismissing this complaint. Consequently, Judge Anderson knows that Judge Graham’s misconduct has not been discussed, much less remedied.


      INTERVENING MANDAMUS

      December 5, 2001, in a terse one page, (Case No. 01-15754), “opinion” denies relief. “The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.”
      January 25, 2002, the Eleventh Circuit refuses to give the basis for its opinion of December 5, 2001 and denies a motion for rehearing or clarification.

      Complaint No. 02-0029

      Judge Graham attempted to use the contempt process to force Mason to drop a lawsuit filed against him.

      In this Complaint, Mr. Mason makes the unsupported allegation that Judge Graham has “improperly and illegally used his office to bring criminal contempt charges against me since the imitation (sic) of my last complaint on February 8, 2002”. Although Mr. Mason does not submit any evidence or documentation in support of his allegation, Judge Graham did in fact issue an Order to Show Cause regarding possible contempt charges against Mr. Mason detailing why Mr. Mason should be charged with criminal contempt, Not one reason cited in this order relates to any complaints having been filed against Judge Graham by Mr. Mason. The allegations that Judge Graham improperly and illegally issued the Order to Show Cause, and that it was issued in retaliation for Mr. Mason having filed complaints against judge Graham are clearly disputed by Mr. Mason’s behavior and obvious disregard for Judge Graham’s Omnibus Order and are “directly related to the merits of a decision or procedural ruling”, Therefore, pursuant to 28 U .S.C. § 372(c)(3)(A) and Addendum III Rule 4(a)(2), this Complaint is Dismissed .

      See Complaint and Order.


      COMPLAINTS FILED IN 2005

      A Series of complaints, Nos. 05-00008, 05-0011, 05-0012, 05-0013, 05-0020, and 05-0021, were filed in 2005. In order to keep Judge Edmondson from viewing allegations of misfeasance, malfeasance, and nonfeasance against Judge Graham in isolation, Mason included the following allegations in all the complaints so that Judge Graham’s record could be viewed in the aggregate.

      Additionally, in 2005, Judge Edmondson knows for certain that Judge Graham has escaped appellate review because the Eleventh Circuit, though fully briefed, refused to discuss whether Judge Graham should have disqualified. Moreover, the Eleventh Circuit declined to discuss the allegations of misconduct and abuse that Mason used to support the thesis that Judge Graham should have disqualified. See, Case No. 01-13664, Unpublished Opinion.


      Complaint No. 05-0008

      Complaint filed January 29, 2005.

      Additionally, Judge Graham knowing falsely created a Civil Justice Act Report that concealed the fact that he had a motion for a preliminary injunction pending for more than 15 months. Judge Edmondson reply to these allegations:

      In this complaint, the single (unsupported) allegation that has not already been determined in previous complaints filed by Mr. Mason against Judge Graham is that Judge Graham intentionally falsified his March 31, 2001, Civil Justice Reform Act Report in an attempt to conceal the fact that he had not ruled on one of Mr. Mason’s motions for over 15 months. Notwithstanding the fact that the motion in question was pending for more than six months, and the fact that the March 31, 2001 report is incorrect, Mr. Mason has not presented any information, evidence or documentation to support his claim to suggest that the omission of this motion on this CJRA report was an intentional attempt by Judge Graham to conceal his failure to rule on the motion. The allegations of this Complaint are “frivolous”, “successive”, and “appropriate corrective action has been taken”. Therefore, pursuant to Chapter 16 of Title 28 U .S.C. § 352 (b)(I)(ii) and Addendum III Rules 4 (b)(3) and (4) and 18(c) this Complaint is DISMISSED.


      Order 05-0011. Complaint No. 05-0011
      Complaint filed January 31, 2005.
      This complaint, in addition to the core allegations, alleges the following:
      Judge Graham has arrogated his own authority, much like Sadam Hussein, Stalin, Hitler, other infamous autocrats and dictators. Specific acts of misconduct committed by Mr. Graham include, but is not limited to the following:
      Concocting a patently illegal injunction or pre-filing screening under the guise of “inherent authority”. See (D.E. 878), URL: http://mmason.freeshell.org/DE-878/de878.pdf.Using this patently illegal injunction to initiate and gain a criminal contempt conviction. Allowing the Eleventh Circuit to use this patently illegal injunction, (D.E. 878), rendered on September 20, 2001 , to affirm the dismissal of a case, 99-14027-CV-Graham, that closed on June 20, 2001. Imagine that! Allowing the Eleventh Circuit to destroy my right under the “rule of law” to appeal this patently illegal injunction, (D.E. 878).Using intimidation by ordering me, Robert Waters, AUSA, Frank Smith, U.S. Probation, and others to come to a “Status/Motion Hearing” on January 9, 2005. Abusing his office and circumventing the appellate process by ordering me not to file any one page requests to file Rule 60(b) motions and refusing to put this illegal order in writing so that it can be challenged on appeal. July 7, 2005, Judge Edmondson answered these allegations:

      In this complaint, there are only two allegations that have not been determined in previous complaints filed by Mr. Mason against Judge Graham. Mr. Mason first complains that Judge Graham issued a verbal order on January 14, 2005, which advised him not to file any further pleadings with the court . Mr. Mason then complains that this order was not in writing to prevent him from filing an appeal. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling or frivolous or both”, and the allegations of the complaint “lack any factual foundation or are conclusively refuted by objective evidence” . Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.


      Order No. 05-0012. Complaint No. 05-0012

      COMPLAINT FILED FEBRUARY 7, 2005. SPECIFIC ALLEGATIONS OF MISCONDUCT AND JUDICIAL ABUSE

      1. Mr. Graham abused his office by having the U.S. Marshall, Keith L. Kluttz, come and interrogate me at my home on or about February 5, 2004 when he had no earthly reason to do so.
      2. Mr. Graham abused his office by ordering me to come to “Status/Motion Hearing” on January 14, 2005 on a closed civil case, 99-14027.
      3. Mr. Graham conducted a quasi criminal hearing under the guise or cloak of a “Status/Motion Hearing” in a civil matter. The AUSA and U.S. Parole were attendance at this “Status/Motion Hearing”. I was unrepresented by a competent criminal defense lawyer.
      4. Graham ordered me to answer his intimidating questions in violation of my Fifth Amendment rights. Mr. Graham gave me no warning that my statements could be used against me even though the U.S. Attorney and U.S. Probation were in attendance.

      On January 9, 2005, Mr. Graham concocted what he termed a “Status/Motion Hearing” order. This order was then certified on January 10, 2005 by one of Mr. Graham’s clerks. This order specifically demands that the following individuals be there: Frank Smith, U.S. Probation, Robert Waters, AUSA, Lynn Waxman, Appellate Attorney, Maria Sorolis, counsel for Highlands County. This order was picked up by Fedex on January 10, 2005 and delivered to my home on January 11, 2005. Mr. Graham scheduled this hearing for January 14, 2005 at 15:30 in Fort Pierce. Mr. Graham was already scheduled to be in Fort Pierce on this date. Mr. Graham made no effort to talk to me or my appellate attorney about dates that would be convenient to us. Mr. Graham made no prior contact with me or Ms. Waxman. At this hearing, Mr. Graham made absolutely no mention of the merits of any pending motion in the civil case, 99-14027. Mr. Graham kept saying the case was closed and not to ‘file’ anymore Rule 60(b), Fed.R.Civ.P. motions or requests to file Rule 60(b), Fed.R.Civ.P. motions. Mr. Graham asked U.S. Probation about the terms of my probation. Why is this needed in a civil matter?
      For what purpose did AUSA Robert Waters and US Parole Officer Frank Smith attend a “Status/Motion Hearing” in a civil matter? Mr. Graham has refused to put any of the “commands” he made in writing so that they could be held up to public scrutiny. Mr. Graham felt it important enough to hastily concoct a “Status/Motion Hearing”, but not important enough to memorialize is “commands” to writing. Mr. Graham does not have the legal authority to demand, under the threat of arrest, that I attend a “Status/Motion Hearing” on a closed civil case. Mr. Graham had a deputy US Marshall come by my home and interrogate me without the presence of counsel even though criminal contempt case was pending, Case No. 02-14020-CR-Moore. I was questioned by the U.S. Marshall without benefit of having an attorney present. Mr. Graham had no probable cause to send the US Marshal to my house. The mere fact that Mr. Graham disagrees with my unrelenting attacks on his record and personal integrity is not sufficient reason to “sick the dogs on me”, or US Marshal. The US Marshal’s office is not Mr. Graham’s private police force.
      June 27, 2005, Judge Edmondson states:

      In this complaint, there are four allegations that have not been determined in previous complaints filed by Mr. Mason against Judge Graham. Mr. Mason complains that Judge Graham abused his office by ordering him to appear at a Status/Motion hearing held on January 14, 2005, and that Judge Graham scheduled this hearing without any attempt to talk with him or his attorney about dates that were suitable for them. Mr. Mason also complains that Judge Graham ordered him to answer intimidating questions at this hearing without warning that his statements could be used against him even though the U.S. Attorney and U.S. Probation offices were represented and present at this hearing. Mr. Mason further complains that Judge Graham improperly and without good cause sent the U.S. Marshals as his own private police force.

      The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling”, frivolous”. and the allegations of the complaint “lack any factual foundation or are conclusively refuted by objective evidence” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U.S.C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3)(4) and 18 (c) this Complaint is DISMISSED. Order No. 05-0012.

      Complaint No. 05-0013

      Complaint filed February 8, 2005
      In addition to the core allegations, this complaint alleges:
      Mr. Graham abused his office by ordering me to come to a “HEARING ON CONDUCT OF PARTIES DURING PROCEEDINGS” on December 4, 2001 on a closed civil case, 99-14027. The case was closed on June 20, 2001.This case was on appeal since June 25, 2001, consequently, Mr. Graham no longer had jurisdiction over the case. Why do I need to a ““NOTICE OF HEARING ON CONDUCT OF PARTIES DURING PROCEEDINGS” on a closed case? Does Mr. Graham get to order me to come to a hearing anytime he gets ready?
      Judge Edmondson’s reply:

      In this complaint Mr. Mason alleges that Judge Graham abused his office by ordering to appear at a hearing on December 4, 2001, when the case in question, No. 99-CV-14027, was closed and on appeal at the time the hearing was scheduled. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED. Order No. 05-0013.

      Complaint No. 05-0020

      Complaint filed February 16, 2005
      This complaint alleges:
      Judge illegally blocked Mason’s access to the courts by improperly denying motions to proceed without payment, in forma pauperis, on 18 different occasions, while refusing to cite a legal or factual reason for doing so as required by law.
      Graham allowed IFP motions to linger for months in violation of S.D.Fla. Local Rule 7.1.B.3 which calls for a hearing on motion in 90 days. (DE #8, 9-18-2001). Plaintiff’s motion was filed on 3/12/01 (DE #2). It took Graham more than six months to create a reason to deny this motion that was not denied until 9-18-2001. See (DE #8, 9-18-2001).
      Graham deliberately stated misleading facts or outright lied in justifying his injunction of September 20, 2001, (DE 878), by using the very unfiled lawsuits that he denied me IFP status to support this patently illegal injunction . For the purpose of justifying the injunction, (DE 878), Mr. Graham counted the following lawsuits as being “filed”: (1)Case No. 00-14202, (2)Case No. 00-14201, (3)Case No. 00-14116, (4)Case No. 01-14074, (5)01-14078, See pgs. 1-2, DE-878, URL: http://mmason.freeshell.org/DE-878/de878.pdf. Mr. Graham states, “Marcellus M. Mason (“Mason”) has filed eleven (11)cases and/or counterclaims in this District…” According to Mr. Graham’s own definition of “filing”, “A complaint is not considered filed until the filing fee is paid.” See (DE -10) Case No. 00-14201. See also (DE -10) Case No. 00-14202. No filing fee was paid in either of the above cases because Graham arbitrarily denied me the benefit of the in forma pauperis statutes. Using Graham’s own definition there were only 11 minus 5 or 6 lawsuits “filed.” Case No. 00-14240 which Graham also counts was actually filed by Highlands County, not me. Now Graham has only 5 lawsuits filed. Case No. 01-14230 was filed in state court and removed to the S.D. Fla. by Highlands County after Graham crafted the injunction where they knew the case would be assigned to Graham. See Notice of Removal, URL: http://geocities.com/mcneilmason/secret/01-14230/NoticeOfRemoval.pdf. Graham now has only four lawsuits that I filed, not the 11 he concocted. See Litigation Summary, URL:http://mmason.freeshell.org/LitigationSummary.doc . The four remaining lawsuits Case Numbers 99-14042, 99-14257, 99-14314 were consolidated with Case number 99-14027.

      Judge Edmondson’s reply:

      In this complaint Mr. Mason, although worded differently that his previous complaints, re-makes the allegation that Judge Graham denied him access to the courts by summarily denying a string of motions for in forma pauperis and that Judge Graham did not identify either of the only two reasons allowed for such denial. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.

      Order No. 05-0021. Complaint No. 05-0021

      Complaint filed February 19, 2005
      This complaint alleges:
      Mr. Graham should have disqualified himself long before any motion for attorney’s fees had been presented. “Disqualification is mandatory for conduct that calls a judge’s impartiality into question.” U.S. v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001). As this Complaint and previous complaints clearly demonstrate Judge Graham should have disqualified himself because he: (1)he intentionally misrepresented the law; (2)refused to rule on a motion for a preliminary injunction for more than 16 months;(3)usurped legal authority by requiring me to seek the permission of a private law firm to communicate with my government;(4)allowed scores of motions to go undecided; (5)concocted a “pre-filing” injunction;(5)lied on a Civil Justice Act Report;(6)See Section 372(c) complaints docketed under Case Nos. 05-0008, 05-0011, 05-0012, 05-0013, and a complaint dated Wednesday, February 16, 2005 for more reasons Graham should have disqualified. Mr. Graham and his Magistrate awarded the Defendants, Highlands County, a whopping award of $200,000 that he admitted in writing had nothing to do with the law or the “merits”. Mr. Graham even lied in order to award the defendants $200,000 in attorney’s fees. These allegations are fully supported by the following RECORD facts. See (DE #882), URL: http://mmason.freeshell.org/DE-882/de882.pdf . (DE 891), URL: http://mmason.freeshell.org/DE-891/de891.pdf . Judge Graham intentionally lied in order to award attorney’s fees of $200,000. Mr. Graham admitted that he knew the law and was not going to follow it with respect to the awards of attorney’s fees. At page 3 of the Report and Recommendation, Graham and his Magistrate admit that Christiansburg Garment Company v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978) is the standard for awarding attorney’s fees. Mr. Graham and his Magistrate admit that I had no chance of paying $200,000 in attorney’s fees but awarded it to the defendants anyway. After awarding the Defendants $200, 000 in attorney’s fees against me, Mr. Graham then decided to deny me in forma pauperis status to appeal this travesty. Moreover, Mr. Graham refused to offer any lawful reason for denying me IFP status. See (DE #906), URL: http://mmason.freeshell.org/DE-906/de906.pdf . I prevailed on a summary judgment in a lawsuit filed against me by Highlands County and Mr. Graham refused to award me costs of less than $200.00. See (DE #27), URL: http://mmason.freeshell.org/00-14240/de27.pdf ; (DE #33), URL: http://mmason.freeshell.org/00-14240/Doc33/de33.pdf ; (DE #35), URL: http://mmason.freeshell.org/00-14240/Doc35/1.jpg . Judge Edmondson’s reply:

      In this complaint Mr. Mason repeats allegations, filed in previous complaints, that Judge Graham should have recused himself, that Judge Graham refused to rule on several motions, and that Judge Graham required him to seek permission from a private law firm to communicate with his government. The only new allegation in this complaint concerns the attorney fees awarded by Judge Graham to the defendants in the amount of $200,000. Mr. Mason claims Judge Graham lied in order to grant the fees. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.

      Order No. 05-0021.

      What makes this order particularly offensive is that both Judge Graham, for no stated reason, and the Eleventh Circuit, both denied Mason the opportunity to appeal the $200, 000 judgment. The Eleventh Circuit claimed the appeal of the $200,000 attorney’s fees was frivolous without providing a scintilla of evidence to support its mere fortuitous and self-serving conclusion.
      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.
      EVEN MORE INCREDIBLE IS THE FACT THAT THE ELEVENTH CIRCUIT REFUSES TO REVIEW THIS SUA SPONTE ISSUED PRE-FILING INJUNCTION FOR VALIDITY. SEE mmason.freeshell.org/SuaSponte.htm#AppellateHistory.

  • When Does Judge Graham become Accountable?


    Judge Edmondson’s Attack on the Complainant

    On May 2, 2005, Circuit Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeal stated:

    Of the eight complaints not specifically naming Judge Graham as the complained–of judge, five name judges of this Court who served on panels reviewing Mr. Mason’s appeals — panels that affirmed decisions and rulings by Judge Graham. None of Mr. Mason’s judicial complaints have prevailed. All of the complaints that have been resolved to date have been dismissed for some or all of the following reasons: the complaints were (1) plainly untrue; (2) frivolous; (3) successive; (4) conclusively refuted by objective evidence; (5) lacking in factual foundation; (5) lacking in evidence sufficient to raise an inference that misconduct had occurred; or (6) directly related to the merits of a decision or procedural ruling…Eight of Mr. Mason’s twenty-one judicial complaints are still pending before this Court: Complaint numbers 05-0011, 05-0012, 05-0013, 05-0020, 05-0021, 05- 0022, 05-0023, and 05-0036. Six of those complaints name Judge Graham while the other two name judges of this Court who served on panels that affirmed decisions or rulings issued by Judge Graham. Four of the complaints are, on their face, successive. Accordingly, determination of those eight complaints will be held in abeyance pending the resolution of this Show Cause Order

    See Show Cause Order.

    The Perfect Scam

    IMPORTANT BACKGROUND AND CONCURRENT FACTS

    In order to fully understand the lengths that Judge Edmondson and his cohorts at the Eleventh Circuit are willing to go through to conceal the acts of misfeasance, malfeasance, nonfeasance committed by Judge Donald L. Graham, one must read the opinions in the direct appeal, Case
    No. 01-13664
    and mandamus petition, Case No. 01-15754 (“The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.)in conjunction with the complaints listed below. The Eleventh Circuit does not deny the allegations it simply ignores them. In the direct appeal, the Eleventh Circuit acknowledges that it was briefed on the issue that Judge Graham should have disqualified because of the alleged misconduct, however, it refuses to discuss this issue on appeal (“Mason also raises issues that relate to non-sanction matters, … the denial of his motions to disqualify the district court and magistrate judges,“). Similarly, it refuses to discuss this issue in mandamus petition.

    The Eleventh Circuit and Judge Edmondson employed a perfect strategy to conceal these allegations of misconduct. The direct appeal and mandamus orders are non-published. Neither of these opinions have ever been available in the Court’s database or released. Couple this fact, with the fact that the Judicial Misconduct Complaints are kept confidential no one would ever know save this website.

    It is noteworthy and quite revealing that upon reading the complaints and Judge Edmondson’s replies that he does not deny, because he can not, any of the allegations set forth in any of the complaints below.

    The point of the foregoing is that Judge Edmondson and his cohorts knew full well that when these complaints were lodged that the Eleventh Circuit had already refused to address these allegations in the appellate process. Consequently, there is no remedy for these acts of misconduct and abuse.


    Complaint #01-0054

    This complaint raised the following allegations:

    Complaint No. 01-0054. On November 7, 2001, former Chief Judge R. Lanier Anderson, without denying the truth of the allegations, stated:

    Marcellus M. Mason. Jr. filed this complaint against United States District Judge Donald L. Graham, pursuant to Title 28 U.S.C. § 372(c) and Addendum Three to the Rules of the Judicial Council of the Eleventh Circuit. The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling” and/or ‘Action on the complaint is no longer necessary because of intervening events, and intervening events”. Consequently, pursuant to 28 U.S.C. § 372(c)(3)(A) and (3)(B) and Addendum Three Rule 4 (a)(2), this Complaint is DISMISSED.

    On March 5, 2002, the Judicial Council declined to do a review. See Order.


    Case No. 01-0068

    Complaint No. 01-0068

    Complaint filed on November 27, 2001

Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts

April 14, 2008

Judge Donald L. Graham

Preface

A district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue, or with Supreme Court Justices writing for a majority of the Court. Binding authority within this regime cannot be considered and cast aside; it is not merely evidence of what the law is. Rather, case law on point is the law. If a court must decide an issue governed by a prior opinion that constitutes binding authority, the later court is bound to reach the same result, even if it considers the rule unwise or incorrect. Binding authority must be followed unless and until overruled by a body competent to do so…A decision of the Supreme Court will control that corner of the law unless and until the Supreme Court itself overrules or modifies it. Judges of the inferior courts may voice their criticisms, but follow it they must.Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001).

“”Thumbing your nose at the U.S. Supreme Court is almost unheard of in the judicial system,” said Kary Moss, ACLU of Michigan Executive Director.” U.S. District Judge Donald L. Graham denied an indigent, Marcellus Mason, access to the courts no less than 18 times for no apparent reason by denying in forma pauperis motions. See IFP Mockery. The Supreme Court has said that an in forma pauperis application may only be denied if the allegation of poverty is untrue or if the lawsuit is frivolous. Judge Graham failed to cite any reason for these denials. These denials represent an apparent snub and disdain for the United States Supreme Court and the Congress. If Judge Graham won’t respect the law and the United States Supreme Court then who should?

Definition of In Forma Pauperis

In forma pauperis (IFP) is a legal term derived from the Latin
phrase in the character or manner of a pauper. In the United States, the IFP designation is given by both state and federal courts to someone who is without the funds to pursue the normal costs of a lawsuit or a criminal defense. The status is usually granted by a judge without a hearing, and entitles the person to a waiver of normal costs, and sometimes in criminal cases the appointment of counsel. URL: http://en.wikipedia.org/wiki/In_forma_pauperis.


The United States Supreme Court

The federal in forma pauperis 28 U.S.C. §1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit. The statute protects against abuses of this privilege by allowing a district court to dismiss the case “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.Denton v. Hernandez, 504 U.S. 25, 27…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.
Neitzke v. Williams, 490 U.S. 319, 324 (1989). [a] court may dismiss a claim as factually frivolous only if the facts alleged are “clearly baseless,” [internal citations omitted] , a category encompassing allegations that are “fanciful,” “fantastic, “and “delusional,. [A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them. An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff’s allegations unlikely. Some improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be “strange, but true; for truth is always strange, Stranger than fiction. Denton v. Hernandez, 504 U.S. 25 (1992).

Examples Of Judge Graham’s Arbitrary Denials and Arrogance

(D.E. 9, Case No. 00-14201-CIV-GRAHAM/LYNCH)

THIS CAUSE came before the Court upon Plaintiff’s Motion to proceed in forma pauperis (D.E. #2). UPON CONSIDERATION of the motion and the pertinent portions of the record, it is ORDERED AND ADJUDGED that Plaintiff’s Motion be, and the same is hereby, DENIED.

(D.E. 877, Case No. 99-14027-CIV-GRAHAM/LYNCH) (This order denied three motions to proceed IFP, (DE #796, #799,& #811)

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.

These statements are the only explanations Judge Graham has offered for these denials. As a matter of fact, Judge Graham has 16 more denials like this where he arbitrarily denied Marcellus Mason in forma pauperis. If Judge Graham won’t respect the law and the United States Supreme Court then who should?

Judge Graham Admits He Knows the Law And Expressly Rejects the U.S. Supreme Court

It appears that Judge Graham has the power to create, by apparent fiat, his own rules and laws when he sees fit with respect to in forma pauperis applications. Quoting Herrick v. Collins, 914 F.2d 228 (11th Cir. 1990), a case cited by Judge Graham to Mason on least two occasions, see 00-14202,(DE #10, dtd. 11-2-2000); 00-14201, (DE #10, dtd. 11-21-2000), 28 U.S.C. § 1915 (1988) states in pertinent part:


(d) The court may . . . dismiss the case if . . . satisfied that the action is frivolous or
malicious
.

On September 7, 2002, Judge Graham was presented with a “MOTION TO PROCEED IN FORMA PAUPERIS AND SUPPORTING AFFIDAVIT, PLAINTIFF’S MOTION TO DISQUALIFY, PLAINTIFF’S DEMAND TO RESCIND INJUNCTION FORTHWITH, AND PLAINTIFF’S MOTION FOR PUBLICATION”. See Docket Entry No. 914, pdf (1.8 meg, very large), or Microsoft Word 97 Doc.(1.89K, small). This motion specifically informs Judge Graham of the U.S. Supreme Court’s legal requirements with respect to in forma pauperis.

According to the rules and case law authority promulgated by the Supreme Court of the United States and the Congress of the United States, the elected representatives of the people, “§ 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.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). See also Denton v. Hernandez, 504 U.S. 25, 27 (1992).” This Court has denied Mason’s in forma pauperis applications on eleven occasions for no stated reason at all, see below. “While a trial court has broad discretion in denying an application to proceed in forma pauperis under 28 U.S.C.A. § 1915, it must not act arbitrarily and it may not deny the application on erroneous grounds.” Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir. 1983) . See also Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 (5th Cir.1975)(“[I]n denying such applications [in forma pauperis]a court must not act arbitrarily. Nor may it deny the application on erroneous grounds.). On two occasions this Court has denied Mason’s in forma pauperis applications for nebulous, unintelligible, and indeterminate reasons, see below. On four different occasions this has created a “pending litigation and previous denial reason,” see below. In order to deny an in forma pauperis application, a specific procedure must be followed, assuming this Court intends to follow the law. “If the district court grants the motion, the party may proceed on appeal without prepaying or giving security for fees and costs. If the district court denies the motion, it must state its reasons in writing.” FRAP 24(a)(2). Liles v. South Carolina Dept. Of Corrections, 414 F.2d 612 (4th Cir. 1969)(citing Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958)(“In case the district court certifies that the appeal is not taken in good faith, the required written statement must show not merely that the appeal lacks merit, but that the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant.).

See Docket No. 914.

When Judge Graham read this motion his only reply with respect to the motion to proceed on appeal in forma pauperis and the Supreme Court’s edict was:

ORDERED AND ADJUDGED that Plaintiff’s Motion to Proceed In Forma Pauperis, Plaintiff’s Motion to Disqualify, Plaintiff’s Demand to Rescind Inunction and Plaintiff’s Motion for Publication (D.E. #914) is DENIED.

See Docket No. 928.
Consequently, it is clear that Judge Graham’s knows the rules with respect to granting in forma pauperis.

Eleventh Circuit Repeatedly Refuses To Review Orders For Validity

April 12, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge 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.


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!


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 (11thCir. 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).

  6. 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. .


    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)

Is Judge Donald L. Graham More Dangerous than Jeremiah Wright ?

April 9, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham Jeremiah WrightJeremiah Wright


God Damn the Constitution !

Who is More Dangerous Jeremiah Wright or Judge Donald L. Graham? Is it the person that makes incendiary remarks protected by the Constitution or the federal judge who systematically trashes the Constitution with impunity? This author believes that Judge Donald L. Graham is far more dangerous to America than Jeremiah Wright because Judge Graham appears to hate the Constitution. Judge Graham has shown a reckless disregard for the Constitution and the “rule of law”.

Constitutional Protections Violated by Judge Graham

Judge Graham has violated the following specific provisions of the United States Constitution.

  • First Amendment
  • Due Process
  • Right of Access to The Courts
  • Tenth Amendment
  • Article III

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.

(DE #246). This order is dated July 25, 2000.

Judge Graham ultimately dismissed this lawsuit on June 20, 2001 because of alleged out of communications between Marcellus Mason and the Highlands County Government. See Docket Entries 766 and 791.

Sua Sponte Issued Pre-Filing Injunction

On September 20, 2001, or three months after the closed on June 20, 2001, Judge Graham concocted a pre-filing injunction, sua sponte. Docket Entry No. 878. Sua sponte means on the court’s own motion and without a request from any party in the lawsuit. In this matter, the pre-filing injunction required Mason to seek the permission of Judge Graham to file a motion or a lawsuit, or leave to file. According to Judge Graham’s colleague in Miami others, Judge Adalberto Jordan, the purpose of a filing injunction is to “to ensure that frivolous or meritless lawsuits do not interfere with their constitutional function”. May vs. Shell Oil Co., 2000 U.S. Dist. LEXIS 14786,* (S.D. Fla. 2000). “[B]efore a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court to make “substantive findings as to the frivolous or harassing nature of the litigant’s actions… To make such a finding, the district court needs to look at “both the number and content of the filings as indicia” of the frivolousness of the litigant’s claims.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). Judge Graham’s pre-filing injuction does not list a single lawsuit that was without merit. In order to justify the injunction, Judge Graham lies about the number and nature of lawsuits filed. See Lawsuits Filed. At page 3, Judge Graham claims that eleven lawsuits were filed by Mason when in fact Mason filed four lawsuits which were consolidated into one case, 99-14027. As a matter of act, Judge Graham is precluded by law from asserting that D.C. Case No. 99-14027-CV was without merit because Judge Graham refused to rule on pending summary judgments by both Highlands County and Mason.1


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.

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). The The Defendants being referred to here is the Highlands County Board of County Commissioners, and other governmental agencies.

The filing injunction violated Mason’s First Amendment Rights.

The First Amendment right to “petition the Government for a redress of grievances” — which includes the filing of lawsuits — is “one of ‘the most precious of the liberties safeguarded by the Bill of Rights.’ ” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524, 122 S. Ct. 2390, 153 L. Ed. 2d 499 (2002) (quoting United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217, 222, 88 S. Ct. 353, 19 L. Ed. 2d 426 (1967)). Consequently, a determination that a litigant has repeatedly filed frivolous and harassing [*3] lawsuits itself implicates his First Amendment interest in access to the courts. Indeed, where an individual’s use of the courts is declared abusive or baseless, “the threat of reputational harm[,] . . . different and additional to any burden posed by other penalties,” is alone sufficient to trigger First Amendment concerns. See id. at 530./span>

<Molski v. Evergreen Dynasty Corp., 2008 U.S. App. LEXIS 7372 (9th Cir. 2008).

Right of Access to The Courts

The right of access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102 (1996). On September 20, 2001, Judge Graham rendered a pre-filing injunction sua sponte or without notice and opportunity to be heard. See Docket Entry Number 878, (D.E. # 878) Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte.

Judge Graham has aggressively blocked access to the Courts by arbitrarily denying a string of in forma pauperis motions, “IFP”, indigency applications, or application to waive court filing fees. In none of these denials, 18, did Judge Graham supply any reason for denial of the IFP motion. See IFP Page. Assuming the Supreme Court of the United States is relevant and further that Judge Graham is required to follow their rulings, then Judge Graham does not respect the Supreme Court either. The Supreme Court has said that an IFP motion can be only denied “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). See also Denton v. Hernandez, 504 U.S. 25 (1992).

Due Process

It is black letter law that a litigant is entitled to notice and opportunity to be heard before the court imposes the injunctive order. U.S. v. Powerstein, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006); Baum v. Blue Moon Ventures, LLC , 2008 U.S. App. LEXIS 91,*; 513 F.3d 181; 49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.“). See Case law.

Bad “Faith Finding”

The U.S. Supreme Court has unequivocally stated: A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.”(emphasis added) Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991).In this same sua sponte issued pre-filing injunction Judge Graham makes a so-called “finding of bad faith“. “It has become clear to the Court that Mason is proceeding in bad faith.. Such activity is in bad faith and will not be permitted by the Court.D.E. #878, pg. 5, 6,(“Bad Faith” section). See Bad Faith Case Law.

Tenth Amendment

“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 Amend., U.S. Const. Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.” (DE #246). Public Records are covered under Chapter 119 of the Florida Statutes. There is no provison, or need for that matter, for a federal judge to exert jurisdiction over Florida Public Records. As a matter of fact, the Florida Supreme has expressly rejected Judge Graham’s jurisprudence. Henderson v. State, 745 So.2d 319, 326 (Fla. 1999)(“[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, 424 (Fla. 1979)(“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.”).

Article III

A Magistrate Judge is a statutory judge created by an act of Congress, “The Magistrates Act”. 28 U.S.C. § 636 (b)(1)(A) clearly states:

Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court except a motion for injunction relief,…” 28 U.S.C. § 636 (b)(1)(A)

Judge Graham has expressly stated that it is not clear error for a Magistrate to issue an injunction.

On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary injunction prohibiting the Plaintiff from contacting any of the 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.


  1. See (Doc. 507);(Doc. 667);(Doc. 668) );(Doc. 706);(Doc. 797). Incidentally, the Defendants have tacitly admitted by not refuting with record evidence, that the Plaintiff has made a prima face case. See Defendants’ Summary Judgment Motion, (Doc. 769, Pg. 7).
  2. Judge Graham is fully aware of the frivolous requirement because it was his court that cited May vs. Shell Oil Company, 2000 U.S. Dist. LEXIS 14786, *7 (S.D. Fla. 2000). See Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01). This was a lawsuit filed by Highlands County against Mason asking for a pre-filing injunction.

Judicial Independence Equals Nonaccountability?

April 8, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

What the Proponents Of “Judicial Independence” Say

The Justice at Stake Campaign has asserted the following:

Judicial independence means that judges are free to decide cases fairly and impartially, relying only on the facts and the law. It means that judges are protected from political pressure, legislative pressure, special interest pressure, media pressure, public pressure, financial pressure, or even personal pressure.

No one expects judges to be perfect, or please everyone. That’s why there are mechanisms to hold judges accountable. Rulings can be appealed up to the Supreme Court. Laws can be changed. Wrongdoing and ethical violations can be punished. In most states, judges must stand for re-election.

According to the Justice at Stake Campaign, This position is supported by the American Bar Association, American Judicature Society, Brennan Center for Justice at NYU School of Law, and a host of others. Without reading the rest of this post, one need only go to mmason.freeshell.org/methods.htm, to find out why “mechanisms to hold judges accountable” do not work with respect to federal judges. Federal Judges are above the law and can not be punished except under the most extreme circumstances and then only with public scrutiny.

You stop here and read the post on this blog, “Chief Judge J.L. Edmondson Aggressively Defends Judge Donald L. Graham” to see why “Judicial Independence” is a deeply flawed concept.

https://mcneilmason.wordpress.com/2008/04/17/chief-judge-jl-edmondson-aggressively-defends-judge-donald-l-graham


Preparatory Work

This is a fact oriented site backed up with actual real world documents and not some academic exercise. This site and similar ones takes the case of U.S. Judge Donald L. Graham and documents acts of judicial misconduct. It also documents the extreme measures that other judges will take to shield fellow judges from public scrutiny and hence accountability to the American public. The American public can not scrutinize what it does not know exists in the first instance. This author recommends that you first read the Allegations of Misconduct leveled at Judge Graham. Satisfy yourself that they are legitimate and return to this page. These allegations include, but are not limited to the following:

  • Committing a criminal act by abuse of the criminal contempt procedure. Judge Graham took a clearly invalid sua sponte issued pre-filing injunction or vexatious litigant injunction and made it the basis of a criminal contempt complaint and conviction. Judge Graham framed an innocent man by concocting a crime out of “whole cloth”. See Framed.
  • Lying and intentionally misrepresenting law.
  • Lying and intentionally misrepresenting material facts.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for more
    than 17 months.
  • Allowing scores of motions and filings to languish without being decided.
  • Usurping legal authority. Allowing a Magistrate to issue an injunction prohibiting direct communication with the Highlands County Government.
    Additionally, prohibiting Marcellus Mason from making public
    records request under Florida Law directly to Highlands County.
  • Routinely violating clearly established law and the authority of the U.S. Supreme Court by issuing pre-filing injunctions.
  • Ignoring the U.S. Supreme Court denying access to the courts by refusing to state any reason for denying IFP applications.

Judicial Independence Equals Unaccountability

In the case of federal judges, it is the opinion of this author that Judicial Independence Equals Unaccountability. There are several methods of disciplining rogue judges that include:

  • Appellate Review. This could be Direct Appeal, Mandamus, or some other method of petitioning an appellate court for relief.
  • Judicial Misconduct and Disability Act. The Judicial Improvements Act of 2002 replaced 28 U.S.C. § 372(c), which formerly governed complaints of judicial misconduct or disability, with 28 U.S.C. § 351, et seq., effective November 2, 2002. This is a complaint procedure that is suppose to handle misconduct of a federal judge by filing a complaint with the Chief Judge and Judicial Council, composed of federal judges.
  • Lawsuit. A lawsuit can be filed against the offending judge, the lawsuit needs to defeat a virtually insurmountable concept called “absolute immunity” which means that a judge could intentionally jail someone and still not be punished. Judges get to decide who have absolute immunity” or “judicial immunity” and who doesn’t.
  • Impeachment. Congress has the right to remove any federal judge, however this is a massive undertaking for the Congress and one that is rarely used. See Section below on Impeachment.

Except for impeachment, the other three methods are controlled by Judges and most often without public scrutiny. If federal judges are determined to undermine each of these methods, they can do so quite easily and appear to be acting within the law. This is easily done with a process or tactic that this author calls “herding”. Herding being the shepherd or the cowboy leads the sheep or cows to the desired destination or outcome. In the sense for which this author uses the term “herding”, judges leads you to the desire outcome by choosing the method and controlling both the facts and their publication. Specifically, complaints under the Judicial Misconduct and Disability Act are summarily dismissed because the allegations are “directly related to the merits”. See Methods Page and Section 351 Page. This suggests that your allegations of misconduct, if true, can be addressed through the appellate process. Chief Judge J. L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, has become very adept at this tactic and has defined judicial misconduct out of existence. Not only has he defined judicial misconduct out of existence he does not burden himself to list the allegations of misconduct or test them for veracity. Secondly, if you choose to sue the Judge, then your complaint will be summarily dismissed because the miscreant judge has “absolute immunity” even if your allegations of misconduct are true. See Graham’s Lawsuit. The appeals court need not even mention what the judge was being sued for in the first place. A judge could maliciously and knowingly improperly jail some one and still not be personally liable. The judges will say that the appellate process is your answer. Save impeachment, you now have only have the appellate process to address allegations of misconduct. The appeals court and in this case, the Eleventh Circuit, U.S. Court of Appeals, can and does render an unpublished opinion that simply ignores your allegations of misconduct or even outright lie. See Appellate Review. On Appeal the Eleventh Circuit picks the impertinent “facts” and chooses to publish or not publish. A graphical view of the overall process as to how complaints of misconduct against Judge Graham were handled can be found at : mmason.freeshell.org/methods.htm#herding_complaints_section or mmason.freeshell.org/mockery.jpg. Specifically, the appellate process with Judge Graham has been undermined with the following tactics:

  • Lying to Cover a Lie
  • Denying Access
  • Ignoring Issues. A truly egregious example is declining to review a Sua Sponte Issued Pre-Filing Injunction
  • Lying About Jurisdiction
  • Beyond the Scope of Appeal: A Despicable and Egregious Act

Impeachment Is Not An Option

Impeachment is not a likely option and virtually impossible as the process requires the attention of all the 535 members of the House and Senate. According to the Federal Judicial Center, http://air.fjc.gov/history/topics/topics_ji_bdy.html, only 13 judges have been before the Congress on impeachment charges in the entire history of the United States. Of these 13 judges, only 7 have been kicked out of office: John Pickering, West H. Humphreys, Robert W. Archbald, Halsted L. Ritter, Harry E. Claiborne, Alcee L. Hastings, and Walter L. Nixon. Judge Mark H. Delahay resigned. It is easier to impeach the President of the United States than to impeach a federal judge. For example, of the 43 presidents of the United States, two have been impeached, Bill Clinton and Andrew Johnson, or about 4 per cent. According to the Federal Judicial Center, we have had 3055 federal judges, only 13, or about 0.004 per cent have been impeached.

As a practical matter, federal judges are rarely called to answer for their performance on the job. As difficult as they are to remove, federal judges are equally difficult to demote. Article III explicitly prohibits the diminishment of a judge’s salary while in office, no matter how errant-or delinquent or unpopular-his or her decisions may be. On the whole, judges are easily the most independent constitutional officers.

On Judicial Activism, by Judge Diarmuid F. O’Scannlain
, URL: http://open-spaces.com/article-v3n1-oscannlain.php


JUDICIAL MISCONDUCT COMPLAINTS FILED AGAINST U.S. JUDGE DONALD L. GRAHAM

Judge Graham has a host of judicial misconduct filed against him. Chief Judge J.L. Edmondson’s has dismissed most of these complaints by simply defining judicial misconduct out of existence. State court judges have been removed for less reasons than the conduct committed by Judge Graham. Read the following complaints and Judge Edmondson’s reply and form your own judgment. The following complaints have been lodged against Teflon Don, or U.S. District Judge Donald L. Graham.

Pending Judicial Misconduct Complaints

Complaint Status

Judicial Conference

pending

Reconsideration
pending

June 25, 2008
pending

July 9, 2008
pending

July 15, 2008
pending

It has been said that the Committee on Judicial Conduct and Disability, has become quite serious in investigating federal judges for misconduct. According to law.com,
Binding National Rules Adopted for Handling Judicial Misconduct Complaints,

in March of this year, the Judicial Conference adopted the first-ever binding nationwide procedures for handling complaints of judicial misconduct. U.S. Dist. Judge Donald L. Graham has escaped discipline for his abusive and possible criminal behavior.  As a result of this, Mason submitted complaints to both the Judicial Conference and
Chief Judge J.L. Edmondson, Eleventh Circuit, US Court of Appeal,
again. These complaints are governed by 28 U.S.C. §§ 351-364,”The Judicial Improvements Act of 2002” formerly “The Judicial Misconduct and Disability Act“.  Previously, Chief Judge J.L. Edmondson, had been misconstruing the statute and summarily dismissing complaints of misconduct by simply regurgitating the statutory language at 28 U.S.C. § 352 which allows him dismiss complaints that are “directly related to the merits of a decision or procedural ruling“.  Judge Edmondson is alone in his view that legal error and judicial misconduct are mutually exclusive.  For more discussion on “legal error” and judicial misconduct, see article Chief Circuit Judge J.L. Edmondson Uses Perfect Scam of Negative
Definition To Defeat Complaints of Misconduct Under the Judicial
Misconduct and Disability Act
.  On Tuesday,  June 25, 2008, a new complaint of judicial misconduct was filed against Judge Graham.  Additionally, complaints of misconduct
were initiated against Judge Graham on July 9, 2008 and July 15, 2008.


JUDICIAL MISCONDUCT DEFINED

Judicial Misconduct has been defined by Jeffrey M. Shaman, DePaul University Law, Steven Lubet, Professor, Northwestern University Law, James J. Alfini President and Dean, South Texas College of Law, U.S. Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit,
in part as:

Judicial action taken without any arguable legal basis and without giving notice and an opportunity to be heard to the party adversely affected is far worse than simple error or abuse of discretion; its an abuse of judicial power that is prejudicial to the effective and expeditious administration of the business of the courts. See 28 U.S.C. § 351(a); Shaman, Lubet & Alfini, supra, § 2.02, at 37 (Serious legal error is more likely to amount to misconduct than a minor mistake.

See Opinion online at:

http://www.ca9.uscourts.gov/coa/newopinions.nsf/F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement

.

“[A] judge is guilty of “oppression in office” when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the circumstances and amount to an excessive use of judicial authority.

State v. Colclazier
, 2002 OK JUD 1, 106 P.3d 138.

“Where honesty or integrity are at issue, a single action can result in a finding of judicial misconduct.” In re Hill, 152 Vt. 548, 572-75, 568 A.2d 361,373-75 (1989);

“Canon 3A(5) is violated where there is a pattern of unreasonable delay or where a particular instance is so lacking in legitimate justification that it is willful. See Matter of Long, 244 Kan. 719, 724, 772 P.2d 814, 818 (1989) (Canon 3A(5) violated where delay is significant, extensive, and unjustified”); Sommerville, 364 S.E.2d at 23 n.3 (sanctions appropriate under Canon 3A(5) where there is a pattern of delay resulting from either willful neglect of, or manifest inability to effectively perform, judicial duties); Matter of Alvino, 100 N.J. 92, 97 n.2, 494 A.2d 1014, 1016 n.2 (1985) (delay can violate Canon 3A(5) if “willful” or “typical of the judge’s work”);” See URL: http://www.libraries.vermont.gov/SUPCT/157/op90-478.txt.




Judicial Independence Equals Unaccountability

In the case of federal judges, it is the opinion of this author that Judicial Independence Equals Unaccountability. There are several methods of disciplining rogue judges that include:

Except for impeachment, the other three methods are controlled by Judges and most often without public scrutiny. If federal judges are determined to undermine each of these methods, they can do so quite easily and appear to be acting within the law. This is easily done with a process or tactic that this author calls “herding”. Herding being the shepherd or the cowboy leads the sheep or cows to the desired destination or outcome. In the sense for which this author uses the term “herding”, judges leads you to the desire outcome by choosing the method and controlling both the facts and their publication. Specifically, complaints under the Judicial Misconduct and Disability Act are summarily dismissed because the allegations are “directly related to the merits”. See Methods Page and Section 351 Page. This suggests that your allegations of misconduct, if true, can be addressed through the appellate process. Chief Judge J. L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, has become very adept at this tactic and has defined judicial misconduct out of existence. Not only has he defined judicial misconduct out of existence he does not burden himself to list the allegations of misconduct or test them for veracity. Secondly, if you choose to sue the Judge, then your complaint will be summarily dismissed because the miscreant judge has “absolute immunity” even if your allegations of misconduct are true. See Graham’s Lawsuit. The appeals court need not even mention what the judge was being sued for in the first place. A judge could maliciously and knowingly improperly jail some one and still not be personally liable. The judges will say that the appellate process is your answer. Save impeachment, you now have only have the appellate process to address allegations of misconduct. The appeals court and in this case, the Eleventh Circuit, U.S. Court of Appeals, can and does render an unpublished opinion that simply ignores your allegations of misconduct or even outright lie. See Appellate Review. On Appeal the Eleventh Circuit picks the impertinent “facts” and chooses to publish or not publish. A graphical view of the overall process as to how complaints of misconduct against Judge Graham were handled can be found at : mmason.freeshell.org/herding_complaints_section or mmason.freeshell.org/mockery.jpg. Specifically, the appellate process with Judge Graham has been undermined with the following tactics:

Does A Mere Clause In a Sentence Represent Meaningful Appeal?

April 7, 2008


Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham


Point of this Post

The Eleventh Circuit, U.S. Court of Appeal cited a mere clause in a sentence in an unpublished opinion and apparently considered this “meaningful appellate review” of Judge Graham’s failure to disqualify. This appeal was captioned under Eleventh Circuit Case No. 01-13364 and Dist. Ct. Case No. 99-14027-CV-Graham/Lynch. This appeal was ultimately concluded with an unpublished opinion that to be kind and civil amounted to nothing more than dishonesty and a reckless disregard for the “rule of law”. See Undermining An Appeal Right to see other ways this appeal was undermined.

It couldn’t be more clear that the Judges at the Eleventh Circuit, U.S. Court of Appeal, are not going to let the “rule of law” prohibit them from achieving their desired outcome-a total vindication of Judge Graham’s miscreant behavior. This behavior is fully documented at: http://mmason.freeshell.org/CoreAllegations.htm

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

MOTION FOR REHEARING

The Eleventh Circuit was told of their “mistake” or omission of failing to decide whether Judge Graham should or disqualified or recused himself. Judge Stanley F. Birch, Jr., writing for the panel, rejected Mason’s plea to consider whether Judge Graham should have disqualified or recused himself. On Jan 31, 2003, Judge Birch said: “The petition(s) for rehearing filed by appellant, Marcellus M. Mason, Jr., is DENIED.” See Rehearing Denial Order.

Disqualification on Appeal

See Case Background Information.
On March 11, 2002, Marcellus Mason filed a brief with the Eleventh Circuit, U.S. Court of Appeal that stated, among other things, Judge Graham should have disqualified or recused himself. See Appellant’s Brief. This brief excoriates Judge Graham and accuses him of the following:

  • Usurping authority by allowing a Magistrate to render an injunction.
  • Usurping authority by prohibiting out of court direct communication with the government
  • Usurping authority by administering the Florida Public Records Act.
  • Intentionally lying and misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for more than 19 months.
  • Mismanagement of the Case by Allowing scores of motions and filings to languish without being decided.

These allegations, and others, are fully documented at http://mmason.freeshell.org/CoreAllegations.htm.

    Meaningless Appeal

    On October 16, 2002, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus asserted:

    “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, page 10. This is the sum total of appellate review as to whether Judge Donald L. Graham should have been disqualified due to misconduct. The “opinion” is 14 pages long. There is absolutely no discussion as to whether the allegations of misconduct are true or not.

Rehearing Motion

Subsequent to the Eleventh Circuit’s failure to decide whether or not Judge Graham should have disqualified or recuse in their “opinion”, Mason filed motion informing the Court of this “oversight” or failure.

This Court’s opinion does not address whether or not the district court abused his discretion by not disqualifying. Plaintiff raised this issue in his Initial Brief at pages 30-33. Mason contends that the district court is in violation of Canon 1, Canon 3, Code Of Conduct For United States Judges Code Of Conduct For United States Judges. Plaintiff’s motion to disqualify was submitted on February 7, 2001, (Doc. 460), which was submitted prior to Defendants’ motions for dismissal in the form of sanctions, the first of which was not submitted until March 2, 2001, (Doc. 511). The district judge should have never taken action on the Defendant’s motion for dismissal that was submitted on March 2, 2001 because he was required to disqualify on Mason’s motion submitted on February 7, 2001.

Pg. 13, Motion For Rehearing.

On Jan 31, 2003, Judge Birch said: “The petition(s) for rehearing filed by appellant, Marcellus M. Mason, Jr., is DENIED.” See Rehearing Denial Order.


Compare Judge Graham To Judge Duross Fitzpatrick

In Chudasama v. Mazda Motor Corp., 123 F.3d 1353 (C.A.11 (Ga.), 1997), Judge Duross Fitzpatrick, Middle District of Georgia, the district court was excoriated for mismanagement of a case. 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.

Open Letter to Judge Donald L. Graham Dated April 3, 2008

April 3, 2008

Judge Donald L. GrahamJudge Donald L. Graham

scales.gifJustice Turned On Its Head!


Thursday, April 03, 2008

RE: FYI: DC Case No. 99-14027-CV-Graham/Lynch

Dear Mr. Graham:

As you well know, I have nothing but the utmost disrespect and disdain for you personally. I recently spent 41 days in jail because you framed me. See http://mmason.freeshell.org/framed.htm#quick . I believe this is a criminal act on your part. I can tell you that I am more determined than ever to see that you are impeached and led off in handcuffs like I was for your criminal behavior. I don’t care how long it takes or what I have to go through, but I won’t stop trying to hold you accountable under the law. Do you understand? Do you understand? If you type http://mmason.freeshell.org/openletter/ you will see a directory with all the letters I am sending out in my new letter writing campaign. This letter is located at http://mmason.freeshell.org/openletter/Graham08282008.rtf and as an open letter and a post to my blog at: https://mcneilmason.wordpress.com.

As I examine an officially filed court document, Docket No. 934, http://mmason.freeshell.org/DE-934/de934.pdf , it is not quite clear to me what the purpose of our little chat was on January 14, 2005. It appears that you are trying to circumvent the appellate review you know is coming. This document has no signature, nor is signed by any judge, consequently it is not clear to me what this document purports to be. This is not a legal document. Given that it is not signed by any judge, or anybody else for that matter, I can only assume that it is only someone’s personal opinion. The law requires injunctions or changes to injunctions to be put in writing. “[I]f the district judge neither puts pen to paper nor identifies an authoritative document, nothing of legal significance has happened–for oral statements are not judgments and under Rule 65(d) have no legal effect, and until the judge enters something meeting the general description of an injunction or other judgment, the matter remains pending in the district court.” Hispanics United v. Village of Addison IL, 248 F.3d 617, 620-21 (7th Cir., 2001). “Oral statements are not injunctions. A judge who proclaims “I enjoin you” and does not follow up with an injunction has done nothing.” When a judge does not record an injunction or declaratory judgment on a separate document, the defendant is under no judicial compulsion. …[a]n opinion or statement in court “is not itself an order to act or desist; it is a statement of reasons supporting the judgment. The command comes in the separate document entered under Fed.R.Civ.P. 58, which alone is enforceable. There must be a separate document, with a self-contained statement of what the court directs to be done.” Bates v. Johnson, 901 F.2d 1424, 1427-28 (C.A.7 (Ill.), 1990).

As you well know, you issued a “pre-filing injunction” sua sponte on September 20, 2001. I’ve done a great deal of research on sua sponte issued pre-filing injunctions and have found that every U.S. Court of Appeal, including the Eleventh Circuit, and other jurisdictions that I have run across have rejected sua sponte issued pre-filing injunctions. See http://mmason.freeshell.org/SuaSponte.htm . These courts, including the Eleventh Circuit, have stated unequivocally that sua sponte issued pre-filing injunctions are violative of due process. Any order that violates due process is void.

If the purpose of our little chat on or about January 14, 2005 was to modify the sua sponte injunction of September 20, 2001. The law does not allow you to sua sponte modify a sua sponte issued filing injunction. I will require due process and something in writing stating how the sua sponte issued pre-filing injunction was modified. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”). In Weaver v. Sch. Bd., 2006 U.S. App. LEXIS 8128 (unpublished) (11th Cir. 2006), the Court held that a litigant was entitled to “notice and an opportunity to be heard” before a restriction was imposed on the litigant’s ability to challenge an injunction. Otherwise, I assume that the sua sponte issued pre-filing injunction has not been modified and you will receive requests accordingly. Moreover, with respect to the case being “closed” and Rule 60(b), Fed.R.Civ.P.: “Even after a judgment has become final and even after an appeal has been lost, Civil Rule 60(b) gives losing parties additional, narrow grounds for vacating the judgment.” GenCorp, Inc. v. Olin Corporation, 477 F.3d 368;2007 U.S. App. LEXIS 3102 (6th Cir., 2007).

You have proven to me that you are not constrained by the rule of law. You have a long history of lawlessness and misconduct that includes, but is not limited to, the following:
• You have lied and intentionally misrepresented the law.
• You usurped legal authority by allowing a Magistrate to issue an injunction which is prohibited under 28 U.S.C. 636(b)(1)(a) and ordering me not to communicate with my government, Highlands County Board of County Communications.
• You refused to rule on a motion for a preliminary injunction that had been pending for more than 17 months.
• You allowed scores of other important motions to simply linger without addressing them.
• You have abused the criminal contempt procedure by taking a void sua sponte issued pre-filing injunction and making it the basis of criminal contempt information.
• You have used the criminal contempt process to force the withdrawal of a lawsuit.
• You have awarded a massive $200,000 in attorney’s fees to Highlands County against an indigent me, not on the quality of the underlying lawsuit, but based upon your mere speculation about my motive.
• You have repeatedly improperly denied me access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions.
• You have falsely completed a Civil Justice Reform Act Report, “CJRA” in order to conceal the fact the fact that you had a motion for a preliminary injunction pending for more than 17 months.
Support for these allegations are fully set forth at: http://mmason.freeshell.org/CoreAllegations.htm and at https://mcneilmason.wordpress.com and
numerous other places. Mr. Graham, I am incapable of simply accepting this kind of lawlessness and behavior and moving on. In a word, I simply will not move on under any set of circumstances.

Mr. Graham you have enjoyed a pyrrhic victory at the cost of your reputation and that of your colleagues. It is kind of selfish of you to put your colleagues in the position that you have placed them in. You have subjected your colleagues at the Eleventh Circuit to ridicule by forcing them to make lawless and dishonest decisions in order to conceal your lawless behavior and hubris. I mock them at: https://mcneilmason.wordpress.com and layout their entire repertoire of tricks and dishonesty at: http://mmason.freeshell.org/methods.htm . I have defined you with your record. Anytime somebody wants to know something about you, they Google or Yahoo your name and it leads to one of my many websites and pages.

Mr. Graham, it would be in your best interests and those of your colleagues if you comport yourself to the rule of law. What have you gained by all of your lawless behavior? You have damaged your own reputation and are in the process of destroying other judges’ reputation as well. It says something about your character to put other judges in the position you have placed them.

Ultimately, I am seeking public scrutiny of your record. When that goal is reached, and I won’t quit my efforts until that time, the public outcry for disciplinary action against you and your enablers will be overwhelming. In the interest of the Federal Judiciary and your friends, you should consider resigning and firing Judge Lynch.

Marcellus Mason