Archive for the ‘nonpublication’ Category

Florida Judge Thumbs His Nose at U.S. Supreme Court Rulings on Due Process And Attorneys’ Fees

April 15, 2008

Judge Donald L. GrahamJudge Donald L. Graham, “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).

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).

Question

If Judge Graham has nothing to hide, why doesn’t he allow Mason Due Process as required by the U.S. Supreme Court?

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).

SHORT CASE SUMMARY

Marcellus M. Mason, Jr. of Sebring, Fl. filed an employment discrimination lawsuit against the Highlands County Board of County Commissioners and Heartland Library Cooperative and other governmental entities and individual government employees in February 1999. The case was originally assigned to then Chief Judge Edward Davis who retired. On February 20, 1999, Judge Davis allowed Mason to proceed in forma pauperis, “IFP”, or to proceed without paying the required filing fee for a lawsuit. Docket Entry No. 3. This case was ultimately assigned to Judge Donald L. Graham and Magistrate Frank Lynch Jr., Case No. 99-14027-CV-Graham/Lynch. After protracted litigation, the case was dismissed pursuant to Fed.R.Civ.P. 41(b), not on the merits of the case, but based upon banned and irrelevant out of court constitutionally protected and legal communications between Highlands County and Mason. See Report and Recommendation, “R&R” (D.E.766), Order adopting R&R (D.E791). See Banned Communications. Judge Graham declined to reach the merits of the case as there were summary judgment motions pending on the day the case was closed. See Docket Sheet, Defendant’s motion for summary judgment, (Doc. 769);(Doc. 770), and the Plaintiff’s motion for summary judgment as well, (Doc. 507); (Doc. 667); (Doc. 668); (Doc. 706); (Doc. 797). More Background. When the case was dismissed on June 20, 2001 Judge Graham and his Magistrate Frank Lynch, Jr. expressly stated that the lawsuit was not frivolous. “However, there remain, as this Court recommended, various viable claims for trial.” See Report and Recommendation, (D.E #766, pg. 5), and Order Adopting R&R, (D.E. 791).

The United States Supreme Court

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). “The court must afford the sanctioned party due process, both in determining that the requisite bad faith exists and in assessing fees. Id. Due process requires that the attorney (or party) be given fair notice that his conduct may warrant sanctions and the reasons why… “ In Re Mroz, 65 F.3d 1567 (11th Cir. 1995); Thomas v. Tenneco Packaging Co., 293 F.3d 1306 (11th Cir. 2002); 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”); First Bank Of Marietta v. Hartford Underwriters Insurance Company, 2002 U.S. App. LEXIS 21117,*25;2002 FED App. 0356P (6th Cir. 2002); In Re Atlantic Pipe Corp., 304 F.3d 136, 143 (1st Cir. 2002)(“[A] district court’s inherent powers are not infinite… the use of inherent powers must comport with procedural fairness.”) Lockary v. Kayfetz, 974 F.2d 1166,1170 (C.A.9 (Cal.), 1992); In re: Rimsat, 212 F.3d 1039 (7th Cir., 2000);In re Kujawa, 256 B.R. 598, 611-12 (Bankr.8 th Cir., 2000).

The Supreme Court on Attorney’s Fees

[A] plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.Christiansburg Garment Company v. Equal Employment Opportunity Commission, 434 U.S. 412, 422 (1978). As stated above, Judge declined to reach the merits of the lawsuit, but instead dismissed the case because Mason continually attempted to “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…On June 20, 2001, in view of Mason’s repeated refusal to comply with the Court’s rules and orders, the Court dismissed case number 99-14027..” See pgs. 4,5Docket No. 878, Sua Sponte Injunction. Additionally, there were summary judgments pending on the day the case was dismissed.

Judge Graham Defies The U.S. Supreme Court

On September 20, 2001, Judge Graham rendered a pre-filing injunction or vexatious litigant 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 then asserts his authority “Federal courts have “both inherent power and constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions.”” Even Judge Graham recognizes that there is constitutional right of access to the courts. See Pg. 7 (“This screening requirement best balances the interest in constitutionally mandated access to the federal courts..”). In this same sua sponte issued pre-filing injunction Judge Graham makes a so-called “finding of bad faith“.

Bad “Faith Finding”

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.

Additionally, as further proof that Teflon Don is willfully flaunting the law is the fact that Judge Graham was presented with a motion specifically requesting a due process hearing with respect to the sua sponte issued prefiling injunction of September 20, 2001 on 23, 2002. See Document 914, pgs. 19-24. At page 1, this motion asserts: “The injunction violated Mason’s well-established due process rights. It is inexcusable that a federal judge would knowingly issue this type of injunction in violation of Mason’s due process rights.” On January 31, 2003, Judge Graham denied the motion and refused to comply with Mason’s due process requests even though Judge Graham was in possession of a motion citing the same cases that are cited on this post.

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.

Document No. 928. It can not be argued that Judge is not intentionally disrespecting the law.

Award of Attorney’s Fees Based On “Bad Faith Finding” And Sua Sponte Issued Pre-Filing Injunction

Judge Graham’s order, sua sponte issued pre-filing injunction, of September 20, 2001, also makes a specific finding of bad faith. Judge Graham stated, “It has become clear to the Court that Mason is proceeding in bad faith.” See Report And Recommendation, Docket Entry No. 882, and Order Adopting Report and Recommendation, Docket Entry No. 891 . As stated previously by the District Court and by this Court herein, Judge Graham has already made a finding of bad faith. This takes the case beyond the analysis of frivolity. See pg. 4.

Christiansburg Garment Company v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978). Here, it is clear that based upon Judge Graham’s previous findings of bad faith, that the Christiansburg standard is applicable. See pg. 3.  When the case was dismissed on June 20, 2001 Judge Graham and his Magistrate Frank Lynch, Jr. expressly stated that the lawsuit was not frivolous. “However, there remain, as this Court recommended, various viable claims for trial.” See Report and Recommendation, (D.E #766, pg. 5), and Order Adopting R&R, (D.E. 791).

PROOF JUDGE GRAHAM KNEW THE LAW AND SIMPLY IGNORED IT

After Judge Graham, rendered the sua sponte issued pre-filing injunction of September 20, 2001, Mason filed a motion demanding his due process rights on September 7, 2002. At pages 10, 11, this motion informs Judge Graham of due process rights with respect to pre-filing injunctions.

Prior to issuing this illegal injunction, this court failed to give Mason the required constitutional notice. See Tripati v. Beaman, 878 F.2d 351, 354(10th Cir. 1989)(litigant “is entitled to notice and an opportunity to oppose the court’s order before it is instituted”); In re Oliver, 682 F.2d 443, 445 (3d Cir. 1982); Matter Of Hartford Textile Corp., 681 F.2d 895,896 (2nd Cir. 1982); Werner v. State Of Utah, 32 F.3d 1446, 1448 (10th Cir. 1994); Brow v. Farrelly, 994 F.2d 1027, 1038 (3rd Cir. 1993); Cok v. Family Court Of Rhode Island, 985 F.2d 32, 35 (1st Cir. 1993).

However, on January 23, 2003, Judge Graham simply states:

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 Entry No. 928.

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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.

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.

Will the Judges In the Eleventh Circuit Lie to Protect Judge Graham?

March 28, 2008

Will the Eleventh Circuit, U.S. Court of Appeal lie to protect Judge Donald L. Graham? The answer is a resounding yes.

Judge Donald L. GrahamJudge Donald L. Graham


Lying About Appellate Review Of Judge Graham’s Disqualification The lie told by the Eleventh Circuit is really quite simple. As set forth below in Case No. 01-13664, the Eleventh Circuit declined to review the issue of whether Judge Graham should have disqualified or not due to alleged misconduct in their decision of October 16, 2002. However, sometime in early 2005, Marcellus Mason subsequently filed a petition for mandamus seeking appellate review as to whether or not Judge Graham should have disqualified due to alleged misconduct. On March 16, 2005, Case No. 05-10623, pg. 2, the Eleventh Circuit promptly lied by explicitly suggesting that they had reviewed this matter. This is dishonesty of the highest magnitude. Case No. 01-13664
In an unpublished opinion, [Case No. 01-13664] the Eleventh Circuit, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus have expressly stated that allegations of judicial misconduct are not reviewable on appeal. Theses allegations were not tested for veracity they were simply ignored. Specifically, in the opinion rendered 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. There is absolutely no discussion as to whether the allegations of misconduct are true or not.

Eleventh Circuit Case No. 05-10623

On March 16, 2005, Case No. 05-10623, pg. 2, the Eleventh Circuit and Judge Rosemary Barkett asserted the following:

In this case, Mason is not entitled to the recusal of Judge Graham because final judgment has been entered in his employment discrimination case, and he raised Judge Graham’s denial of his recusal motion on appeal.

This is a classical example of how a half- truth can be a lie because it is misleading. Mason did raise the issue of Judge Graham’s failure to disqualify (Case No. 01-13664), however, as fully set forth and documented above, the Eleventh Circuit refused to review this issue or to test the veracity of the allegations of misconduct and abuse by Judge Graham which Mason had asserted in his brief.


Are Allegations of Misconduct Reviewable on Appeal?

March 27, 2008

Judge Donald L. Graham
judgegraham.jpg

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 Meaningless Appeal

Marcellus Mason filed appellate briefs with the Eleventh Circuit, U.S. Court of Appeals, in two separate cases, 01-13364 and 01-15754, accusing U.S. Dist. Judge Donald L. Graham of the following misconduct and mismanagement:

  • Lying and intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for about 19 months.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction in clear violation of law and 28 U.S.C. § 636 (b)(1)(A) which 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,…”
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction to prohibit lawful and protected out of court communication between a citizen and his government.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction placing restrictions on how public records are accessed under the Florida Public Records Act that the State of Florida does not allow. Judge Graham has refused to state where a federal judge gets the legal authority to administer public records under the Florida Public Records Act.
  • Allowing scores of significant pre-trial motions to go undecided for months without taking any action.
  • Involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction or vexatious litigant injunction which ultimately formed the basis of a criminal contempt complaint and conviction. See Framing An Innocent Person.

In an unpublished opinion, [Case No. 01-13664] the Eleventh Circuit, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus have expressly stated that allegations of judicial misconduct are not reviewable on appeal. Theses allegations were not tested for veracity they were simply ignored. Specifically, in the opinion rendered 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. There is absolutely no discussion as to whether the allegations of misconduct are true or not.

Similarly, a petition for mandamus [Case No. 01-15754] was submitted to the Eleventh Circuit on or about October 2, 2001. This petition accused Judge Graham of misconduct. The Eleventh Circuit, Judges Rosemary Barkett, Jr., Susan H. Black, and Stanley Marcus, simply ignored the allegations of misconduct by stating only the following in a one sentence unpublished “opinion” :

The ” petition for writ of mandamus and petition for writ of prohibition” is DENIED.

mmason.freeshell.org/15754/mandamus_denied.pdf .

mandamus


References
Case No. 01-13664 Appellant’s Brief

Case No. 01-15754 Mandamus Petition