Archive for the ‘U.S. Court of Appeal’ 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Dimitrouleas Reversed While Colleague Judge Donald L. Graham Affirmed by Killing The Appeal, and Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata. In each case the Eleventh Circuit chose to deploy an unpublished opinion to affirm and protect Judge Graham while his colleagues suffered reversals in published opinions.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).

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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.

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)

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

May 1, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

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 In each case the Eleventh Circuit chose to deploy an unpublished opinion to affirm and protect Judge Graham while his colleagues suffered reversals in published opinions.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

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

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

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

    Attorneys fees awards may not bankrupt a party. “A court should refrain from imposing a monetary award so great that it will bankrupt the offending parties or force them from the future practice of law.Baker v. Alderman, 158 F.3d 516 (C.A.11 (Fla.), 1998).

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

    Judge Dimitrouleas

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

    Judge Graham Affirmed For An Even More Egregious Violation

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

    Eleventh Circuit Sticks In The Knife

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

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:

Judge Graham Refuses to Deny He is a Liar

April 6, 2008



Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham


Calling Judge Graham a Liar to His Face

On December 16, 2004, Marcellus Mason filed a one page letter with Judge Graham asking for permission to file a motion stating that Judge Graham should have disqualified for, among other things, lying or intentionally misrepresenting the law. “Mr. Graham, you stated in my lawsuit that I could state a claim under 42 U.S.C. §1981 against a state actor while at the very same time you allowed a Plaintiff to state a claim under 42 U.S.C. §1981 against the very same state actor.” See Docket Entry No. 932. It is a serious charge to accuse a federal judge of lying. If the allegation is false, then it is surely would be contempt. The record clearly demonstrates that Judge Graham has no compunction about concocting a contempt charge out of “whole cloth”. See Framing an Innocent Man.

Judge Graham Refuses to Defend the Integrity of the Court

Judge Graham could have denied the allegation that he was untruthful, but he didn’t. Judge Graham could have stated the allegation was without merit and had no record support. Instead Judge Graham simply gave himself permission to ignore the allegation of untruthfulness by stating:

THIS CAUSE came before the Court upon Plaintiff’s correspondence to the Court dated December 16, 2004 requesting permission to file a motion. The Plaintiff’s stated reason for filing the Motion is that the Court should have disqualified itself because, among other things, it intentionally misrepresented the law to the Plaintiff.
THE COURT has considered the correspondence and the pertinent portions of the record, and being otherwise fully advised in the premises, it is ORDERED AND ADJUDGED that Plaintiff’s request is DENIED.

See Docket Entry No. 931.

Record Support for the Lie Allegation

A hallmark for this website and related websites is there is always record support for every allegation made. This post will be no different. Judge Graham lied and intentionally misrepresented the law. Judge Graham told Mason that the law precluded him from asserting claims of intentional discrimination under 42 U.S.C. §1981 against a state actor, Highlands County Board of County Commissioners. See Docket Entries Nos. 435, pg. 3 and
466
. At the very same time, Judge Graham was allowing a plaintiff in nother case Fa Nina St. Germain v. Highlands County, Case No. 00-14094 to assert claims under 42 U.S.C. §1981 against the very
same state actor, Highlands County Board of County
Commissioners. See Summary Judgment, Case No. 00-14094. It might be noted that Ms. St. Germain was represented by counsel, Peter Helwig, Lakeland, FL and Mason was not represented by counsel.

Lying Not Judicial Misconduct

Judge J.L. Edmondson, Chief Judge, Eleventh Circuit, U.S. Court of Appeal has expressly held that lying or intentionally misstating the law is not judicial misconduct. See Complaint 05-0008. The comments to Canon 1, Code of Conduct For United States Judges state:

Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favor. Although judges should be independent, they should comply with the law, as well as the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law.


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


Judicial Conference: Complaint of Misconduct, Judge Donald L. Graham

April 2, 2008

April 1, 2008

214 Atterberry Drive

Sebring, FL 33870

Judicial Conference
Committee on Judicial Conduct and Disability
Attn: Office of General Counsel
Administrative Office of the United States Courts
One Columbus Circle, NE 39
Washington, D.C. 20544 40

Re: Complaint of Misconduct, U.S. Dist. Judge Donald L. Graham

Dear Sir/Madam:

In order to more easily investigate this matter and keep costs down, this letter has been posted to the Internet at: URL, http://mmason.freeshell.org/JudicialConference.doc or http://mmason.freeshell.org/JudicialConference.htm . I am more than willing to supply documentation to prove any allegation raised here. Please feel free to contact me for any assistance in this matter. These are serious charges that if true, casts a pall over the integrity of the Federal Judiciary. Moreover, it is unfair to other judges to have Judge Graham get away with misconduct, while judges like Judge Manuel L. Real are sanctioned. Chief Justice John G. Roberts Jr., in his 2007 Year-End Report on the Federal Judiciary has stated that “[t]he Judiciary cannot tolerate misconduct. The public rightly expects the Judiciary to be fair but firm in policing its own.”

I have submitted multiple complaints of misconduct against Judge Donald L. Graham, S.D. Fla. to the Judicial Council of the Eleventh Circuit and to the Chief Judge, primarily Judge J.L. Edmondson. These complaints have been dismissed wholesale without any investigation at all. It would appear that Judge Edmondson has defined judicial misconduct out of existence. Each complaint filed against Judge Graham can found at: http://mmason.freeshell.org/372c/ . The following complaints were submitted to the Judicial Council: 01-0054, 01-0068, 02-0052. As the statute changed from 28 U.S.C. §372(c) to §351, new complaints were filed 2005. [05-0008,05-0011,05-0012,05-0013,05-0020,05-0021]. These complaints may also be reached by clicking on their number at the homepage, http://mmason.freeshell.org.

Judge Graham’s misconduct has managed to escape appellate review, both by way of mandamus and direct appeal. The Eleventh Circuit, without denying the allegations of misconduct has simply ignored the issues. It is inconceivable that a Court of Appeal would ignore a jurisdictional issue like whether the Judge should have disqualified or not, however the Eleventh Circuit has done just that. Among other places, this fact is documented at : https://mcneilmason.wordpress.com , See post entitled Are Allegations of Misconduct Reviewable on Appeal? .

I have setup a web portal, http://mmason.freeshell.org/methods.htm , which takes the allegations of misconduct and shows the reader how they were disposed of either by lying or simply ignoring the issues. This page has a flowchart with clickable links. It traces the allegations of misconduct through the appellate process and through Section 351 complaints as well. This page was created so the reader could see the overall picture and the level of dishonesty involved.

Given this matter is extraordinary, I would appreciate it if you would you use your authority to conduct an additional investigation or more accurately conduct an initial investigation since the Judicial Council has never conducted an investigation in the first place. In the alternative, I would appreciate if you would return the matter to the judicial council with directions to undertake an investigation. In an opinion publicly available on the Internet, you have stated:

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

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

The complaints submitted to the Judicial Council and to the Eleventh Circuit include, but is not limited to, included the following:

  • Lying and intentionally misrepresenting the law. See Documented Lie. Judge Graham told Marcellus Mason that he could not state a claim against a state actor, Highlands County Board of County Commissioners, under 42 U.S.C. §1981 while he was simultaneously allowing a represented Plaintiff in another case to state a claim under 42 U.S.C. §1981 against the very same state actor, Highlands County Board of County Commissioners.
  • 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. Sua Sponte means on the Judges own motion and without notice and opportunity to respond prior to the issuance of the injunction. The law and Constitution requires such notice. 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. “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. (emphasis added)” E.g.,Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001). A void judgment is from its inception a legal nullity. U.S. v. Boch Oldsmobile 909 F.2d 657, 661 (1st Cir. 1990). It is incredible that the Eleventh Circuit has managed to avoid reviewing this sua sponte issued pre-filing injunction by all kinds of dishonest tricks. See http://mmason.freeshell.org/SuaSponte.htm# AppellateHistory.
  • Judge Graham refused to rule on a motion for a preliminary injunction that had been pending for about 19 months. A motion for preliminary injunction was submitted on November 24, 1999, and Judge Graham never ruled on the motion despite repeated requests. See Docket and Entry #39. The case was closed on June 20, 2001. Even more incredible, the Eleventh Circuit, after 17 months stated that I didn’t have a right to have my motion decided. See http://mmason.freeshell.org/junklaw/NoRightToHaveMotionDecided.html or https://mcneilmason.wordpress.com/ , click on You Don’t have A Right to Have Your Motions Decided.
  • Judge Graham used the contempt process and AUSA Robert Waters to force Marcellus Mason to drop an embarrassing lawsuit against Judge Graham. Marcellus Mason has offered to take a polygraph test under penalty of perjury and challenges Judge Graham to do the same. This offer to take a polygraph test has been sent by both letters and email to the U.S. Department of Justice and the FBI. Additionally, Federal Public Defender, Leon Watts was a witness to the conversation. Incidentally, Mason declined to drop the lawsuit. Either Mason has committed a crime or Judge Graham has committed a crime! Both Mason and Judge Graham should be offered polygraph tests!
  • Judge Graham used a void sua sponte issued pre-filing injunction to award attorney’s fees of $200,000 against an indigent Plaintiff whom Judge Graham knew was unemployed. See Docket Entry No. 882 and 891. Judge Graham eschewed and rejected the law and the U.S. Supreme Court which states that attorney’s fees may only be awarded against a Plaintiff if the lawsuit is found to be totally without merit. Judge Graham made no such finding because he could not due to the fact that he failed to evaluate pending summary judgment motions which set forth substantial facts supporting the lawsuit. Christiansburg Garment Co. v. EEOC ,434 U.S. 412, 422 (1978)(“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.”).
  • Judge Graham falsely completed a Civil Justice Reform Act, CJRA, report in order to conceal the fact that he had failed to rule on the preliminary injunction motion mentioned above. See False CJRA Report. Motions pending for more than six months must be included in the CJRA report. When told of this fact in a Judicial Misconduct and Disability Act complaint, Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeals, simply attacked Marcellus Mason. See Section 351 Complaint No. 05-008.
  • 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,…” Judge Graham has repeatedly refusing to cite legal authority for such an order. On direct appeal, Case No. 01-13664-A, the Eleventh simply refused to review this injunction for validity while it was quite willing to discuss the Plaintiff’s violation of the same. See http://mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm#opinion .
  • 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. See Docket Entry No. 201. On direct appeal, Case No. 01-13664-A, the Eleventh simply refused to review this injunction for validity while it was quite willing to discuss the Plaintiff’s violation of the same. See http://mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm#opinion .
  • 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 Florida Supreme Court has stated is not lawful. See Docket Entry No. 246. Judge Graham has refused to state where a federal judge gets the legal authority to administer public records under the Florida Public Records Act. On direct appeal, Case No. 01-13664-A, the Eleventh simply refused to review this injunction for validity while it was quite willing to discuss the Plaintiff’s violation of the same. See http://mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm#opinion .
  • Allowing scores of significant pre-trial motions to go undecided for months without taking any action. See Languishing Motions. This page list more than 30 filings, including summary judgment motions, that Judge Graham refused to act on.
  • Judge Graham denied in forma pauperis petitions or petition to waive filing fees on at least ten separate for no reason. See History of Arbitrary IFP Denials. In spite of the statutes and the U.S. Supreme Court’s edict that an in forma pauperis application can only be denied if the allegation of poverty is untrue or the action is frivolous. See Denton v. Hernandez, 504 U.S. 25 (1992).

This matter is not untimely because you have stated:

Moreover, there cannot be public confidence in a self-regulatory misconduct procedure that, after the discovery of new evidence or a failure to investigate properly or completely serious allegations of misconduct, allows misconduct to go unremedied in the name of preserving the “finality” of an earlier, perhaps misfired, proceeding. Pgs.8,9.

The Eleventh Circuit has affirmed Judge Donald L. Graham on appeal using unpublished opinions while reversing and excoriating other federal judges at the Southern District of Florida and in the Circuit for the exact same set of facts. The links provided here and below will demonstrate that U.S. District Judge Ursula Ungaro-Benages, S.D. Fla., mmason.freeshell.org/WorldThrust.htm , U.S. District Judge John Antoon II, M.D. Fla., http://mmason.freeshell.org/collins.htm, U.S. District Judge Daniel T. K. Hurley, mmason.freeshell.org/martinez.htm ,S.D. Fla., U.S. District Judge Marvin H. Shoob, N. D. of Georgia, mmason.freeshell.org/pleming.htm, all were reversed and excoriated on appeal while Judge Graham was affirmed for the exact same set of facts.

Judge Graham’s record has been widely distributed via email campaigns and a mailing list that was composed of over 150,000 recipients on a least two occasions. Selected people have received information about Judge Graham on a daily basis. I have multiple websites which depicts Judge Graham’s record. Hundreds of letters and faxes have been sent out to attorneys and judges at all levels. All of my websites have been indexed by all the major Internet Search Engines like Google, Yahoo, MSN, ask.com, and others. Try searching by using “Judge Donald L. Graham.” It is going to be impossible to discipline other judges given Judge Graham’s record. This will build resentment in the judiciary because it shows favoritism and that Judge Graham is above the law.

Judge Graham has never been asked to deny any of the above listed allegations. You need only ask Judge Graham to deny these allegations.

Sincerely,

Marcellus M. Mason, Jr.

You Don’t have A Right to Have Your Motions Decided

March 29, 2008

This article is part of a series and an expose on just how far the Eleventh Circuit, U.S. Court of Appeals will go to conceal the judicial misconduct and miscreant behavior of U.S. Dist. Judge Donald L. Graham. The decisions documented here by the Eleventh Circuit are characterized by extreme dishonesty and are no more than “junk law” that it would not think of publishing. This type of jurisprudence simply cannot be accepted in a free society like the United States of America.


Judge Donald L. GrahamJudge Donald L. Graham

Does a litigant have a right to his or her motion decided?

According to the Eleventh Circuit, U.S. Court of Appeals and Judge Ed Carnes , a litigant does not have the right to have his motion decided. On April 26, 2001, Judge Ed Carnes opined:

His mandamus petition, however, is frivolous because he has failed to establish that he is entitled to mandamus relief to compel the district court to rule on his motion for preliminary injunction.

See Judge Carnes Opinion.


Factual Background

On November 24, 1999, Case No. 99-14027-CIV-Graham/Lynch, Judge Donald L. Graham was presented with a motion for a preliminary injunction. See Docket Entry No. 39. The case was ultimately closed on June 20, 2001 and Judge Graham NEVER decided the motion one way or the other. On or about March 8, 2001, Marcellus Mason filed a petition for mandamus, in forma pauperis or without paying court filing fees due to indigence, with the Eleventh Circuit to force Judge Graham to rule on the pending motion for a preliminary injunction. On April 26, 2001, Judge Ed Carnes, 17 months after the motion was submitted, as fully stated above, ruled that Mason does not have the right to have his motion decided.

The Law and the Right to Have Motions Decided

A Court confronted by a motion authorized by the Rules must decide the motion within a reasonable time…the right of a movant to have a motion decided is so clear that it will be enforced under proper circumstances by mandamus.US East Telecommunications v. US West Inf. Sys., 15 F.3d 261 (2nd Cir. 1994).

Published Decision Reaches a Different Result

Compare the above and Judge Graham to Judge Duross Fitzpatrick, now deceased, in Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (C.A.11 (Ga.), 1997), a published decision, where the Eleventh Circuit stated : “Failure to consider and rule on significant pretrial motions before issuing dispositive orders can be an abuse of discretion.” Wonder how Judge Duross Fitzpatrick would have felt about this disparity?


Links to Other Dishonest Tactics Used By the Eleventh Circuit

A Web Portal On Judge Donald L. Graham and the Eleventh Circuit, U.S. Court of Appeals


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

Judge Donald L. Graham and US Attorney R. Alexander Acosta Frame Innocent Man

March 26, 2008

FRAMING AN INNOCENT PERSON AND OTHER CRIMINALITY AND MISCONDUCT

One of the most serious allegations is that Judge Donald L. Graham framed a man with the help of the U.S. Attorney. This is a quick read less than five minutes. See

http://mmason.freeshell.org/framed.htm#quick
. This page documents how U.S. Judge Donald L. Graham used US Attorney R. Alexander Acosta, AUSA Theodore Cooperstein, and AUSA Robert Waters U.S. Judge Donald L. Graham to frame an innocent by concocting a criminal misdemeanor. This story is incredible in that these people took a clearly void sua sponte issued pre-filing injunction or vexatious litigant injunction and made it the basis of criminal contempt complaint. Even more incredible is that the Eleventh Circuit has absolutely refused to review this sua sponte issued pre-filing injunction on multiple occasions. See http://mmason.freeshell.org/framed.htm#appellate_review

The misconduct is really a two part story consisting of Judge Graham’s misconduct and his colleagues efforts to conceal it. One of the problems I have had is not documenting these allegations, but organizing them. I have a massive amount of information on a website. mmason.freeshell.org.

I have a page called Core Allegations of Misconduct at : http://mmason.freeshell.org/CoreAllegations.htm .
This page contains links that document the following:

  • Judge Graham lied and intentionally misrepresented the law.
  • Judge Graham and his Magistrate 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 Mason not to communicate with his government, Highlands County Board of County Communications.
  • Judge Graham refused to rule on a motion for a preliminary injunction by Marcellus Mason that had been pending for more than 17 months. As a matter of fact, the Eleventh Circuit refused to make Judge Graham ruled on the motion by denying mandamus even after the motion had been pending for about 15 months.
  • Judge Graham allowed scores of other important motions to simply linger without addressing them.
  • Judge Graham abused the criminal contempt procedure by taking a void sua sponte issued pre-filing injunction and making it the basis of a criminal contempt information.
  • 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 has repeatedly improperly denied access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions. As a consequence, Judge Graham has necessarily arrogated his authority by denying appellate review of his lawless decisions.
  • Judge Graham falsely completed a Civil Justice Reform Act Report, “CJRA” in order to conceal the fact the fact that he had a motion for a preliminary injunction pending for more than 17 months.

ELEVENTH CIRCUIT, U.S. COURT OF APPEAL
The Eleventh Circuit has used every trick in the book to avoid scrutinizing the behavior of Judge Graham. It has been unwilling to test these allegations.
The Eleventh Circuit, U.S. Court of Appeal, has refused to test these allegations of misconduct for veracity, much less remedy them. This is really an incredible story of dishonesty. The methods employed by the Eleventh Circuit to circumvent legitimate appellate review are many and seem to be only limited by the Eleventh Circuit’s imagination. See mmason.freeshell.org/methods.htm.

Additionally, the Eleventh Circuit, primarily Chief Judge J.L. Edmondson, has mocked and contorted the Judicial Misconduct Act by refusing to investigate these allegations of misconduct against Judge Graham even though he knows full well that the appellate process has refused to address these allegations of misconduct. See Judicial Misconduct Home Page.