Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life

Justice Turned On Its Head

Judge Donald L. Graham, “Teflon Don”

Point of This Post

This post limits itself to the narrow issue that a pre-filing injunction issued sua sponte or without notice and opportunity to respond violates the due process clause of the constitution. U.S. Dist. Judge Donald L. Graham, “Teflon Don” issued a pre-filing injunction, sua sponte on September 20, 2001. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. This sua sponte issued pre-filing injunction is fraught with legal problems, however these problems will not be the subject of this post. Essentially this post demonstrates that the Eleventh Circuit and Judge Graham can subvert well settled decisions of the United States Supreme Court and conceal this fact in unpublished opinions. This post will demonstrate that the Eleventh Circuit, U.S. Court of Appeal has declined to review the sua sponte issued pre-filing injunction of September 20, 2001 in the following different case numbers: 01-13664-A, Direct Appeal, Case No, 01-15754, Mandamus, Case No. 01-16218, Case No. 02-11476-A, Case No. 02-14646, Mandamus, Case No. 04-11894, Mandamus, Case No. 05-10623-I, Mandamus. This post sets forth the following:

• A pre-filing Injunction issued in violation of due process is void.
• The US Attorney sought and got a criminal contempt conviction based upon a void order,the sua sponte issued pre-filing injunction of September 20, 2001. AUSA, Robert Waters, used the power of the U.S. Government when he knew or should have known that neither the law or the facts supported his efforts. The U.S. Attorney has declined to offer legal argument that a pre-filing injunction issued sua sponte is not void and worthy of respect. See Docket Entry No. 36;See Document No. 107. On the date, December 3, 2002, when the criminal information was filed, the Eleventh had already refused to review the patently illegal sua sponte issued pre-filing injunction no less than five times. See Eleventh Circuit Case Nos. 01-13664-A, 01-15754, 01-16218, 02-11476-A, and 02-14646 below.
• Judge K. Michael Moore, who tried and convicted Mason of criminal contempt has not offered any legal authority that an injunction issued in violation of due process in not void. Docket Entry No. 44;Docket Entry No. 118, R&R;Order Adopting R&R, Docket No. 124.
• The Eleventh Circuit has refused to review this sua sponte issued pre-filing injunction for validity on multiple occasions. As a matter of fact, in the direct appeal, Case No. 01-13664-A, the Eleventh Circuit struck Mason’s appellate brief for arguing against the sua sponte issued pre-filing injunction, but when the Eleventh circuit rendered its unpublished opinion it then used the very same sua sponte issued pre-filing injunction to affirm Judge Graham. For the full story, see post this site, “Putrid Dishonesty:Beyond the Scope of Appeal“.
• The Eleventh Circuit has affirmatively acted as an advocate for Judge Graham in that it has not required or allowed anyone to argue for the validity of the sua sponte issued pre-filing injunction. Additionally, the Highlands County Board of County Commissioners, the Defendant in the civil lawsuits has not filed any brief stating why a sua sponte issued pre-filing injunction is not void.
• Chief Judge J.L. Edmondson, Circuit Judge, does not consider knowingly convicting a man of crime that does not exist or a concocted crime, is not misconduct under the Judicial Misconduct and Disability Act. See Complaint No. 05-0011.

A Word on the Title of This Post

The title of this post, “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life“, is not quite accurate for a few reasons. Firstly, with respect to the phrase “sits idly by”;this phrase implies a certain passivity. The Eleventh Circuit took affirmative and aggressive acts in this matter. Secondly, Robert Waters, “AUSA”, Assistant United States Attorney, proceeded with a criminal contempt conviction based upon an order that he knew or should have known was void and without legal effect.

Hobson Choice

The Eleventh Circuit presented Marcellus Mason with a Hobson choice. Comply with a patently illegal sua sponte issued pre-filing injunction of September 20, 2001or else. There aint going to be no go$$% appellate review. On the date, December 3, 2002, when the criminal information was filed, the Eleventh had already refused to review the patently illegal sua sponte issued pre-filing injunction no less than five times. See Eleventh Circuit Case Nos. 01-13664-A, 01-15754, 01-16218, 02-11476-A, and 02-14646 below.

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.

Eleventh Circuit Refuses to Review Injunction

The sua sponte issued pre-filing injunction of September 20, 2001, like Indiana Jones in the Temple of Doom, has escaped a virtual labyrinth of appellate review attempts. The Eleventh Circuit has had multiple opportunities to rule on the validity of the pre-fling both before and after the initiation of the criminal contempt complaint. The reasons for refusing to review the sua sponte issued pre-filing injunction have been dishonest and even inconsistent.

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.“).

Orders Issued Inconsistent With Due Process Are Void

A judgment is void if the rendering court acted in a manner inconsistent with due process of law. Wright & Miller, Federal Practice and Procedure § 2862. “A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.” World-Wide Volkswagen Corp. V. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821). “’No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.” Old Wayne Mut. Life Ass’n v. McDonough, 204 U.S. 8, 15 (1907). Generally, a judgment is void under Rule 60 (b) (4) if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if acted in a manner inconsistent with due process of law. E.g., s Burke v. Smith, 252 F.3d 1260 (11^th Cir. 2001); U.S. v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 1990);Beller & Keller v. Tyler, 120 F.3d 21, 23 (2nd Cir. 1997); Union Switch & Signal v. Local 610, 900 F.2d 608, 612 n.1 (3rd Cir. 1990); Eberhardt v. Integrated Design & Const., Inc. 167 F.3d 861, 867 (4th Cir. 1999); New York Life Ins. Co. v. Brown 84 F.3d 137, 143 (5th Cir. 1996)

Effect of Void Order

“A void judgment is from its inception a legal nullity.” Boch Oldsmobile, at 909 F.2d 657, 661 (1st Cir. 1990). Lops v. Lops, 140 F.3d 927, 941 n. 19(11th Cir. 1998) (“something that is null has no legal or binding force.”); Carter v. Fenner, at 136 F.3d 1000 (5th Cir. 1998)(“[a] void judgement is one which, from its inception, was a complete nullity and without legal effect.”). Anderson v. Dunn, 19 U.S. 204, 217 (1821)(“the constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.”);

“The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.” Windsor v. McVeigh, 93 U.S. 274;23 L.Ed. 914 (1876).

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Case No. 01-13664-A, Direct Appeal

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

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

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

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

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

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Case No, 01-15754, Mandamus

The Judges responsible for making this decision are Judges Susan H. Black, Rosemary Barkett, and Stanley Marcus. The Eleventh Circuit received a mandamus petition that was docketed as being received on October 2, 2001. See Receipt. This is a 25 page petition plus exhibits. Microsoft Word Format, html format, and pdf format. This petition attacks the sua sponte issued pre-filing injunction of September 20, 2001. The Eleventh Circuit Court had jurisdiction to entertain an appeal pursuant to 28 U.S.C. § 1292 from the moment the injunction of September 20, 2001 was issued even if the case was not closed like the matter at bar. According to the Supreme Court and the Eleventh Circuit’s own binding precedents, this mandamus petition should have been treated as a notice of appeal. The Defendant, Highlands County Board of County Commissioners, and U.S. Dist. Judge Donald L. Graham also received a copy of the mandamus petition. Judge Graham did not file a brief in opposition to the petition. The Defendant did not file a responsive brief to the petition. The Eleventh Circuit did not require anyone to respond the petition.

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

In reply to the 25 page petition on December 5, 2001, the Eleventh Circuit rendered the following “Opinion”:

“The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See “Opinion“, Case No. 01-15754.

Mason filed a motion for clarification seeking to know the basis upon which the decision was made or what the opinion stood for, however the Eleventh Circuit declined to discuss the matter.

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Rehearing Denied

On January 25, 2002, the Eleventh Circuit denied a motion for clarification:

Petitioner’s “motion for reconsideration and clarification” of this Court’s December 5, 2001, Order, is DENIED as Petitioner has offered no reason sufficient to warrant either reconsideration or clarification of this Court’s Order.

Rehearing Denied

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

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Case No. 01-16218

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

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

See Opinion Case No. 01-16218.

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Case No. 02-11476-A

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

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

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

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Case No. 02-14646, Mandamus

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

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

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Case No. 04-11894, Mandamus

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

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

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

At page 3, the Court asserts:

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

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

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Case No. 05-10623-I, Mandamus

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

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

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

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

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

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

Void Order Forms the Basis of Criminal Contempt Complaint and Conviction

AUSA Robert Waters, with the full consent of his boss, US Attorney Marcos Daniel Jimenez, who signed the information, went ahead with a criminal contempt conviction and prosecution that they knew or should have known was based upon a clearly void order.

Beginning on or about September 20, 2001, and continuing to on or about November 1, 2002, in Highlands County, Dade county, and elsewhere, in the Southern District of Florida, the defendant, MARCELLUS M. MASON, Jr., did willfully and knowingly disobey and resist a lawful order of a Court of the United States, that is, the order issued by the Honorable Donald L. Graham, United States District Judge, on September 20, 2001, in the Southern District of Florida, in the case of Marcellus M . Mason v. Highlands County Board of County Commissioners, et al., Case Numbers:…by repeatedly filing pleadings, motions, memoranda, and directly contacting other litigants in the above cited cases, after specifically being enjoined from and ordered not to file any such pleadings or contact other litigants by Court Order dated September 20, 2001, in violation of Title 18, United States Code, Section 401(3).

See Case No. 02-14020, Docket No. 6. 18 U.S.C. § 401(3) states: (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. 18 U.S.C. § 401(3) expressly calls for a “valid order”, which does not and cannot include a void order. Mason moved to dismiss the information because the order it relied upon was void.

A motion to dismiss the information this information was filed on November 27, 2002. See Document No. 4. This petition, among other things, including excoriating Judge Graham, argues that a pre-filing injunction issued in violation of due process is void and hence, can not form the basis of a criminal contempt complaint.

This matter was placed in suspense on July 30, 2003. Docket Entry No. 9. On March 8, 2004, Mason files a Second Motion to Dismiss. Docket Entry No. 35. On March 4, 2004, Mason filed a motion with the court asking for a ruling on his motion to dismiss that was submitted on November 27, 2002. See Docket Entry No. 31. On 03/11/2004, the Government finally decides to respond to the Motions to Dismiss. See Docket Entry No. 36. This response does not answer the central question of why an injunction issued in violation of due process is not void. As a matter of necessity, the Government’s position is that Judge Graham is free to violate the clearly established edicts of the United States Supreme Court.

On March 15, 2004, Judge K. Michael More states:

Mason’s motions for due process hearing and publication are meritless. The due process claim concerns Judge Graham’s September 20, 2001 Omnibus Order enjoining Mason from filing pleadings or new lawsuits without first obtaining court permission. The proper venue for contesting the constitutionality of that order is the United States Court of Appeals, not this Court. Indeed, the Eleventh Circuit dismissed Mason’s appeal of the September 20, 2001 Omnibus Order. (Case no. 99-14027-CIV, DE #922.) Moreover, Mason’s demand that this “matter” be published is without authority.

See Docket Entry No. 44.

Post Judgment Rule 60(b)(4)

On July 17, 2007, a Motion To Vacate Conviction is submitted to the Court. This motion attacks the sua sponte issued pre-filing injunction pursuant Rule 60(b)(4). This is a 23 page, small type, motion that is loaded with on point case authority. The theory being if the sua sponte issued pre-filing injunction is void, then the contempt complaint and conviction must fail because there is no longer a valid order upon which to base a criminal contempt complaint. Highlands County Board of County Commissioners, the beneficiary of the court’s largess and the pre-filing injunction chose not to oppose the motion. On August 2, 2007, the Government responds with a 5 page document that does not directly address Mason’s and SCOTUS’ assertion that an order issued in violation of due process is void. See Document No. 107. What is significant about the government’s response is that it does not cite a single legal authority for its opposition, nor does it directly take on Mason’s arguments. AUSA, Robert Waters chooses to defend his ill gotten gains with the following theory:

Defendant Mason cites Fed.R.Civ.P. 60 (b) (4) as legal authority for the relief he seeks. This is an invalid assumption. The defendant was convicted of criminal contempt; which is obviously a case that is criminal-in-nature, and governed by the Federal Rules of Criminal Procedure. There is no civil aspect to the Defendant’s conviction. The judgment clearly states he was convicted in a criminal case. Fed.R.Civ.P. 1 states that the Rules, including Rule 60(b), apply only to cases that are civil in nature. Thus, the Defendant’s legal basis for his requested relief is incorrect and his motion must be denied.

On October 16, 2007, four months after motion was filed, Magistrate John O’Sullivan, renders a Report and Recommendation, “R&R”. See Docket Entry No. 118. This R&R was quickly adopted by the district judge on October 31, 2007. Docket No. 124. Mason was arrested for a parole violation on or about October 15, 2007 and stayed in the Federal Detention Center in Miami, FL, without bond on an underlying misdemeanor, criminal contempt, until approximately November 29, 2007 (41 days). Additionally, Mason was not properly served because the R&R was returned to sender because the wrong address was entered. See Docket Entry on December 6, 2007. Upon release from jail, Mason files three motions with the court;Defendant’s Notice of Non Service and MOTION for Leave to File Objection to REPORT AND RECOMMENDATIONS, (D.E. #132); OBJECTION TO REPORT AND RECOMMENDATIONS, (D.E. #133);MOTION to Modify MOTION to Vacate conviction and Withdraw a Remedy, (D.E. #134). Having said this, the Magistrate’s R&R does not address the legal points raised by Mason instead Judge O’Sullivan adopts the tact that a void order can be made valid or bootstrapped by a later filed criminal contempt complaint. Frankly, much of the R&R is dishonest and untruthful. This R&R is really an interesting read in garbage and junk legal theory. Since the Magistrate attempts to bootstrap the sua sponte issued pre-filing injunction with the collateral bar rule, Mason obliges the Magistrate by filing a motion to modify and removes the request to vacate the conviction leaving only the issue of whether or not a sua sponte issued pre-filing is void. See MOTION to Modify MOTION, (D.E. #134). Consequently, the sua sponte issued pre-filing injunction is left standing on its own merits. Judge K. Michael Moore, a United States District Judge, certainly has the jurisdiction to render a civil judgment and particularly on a matter brought to him. On January 4, 2008, Judge Moore had to issue an order to the Government requiring a response. See Docket No. 135.

On January 7, 2008, the Government as represented by Theodore M. Cooperstein, files a two page response, OPPOSITION TO TO VACATE (DE 134), and essentially washes his hands of the matter. Specifically, Mr. Cooperstein, states:

The underlying civil action has also been dismissed and judgment entered, and

affirmed by the Court of Appeals in April, 2003. Case No. 99-14027 (DE 929).

There accordingly remains no jurisdiction in this Court to hear the claims under that

civil action. The remaining two civil claims asserted by the Defendant in his Motion require an

independent basis for jurisdiction in a separate civil action. See, e.g., 28 U.S.C. §

1331; 2201; Fed. R. Civ. P. 57. The Government makes no representation as to

whether any such claims, if properly filed, would in any event still have any

timeliness or validity.

See Document No. 137.

On March 16, 2008, Judge Moore renders an order apparently denying the Motion To Vacate and other pending motions:

THIS MATTER is before the Court on the Defendants Notice of Non Service and Motion

for Leave to File objections to Report and Recommendation, filed December 21, 2008 [132] and Defendant’s Motion to Modify Motion to Vacate Conviction and Withdraw a Remedy, filed December 26, 2008 [134]. The Court having considered the record, having reviewed the above motions, the government’s re ponse thereto, and arguments at hearing on March 3, 2008, and being fully advised in the premises, it is ORDERED AND ADJUDGED that the said motions are hereby DENIED, it is further ORDERED AND ADJUDGED that Defense counsel’s are tenus Motion to Terminate Supervised is hereby GRANTED. Defendant’s term of supervised release is hereby terminated this date.

Current Status

A Notice of Appeal was promptly filed on March 13, 2008. See Document No. 142. A motion to proceed in forma pauperis was filed on March 13, 2008. See Document No. 143. The motion to proceed in forma pauperis was referred to a Magistrate where it is still under consideration. On April 23, 2008, Mason submits a “MOTION for Rule 60 (b)(5), MOTION for Order to Show Cause“. See Document No. 144. This motion seeks two things: (1)to force Highlands County Board of County Commissioners, civil defendant, and beneficiary of the system’s largess, to file a brief with the court stating why a sua sponte issued pre-filing injunction is not void and should not be vacated;(2)to vacate the sua sponte issued pre-filing injunction prospectively under Fed.R.Civ.P. 60(b)(5). To date Highlands County has not responded and according to Local Rules the motion should be granted as Highlands County has had more than the required 10 days plus mailing to respond but has not done so.

Judicial Misconduct

Chief Judge J.L. Edmondson, Circuit Judge, does not consider knowingly convicting a man of crime that does not exist or a concocted crime, is not misconduct under the Judicial Misconduct and Disability Act. Stated alternatively, Judge Edmondson does not consider framing an innocent to be covered under the Act. This post will not characterize Judge Edmondson’s words, this author deplores the reader to read them and make your own judgment. See Complaint of Judicial Misconduct, Case No. 05-0011.

Quick Facts Background

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

On June 20, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

[I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” See Docket Entry No. 201

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

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

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

The following alleged out of court lawful communications were used to dismiss the lawsuit.

• “They claimed that, during the week of 5 February 2001, Mason had demanded to view his personnel file from Highlands County’s Human Resource Director Fred Carino, a named defendant in the case.” See Opinion, pg. 4.
• They stated that, on 13 and 14 February 2001, Mason also appeared at Carino’s office and demanded to view the billing records for Highlands County’s attorney and Highlands County’s liability insurance documents. See Opinion, pgs. 4-5.
• They attached a copy of an e-mail apparently sent by Mason in which he explained that he would file a criminal complaint against Carino if he was denied any requested documents and expressed his belief that the county had “waived” its rights under the Orders as a result of Carino’s conversations with Mason and letter. See Opinion, pg. 5.
• On 6 April 2001, Heartland again moved for sanctions in the form of dismissal because Mason had “repeatedly personally contacted [by e-mail] supervisory employees and/or individual Defendants” in the case since the magistrate judge’s 27 March order. See Opinion, pg. 6.

United States Supreme Court On Notices of Appeal

“A document intended to serve as an appellate brief may qualify as the notice of appeal required by Rule 3. So long as such a document is filed within the time allowed by Rule 4 for a notice of appeal and satisfies Rule 3(c)’s requirements as to the content of such a notice, it may be treated as the “functional equivalent” of the formal notice demanded by Rule 3.” SMITH v. BARRY ET AL. 502 U.S. 244 (1992) (Syllabus). See also Eleventh Circuit’s Finch v. Vernon, 845 F. 2d 256, 259-260 (11th Cir. 1988) (citing United States v. Rogers, 788 F.2d 1472, 1475 (11th Cir.1986) (notice of appeal requirement is satisfied by any statement clearly evincing the party’s intent to appeal); Yates v. Mobile County Personnel Board, 658 F.2d 298, 299 (5th Cir. Unit B Oct. 1981) (“A petition for mandamus filed in this court, however, may also satisfy the notice of appeal requirement, especially when the appellant is proceeding pro se … and is thus generally ignorant of procedural rules.”).”).

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 (11^th 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 (1^st 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 (2^nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2^nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2^nd 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, ** (3^rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3^rd 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 (4^th 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 (9^th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10^th 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(4^th 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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Pre-filing Restrictions

1. Plaintiff Marcellus M. Mason is Permanently enjoined

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

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

See Docket Entry No. 878.