Judge Wilson Rules Appeal Of Award $200,000 Fees Frivolous

Judge Donald L. GrahamJudge Donald L. Graham

Point of this Post

The primary thrust of this post is to demonstrate that a single appellate judge, Circuit Judge Charles R. Wilson, or an entire panel for that matter, can deploy an unpublished opinion to reach the desired outcome by simply ignoring binding precedent in a published opinion. Judge Wilson also thumbed his nose  at binding Supreme Court precedent that states an in forma pauperis motion can only be denied if the allegation of poverty is true or the action is frivolous.  Judge Graham expressly found that the underlying lawsuit was not frivolous and had merit. Essentially, a single judge can overrule an appellate panel and the United States Supreme Court that he or she is bound to legally follow. Consider the following excerpt from a published opinion, Martinez, v. Kristi Kleaners, Inc. 364 F.3d 1305 (11 th Cir. 2004):

When considering a motion filed pursuant to § 1915(a), “[t]he only determination to be made by the court … is whether the statements in the affidavit satisfy the requirement of poverty.”3 Watson v. Ault, 525 F.2d 886, 891 (11th Cir.1976). An affidavit addressing the statutory language should be accepted by the court, absent a serious misrepresentation, and need not show that the litigant is “absolutely destitute” to qualify for indigent status under § 1915. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 338-40, 69 S.Ct. 85, 88-89, 93 L.Ed. 43 (1948). Such an affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependents.4 Id. at 339, 69 S.Ct. at 89. In other words, the statute is not to be construed such that potential litigants are forced to become public charges or abandon their claims because of the filing fee requirements. Id. at 339-40, 69 S.Ct. at 89. “[W]here the [IFP] affidavit is sufficient on its face to demonstrate economic eligibility, the court should first docket the case and then proceed to the question … of whether the asserted claim is frivolous.” Watson, 525 F.2d at 891. The district court must provide a sufficient explanation for its determination on IFP status to allow for meaningful appellate review. O’Neal v. United States, 411 F.2d 131, 138 (5th Cir.1969); Phipps v. King, 866 F.2d 824, 825 (6th Cir.1988); Besecker v. State of Ill., 14 F.3d 309, 310 (7th Cir.1994) (per curiam).

Compare the preceding to Circuit Judge Charles R. Wilson’s opinion below. Apparently, the Eleventh Circuit is of the opinion do as I say not as I do.

The United States Supreme Court On In Forma Pauperis

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

On June 20, 2001 when the lawsuit was dismissed, Judge Graham expressly found that the underlying lawsuit was not frivolous and had merit.However, there remain, as this Court recommended, various viable claims for trial.” See Report and Recommendation, (D.E #766, pg. 5), and Order Adopting R&R, (D.E. 791).

Judge Graham Never Reached the Merits of the Case

Marcellus M. Mason, Jr. of Sebring, Fl. filed an employment discrimination lawsuit against the Highlands County Board of County Commissioners and Heartland Library Cooperative and other governmental entities and individual government employees in February 1999. The case was originally assigned to then Chief Judge Edward Davis who retired. On February 20, 1999, Judge Davis allowed Mason to proceed in forma pauperis, “IFP”, or to proceed without paying the required filing fee for a lawsuit. Docket Entry No. 3. This case was ultimately assigned to Judge Donald L. Graham and Magistrate Frank Lynch Jr., Case No. 99-14027-CV-Graham/Lynch.

Judge Graham refused to rule on the merits of the case. The Case was closed on June 20, 2001. Docket Entry No. 791. A Notice of Appeal was filed on June 25, 2001. (Docket Entry 795). District Case No. 99-14027-CV-Graham was assigned Eleventh Circuit Case No. 01-13664, “merits appeal”.

The case was closed because of alleged violations of the following orders were granted on June 19, 2000 and July 25, 2000 in part stated:

“Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.”

(DE #201). This order is dated June 19, 2000,

“Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.” (DE #246). “Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.”

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

On June 20, 2001, when Judge Graham dismissed this case, both the Plaintiff and the Defendants had summary judgment motions pending that the district court failed to act on. (DE # 507); (DE # 667); (DE# 668); (DE # 706);(DE # 797);(DE # 769);(DE # 770);(DE #785). See Complete Docket Listing. However, Judge Graham expressly found that the underlying lawsuit was not frivolous and had merit.However, there remain, as this Court recommended, various viable claims for trial.” See Report and Recommendation, (D.E #766, pg. 5), and Order Adopting R&R, (D.E. 791). The Defendants submitted a motion for attorneys’ fees on July 23, 2001.

On September 20, 2001, Judge Graham rendered a pre-filing injunction, sua sponte, which neither party had asked for. See Docket Entry 878, pg.2.. (“THIS CAUSE came before the Court sua sponte“). Mason has never been given notice and opportunity to respond to this sua sponte issued pre-filing inunction, either before or after it was issued. It is well settled that sua sponte issued pre-filing injunctions or pre-filing injunctions entered without notice and opportunity to respond are violative of due process, and hence void. See Case Law. The injunction also makes a so-called “finding of bad faith”. The U.S. Supreme Court has stated that a finding of bad faith requires due process. “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 32, 50 (1991).
Judge Graham and his Magistrate had previously ruled that such an injunction was improper.
Highlands County specifically asked for the type injunction that Judge Graham concocted on September 20.2001. However, on February 13, 2001 and January 16, 2001, Judge Graham and Judge Graham’s
own Magistrate stated: “While there are other pending cases between these parties, there is nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look to for justifying injunctive relief.
See Case No. 0014240 (DE 27, pg. 3)(DE 33), URL: http://geocities.com/mcneilmason/secret/00-14240/de27.pdf,
http://geocities.com/mcneilmason/secret/00-14240/de33.pdf. In the period between February 13, 2001 and September 20, 2001, Mason did not file any lawsuit in the S.D. FL.

On January 25, 2002, Judge Graham awarded attorney’s fees of $200,000 against Marcellus Mason. See Docket Entry No. 891. Judge Graham adopted the Magistrate’s Report and Recommendation. “R&R”, in its entirety. On October 9, 2001, Mason filed his objections the R&R and aggressively attacked the R&R. See Docket No. 893. Judge Graham’s order make no mention of these objections. The R&R makes the following asserts the following:

  • The District Court dismissed the Plaintiffs claims, with prejudice, for the Plaintiff’ s
    repeated refusal to comply with the Court’s rules and orders . The District Court also
    entered an order on September 20, 2001…pg. 2.
  • Judge Graham’s order of September 20, 2001, also makes a specific finding of bad faith. Judge Graham stated, “It has become clear to the Court that Mason is proceeding in bad faith. pg. 3.
  • As stated previously by the District Court and by this Court herein, Judge
    Graham has already made a finding of bad faith. This takes the case beyond the analysis
    of frivolity. pg. 4.
  • [I]t 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. pg. 7.
  • Mason filed a notice of appeal promptly on February 7, 2002. See Docket Entry No. 896.


    Eleventh Cir. Case No. 02-10868-A, Dist. Ct. Case No. 99-14027-CV-Graham

    On August 23, 2002, Circuit Judge Charles R. Wilson opined:

    Appellant’s Motion for leave to proceed on appeal in forma pauperis is DENIED because the appeal is frivolous. See Pace v. Evans, 709 F.2d 1428 (11th Cir. 1983).

    See Order. A motion for a rehearing was filed seeking to know the factual basis for the ‘frivolous conclusion, the court, Judge Charles Wilson and Stanley Marcus, stated:

    Appellant has filed a “Motion for Clarif[i]cation,” which is construed as a motion for reconsideration of this Court’s order dated August 23, 2002. Upon reconsideration, appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED because the appeal is frivolous. See Pace v. Evans, 709 F.2d 1428 (1 IA Cir. 1983). Appellant’s “Motion for Judge Wilson to Recuse” is DENIED.

    See Order Denying Reconsideration. It is unclear on what basis the Court made the “frivolous” determination because the “merits appeal” was still pending and the decision was not rendered until October 16, 2002. Consequently, the Eleventh Circuit ruled it was frivolous to file an appeal of the $200,000 attorneys’ fees award before knew anything about the quality of the underlying claims since the “merits appeal was still pending.

    Judge Wilson’s unsupported mere conclusory opinion is contradictory of Judge Graham’s opinion. On June 20, 2001 when the lawsuit was dismissed, Judge Graham expressly found that the underlying lawsuit was not frivolous and had merit.However, there remain, as this Court recommended, various viable claims for trial.” See Report and Recommendation, (D.E #766, pg. 5), and Order Adopting R&R, (D.E. 791).


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One Response to “Judge Wilson Rules Appeal Of Award $200,000 Fees Frivolous”

  1. Peter De bruyn Says:

    I need some quick advise. I filed a motion to reconsider a denial of an appeal from the Board of Immigration Appeal by overnight mail, on 11/03/2009. For some reason it was not received and filed by the Board until 11/05/2009. Since the VLD was 11/04/2009, the Board ruled the motion was filed out of time. (Matter of Liadov, 23 I&N Dec. 990 (BIA 2006 and Liadov v. Mukasey, 518 F.3d 1003 (8th Cir. 2008). The only thing I can do to protect the client is to file a Petition for Review by 2/10/2009 in the 11th Cir. Court of Appeals. I am admitted to the 9th Cir. and California. I am thinking of filing a Petition in pro se on behalf of the client, which they have agreed to. The clients do not expect to win. They are trying to buy time. Is this a bad idea.

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