Posts Tagged ‘99-14027’

Eleventh Circuit, U.S. Court of Appeal, Masters of Jugglery: Jurisdictional Challenge Converted To Summary Reversal Motion To Achieve Desired Outcome

June 28, 2008

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”
He’s a bad motherf^%##, Shut your mouth!

Point of This Post

This post will document how the Eleventh Circuit, U.S. Court of Appeal, used jugglery to avoid an outcome that the facts and the law would have required. Jugglery is defined as manipulation or trickery especially to achieve a desired end. This matter concerns an appeal in the Eleventh Circuit, Case No. 01-13664 and District Court Case No. 99-14027-CIV-DLG, Judge Donald L. Graham, presiding. In this matter, the Eleventh Circuit converted a motion to determine jurisdiction that it must satisfy to a summary reversal motion that is discretionary. Having recharacterized the motion, the Eleventh Circuit, without citing any facts, simply said the summary reversal was not warranted. Simply put, the Eleventh Circuit refused to state why it had jurisdiction. 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.

Premise

Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree, It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Insurance Company Of America, 511 U.S. 375 (1994). “The courts, no less than the political branches of the government, must respect the limits of their authority.” Catholic Conf. v. Abortion Rights Mobilization, 487 U.S. 72 (1988)..

ISSUE: Whether the Eleventh Circuit Had Jurisdiction of the Appeal?

The Appellant submitted a Motion To Determine Jurisdiction. The Eleventh Circuit and the U.S. Supreme Court has stated in case after case that a jurisdictional challenge maybe raised at any time. Moreover, both courts have stated that all courts are under an independent obligation to review its jurisdiction even if no party raises the issue. In this matter, rather than discuss why or why it did not have jurisdiction of the appeal the Eleventh Circuit converted the Motion To Determine Jurisdiction in to a motion for summary reversal. Having converted the motion into a summary reversal, a discretionary form of relief, the Eleventh Circuit, in a mere conclusory fashion simply asserted that the standards for a summary reversal were not met. Rather than construing the Motion To Determine Jurisdiction, a pro se motion, liberally to achieve substantial justice, the Eleventh Circuit construed the motion to achieve its own end.

Eleventh Circuit’s Response to Jurisdictional Challenge

On April 15, 2002, the Eleventh Circuit stated: “Appellant’s “motion to determine jurisdiction,” and “motion to determine subject matter jurisdiction and standing,” which are construed as motions for summary reversal, and are DENIED.” See Order Denying Jurisdiction.

On May 17, 2002, the Eleventh Circuit stated:

“Appellant’s motion for clarification is GRANTED, and this Court’s April 15, 2002, Order clarified as follows: Appellant’s motions, which were construed as motions for summary reversal, were denied because Appellant failed to meet the standards for summary disposition. See Groendyke Transport v. Davis, 406 F.2d 1158, 1162 (5th Cir.) cert. denied, 394 U.S. 1012, 89 S.Ct. 1628, 23 L.Ed.2d 39 (1969).”

See Order Granting Clarification.

Citing the Law and omitting the facts, an all too familiar tactic of the Eleventh Circuit, is that decisions are made with recitation to a court case with no recitation to the facts of the instant case

What Do You Know From Reading The Order?

This post was designed with the decision first for the purpose of accentuating the lack of information in decision not to discuss jurisdiction. Reading only the decision above, answer the following questions:

  • Why does the Eleventh Circuit have jurisdiction?
  • What is the law regarding jurisdiction on appeal?
  • What are the facts that support the decision?
  • Why did the Eleventh Circuit construe the motion to determine jurisdiction as a motion for summary reversal?
  • Who benefited by construing the motion as a motion for summary reversal?

Law On Jurisdiction

[T]he Supreme Court has ruled that “it is not proper for federal courts to proceed immediately to a merits question despite jurisdictional objections.” In re Madison Guaranty Savings & Loan Association, 173 F.3d 866; 335 U.S. App. D.C. 327 (C.A.D.C. 1999)(citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (without proper jurisdiction, a court cannot proceed at all, but can only note the jurisdictional defect and dismiss the suit)”). “On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.Steel Co., 523 U.S. at 94. See also UNITED STATES of America v. Mery GIRALDO-PRADO, 150 F.3d 1328 (11th Cir. 1998) (“We have noted that a party may raise jurisdiction at any time during the pendency of the proceedings.”);

In a case involving Judge Graham, United States Of America v. Machado, No. 05-11420, D. C. Docket No. 97-00238-CR-DLG, 465 F.3d 1301pgs. 8,9 (11th Cir. 2006);2006 US App (11th) 398, the Eleventh Circuit held:

We are aware, of course, that “subject-matter jurisdiction . . . can never be forfeited or waived” and “[c]onsequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court,” United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 1785 (2002); see also Arbaugh v. Y& H Corp., ___ U.S. ___, ___, 126 S. Ct. 1235, 1240 (2006) (“The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”). That principle is not, however, an exception to the requirements for appellate jurisdiction, and if those requirements are not met we cannot review whether a judgment is defective, not even where the asserted defect is that the district court lacked jurisdiction.

The Eleventh Circuit had a duty to not only review its own jurisdiction, but that of the lower court as well. Even if the neither the parties raise the issue of subject matter jurisdiction the Eleventh Circuit is required to do so on its motion or sua sponte. See ALFRED L. BOCHESE v. TOWN OF PONCE INLET, No. 04-11542, 405 F.3d 964 (11th Cir. 2005)(“Although the parties have not raised the issue here, we are obliged to consider, sua sponte, the question of our subject matter jurisdiction to hear the case before us.“), http://www.ca11.uscourts.gov/opinions/ops/200411542.pdf.

Federal courts are “obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking. “As a threshold matter, therefore, we must initially determine both whether the district court had subject matter jurisdiction to consider Williams’ Rule 60(b) motion and whether this Court has jurisdiction to review the district court’s denial of his motion.” WAYNE BERTRAM WILLIAMS v. BRUCE CHATMAN, No. 06-16115 (11th Cir. 2007),,(citing Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004)). “An appellate court has a duty to consider sua sponte whether appellate jurisdiction is properly invoked.” John Andrew Mattingly v. Farmers State Bank, No.98-3234 (6th Cir. 1998), ELECTRONIC CITATION: 1998 FED App. 0262P (6th Cir.) File Name: 98a0262p.06 (citing Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976)).

“When a colorable question exists, an appellate court has an unflagging obligation to inquire sua sponte into its own jurisdiction.” Charlesbank Equity Fund Ii v. Blinds To Go, Inc., 370 F.3d 151 (1st Cir. 2004).

Construed or Screwed

“Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category. They may do so in order to avoid an unnecessary dismissal, to avoid inappropriately stringent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion’s claim and its underlying legal basis. ” Castro v. United States (02-6683) 540 U.S. 375 (2003). “Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” United States Of America v. Pierre Castma , No. 07-13531 (11th Cir. 2005)(quoting Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), cert. denied, 127 S. Ct. 1908 (2007)).See also United States Of America v. Gary William Holt, No. 04-15848, 417 F.3d 1172 (11th Cir. 2005)(“noting that a pro se motion should be liberally construed to afford review on any “legally justifiable base”)(citing Sanders v. United States, 113 F.3d 184, 187 (11th Cir.1997) (per curiam) (noting that a pro se motion should be liberally construed to afford review on any “legally justifiable base”)).

The clear intent of liberal construction is for the benefit of the pro se litigant and not to the detriment of the pro se litigant. In this matter, the Eleventh Circuit construed a Motion to Determine Jurisdiction to motion for summary reversal. This “construction” or recharacterization was to the detriment of Mason. The Eleventh Circuit took a mandatory motion which required it to assert facts and law to support both its jurisdiction and that of the lower court and converted it to a “summary reversal” motion. Had the Eleventh been unable to sufficiently support its jurisdiction and that of the lower court would have required a dismissal of the appeal. The Eleventh Circuit ran ahead to the finish line and saw who was going to win the race, consequently they changed the rules to guarantee the winner or outcome of the race. The Eleventh then construed the motion to determine jurisdiction into a motion for summary reversal which is a discretionary. Once the motion became discretionary, the Eleventh Circuit was free to avoid the outcome the facts would have demanded. It is difficult not to conclude that the rules were construed to achieve the desired outcome-vindication of Judge Graham.

Internal Operating Procedure

The Eleventh Circuit’s internal rules allows them to raise a jurisdictional issue at their discretion. 11th Cir. R. 31-1(e) (1999)states:

(e) Jurisdictional Question. If, upon review of the district court docket entries, order and/or judgment appealed from, and the notice of appeal, it appears that this court may lack jurisdiction over the appeal, the court may request counsel and pro se parties to advise the court in writing of their position with respect to the jurisdictional question(s) raised. The issuance of a jurisdictional question does not stay the time for filing briefs otherwise provided by this rule.

Motion To Determine Jurisdiction

Appellant’s Motion To Determine Jurisdiction was submitted on or about March 13, 2002. See Docket and Motion. This motion argued that the Eleventh Circuit did not have jurisdiction of the appeal because the alleged violations of preliminary injunctions, or orders that were granted on June 19, 2000, (DE #201), and July 25, 2000, (DE #246) were not lawful for the following reasons:

  • Magistrate is without legal authority to issue an injunction or a restraining order. See Motion, pps. 3,5-6.
  • These orders are invalid because the Defendants failed to file a complaint for an injunction or a restraining order.
  • These orders failed to meet the requirements for a “temporary Injunction” or “TRO”. See Motion, pg. 6,7.

Case Cited By Eleventh Circuit Supports Appellant

The Eleventh Circuit cited Groendyke Transport v. Davis, 406 F.2d 1158, 1162 (5th Cir.) cert. denied, 394 U.S. 1012, 89 S.Ct. 1628, 23 L.Ed.2d 39 (1969) for the proposition that a “summary reversal” was not warranted. However, Groendyke Transport actually supports Mason’s or the Appellant position. Firstly, Groendyke Transport, like the instant case involved the question of the validity of an injunction. Groendyke Transport, set forth two conditions that would warrant a summary disposal:

  • “The first comprises those cases where time is truly of the essence. This includes situations where important public policy issues are involved or those where rights delayed are rights denied.”
  • Second, are those in which the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case…

The where rights delayed are rights denied position favors Mason. The injunctions issued in the instant case concerned First Amendment rights. These injunctions prohibited direct communications with the government. Secondly, one of the injunctions, (D.E. #246)(“”Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.), implicated Florida Public Record requests. It is well settled and unremarkable that the “the loss of constitutional rights for even a minimal amount of time constitutes irreparable harm.” See Taubman Company v. Webfeats, 319 F.3d 770 (6th Cir. 2002). More importantly, according to the Supreme Court: “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); same 11th Cir., Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983)(“It is well settled that the loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury justifying the grant of a preliminary injunction.“); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417 (11th Cir. 1984)(“first amendment rights violated sufficient to show irreparable injury because loss of first amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury“) .

The one of the parties is clearly right as a matter of law condition favors Mason the appellant. The best argument in support of the appellant is lack of legal citation or facts by the Eleventh Circuit. More importantly, the law favored Mason because a Magistrate can not issue an injunction. Assuming arguendo, a Magistrate could issue an injunction, Mason would have prevailed because order fails to meet the 4 prong requirements for a preliminary injunction.

BACKGROUND

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. This case was ultimately assigned to Judge Donald L. Graham and Magistrate Frank Lynch Jr., Case No. 99-14027-CV-Graham/Lynch. After protracted litigation, the case was dismissed, not on the merits of the case, but based upon banned and irrelevant out of court constitutionally protected and legal communications between Highlands County and Mason. “R&R” (D.E. 766), Order adopting R&R (D.E 791). See Banned Communications. In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue asked the Magistrate to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants. 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 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.” (). This order is dated July 25, 2000.

Judge Graham has expressly stated that the issuance of the injunctions by Magistrate Judge Frank Lynch, Jr. was not “clearly erroneous nor is it contrary to law. See Docket Entry No. 407. However, Congress and the law disagree as the law expressly states that: “Notwithstanding any provision of law to the contrary— a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief…,” 28 U.S.C. § 636(b)(1)(A).

On March 2, 2001, Highlands County Board of County Commissioners attorneys, Allen, Norton & Blue, filed a “DEFENDANTS’ MOTION FOR SANCTIONS IN THE FORM OF DISMISSAL OF PLAINTIFF’S ACTION AND SUPPORTING MEMORANDUM OF LAW“. See Docket Entry No. 511. This motion sought dismissal of the lawsuit due to alleged out of court communications with the Highlands County Government in violation the injunctions mentioned above,DE #201) and (DE #246). On April 9, 2001, the Defendants’ filed a second motion for sanctions in the form of dismissal of Plaintiff’s lawsuit for more alleged out of court communications between Mason and the Highlands County Government. See Docket Entry No. 646. On May 31, 2001, the Magistrate, Frank Lynch, Jr., prepared a Report and Recommendation, “R&R”, recommending that the lawsuit be dismissed because of these out of court communications between Mason and his local government, Highlands County Board of County Commissioners. Judge Graham accepted this R&R in whole with no changes or comments.

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. Consequently, the court never reached the merits of the lawsuit as there were motions for summary judgments pending when the case was closed. See Docket Sheet, Defendant’s motion for summary judgment, (Doc. 769);(Doc. 770), and the Plaintiff’s motion for summary judgment as well, (Doc. 507); (Doc. 667); (Doc. 668); (Doc. 706); (Doc. 797).

Refusal To Cite Legal Authority

Judge Graham and his Magistrate, Frank Lynch, Jr. have repeatedly refused to cite legal authority for these orders, (DE #201) and (DE #246), which required Mason to seek the approval of private attorneys, Allen, Norton & Blue, prior to petitioning the government. See Court Orders: (DE #201), (DE #246);(Doc. #279);(Doc. 281);(Doc. #407);(Doc. #524);(Doc. #528);(Doc. #634);(Doc. 673);(Doc. 744);(Doc. 745);(Doc. 766);(Doc. 791);(Doc. 874, pg. 2);(Doc. 882, pgs. 1-2); (DE-890); (DE-928);(DE-931)).

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

May 31, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Preface

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

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

The Act That Defies the U.S. Supreme Court

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. APPELLATE HISTORY. This injunction is commonly referred to under several different names: “leave to file injunction”, “vexatious litigant injunction”, “pre-filing injunction”, “filing injunction”, “1651 injunction”. This same injunction that was issued without notice and opportunity to respond also makes a “finding of bad faith”. At pages 5 and 6, Judge Graham specifically states:

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

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

Definition of Willful

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

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Premise of This Post

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

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

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

“A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821). “’No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.” Old Wayne Mut. Life Ass’n v. McDonough, 204 U.S. 8, 15 (1907). “A void judgment is from its inception a legal nullity.” Boch Oldsmobile, at 909 F.2d 657, 661 (1st Cir. 1990). Lops v. Lops, 140 F.3d 927, 941 n. 19 (11th Cir. 1998) (“something that is null has no legal or binding force.”); Carter v. Fenner, at 136 F.3d 1000 (5th Cir. 1998)(“[a] void judgement is one which, from its inception, was a complete nullity and without legal effect.”). “Courts are constituted by authority, and they cannot go beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal.” Valley v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 354 (1920).

Right of Access To Courts is Constitutionally Protected

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

Proof No. 1

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

Proof No. 2

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

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

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

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

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

Proof No. 3

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

Proof No. 4

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

Proof No. 5

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

Proof No. 6

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

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

Proof No. 7

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

Enabling Acts of the Eleventh Circuit

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

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

Case Law On Pre-Filing Injunctions

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

A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. U.S. v. Powerstein, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006)(litigant entitled to notice and an opportunity to be heard before the court imposed the injunctive order ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.”) ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court’s order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”).

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

FEDERAL JUDGE VIOLATES FIRST AMENDMENT, TENTH AMENDMENT RECEIVES ABSOLUTE IMMUNITY

May 8, 2008

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

Purpose of This Post

In order to preclude the haters and defenders of the status quo from their seemingly religious fervor for judicial independence, the purpose of this post is not to argue that U.S. Dist. Judge Donald L. Graham, “Teflon Don” did not have “absolute immunity” or “judicial immunity” for the prohibited acts described here. On the contrary, it is to show the American public what federal judges can receive immunity for. This post will demonstrate that a judge can act like a bull in a china shop with respect to the constitution and well established law and still escape accountability. Additionally, this post will document the Eleventh Circuit’s affinity for deploying unpublished opinions that deliberately omit material facts in order to achieve the desired outcome. The Eleventh Circuit lacks testicular fortitude and the courage of its beliefs because it adamantly refuses to state the acts that Judge Graham was given absolute immunity for. If Teflon Don has really has immunity, then why won’t his enablers state what he is immune from? Chief Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, does not consider a federal judge’s willful disdain and contempt for the Constitution of the United States and well established law to be misconduct within the meaning of the Judicial Misconduct and Disability Act. Lastly, the American Bar Association, “ABA”, has asked the American public to drink its Jim Jones type koolaid and their dogmatic mantra of “judicial independence”. This post will demonstrate the dangers of “judicial independence” versus public scrutiny and accountability.

See if you can tell, by reading the opinion only, what Judge Graham is given immunity from.

ELEVENTH CIRCUIT’S OPINION

Case No. No. 02-13418, Unpublished Opinion by Judge Ed Carnes, Judge Charles R. Wilson, and Judge Phyllis A. Kravitch.

The following represents the only discussion in the entire Opinion as to why Judge Graham and his Magistrate, Frank Lynch, Jr. have absolute immunity.

Viewing the facts in a light most favorable to Mason, we find that he fails to state a cognizable First Amendment claim against Judges Graham and Lynch that would entitle him to relief under § 1983, § 1985 or § 1986. Moreover, judges are entitled to absolute judicial immunity for all acts undertaken in their official capacity unless they acted in “clear absence of all jurisdiction.” See Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000). Neither party disputes that the alleged constitutional violations arose out of actions taken by Judges Graham and Lynch in their official capacities. While Mason alleges that the orders issued by both judges were “illegal and void ab initio” he fails to plead any facts that show that the judges did not act within their legitimate jurisdiction. Therefore, absolute judicial immunity precludes § 1983, § 1985 and § 1986 claims against Lynch and Graham.

See Opinion, pgs. 4,5. This is a mere conclusory statement that all courts routinely reject from litigants. Additionally, this opinion is blatantly dishonest in that deliberately mischaracterizes Mason’s legal arguments for the nefarious purpose of achieving the desired outcome. See Appellant’s Initial Brief pgs. 26-34, for an accurate characteriztion. In the words of the former United States Senator Robert Dole: “Eleventh Circuit quit distorting my record!”. The apparent holding of this opinion is that a federal judge can acquire a case number and set about making up any kind of sh&&### he wants and still be the beneficiary of absolute immunity.

What Judge Graham Was Sued For

Judge Graham was sued in District Court Case No. 02-14049-CV-KMM, Eleventh Circuit Case No. 02-13418 for orders he issued in Dist. Ct. Case No. 99-14027-CV-Graham, Marcellus Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, et.al. Heartland Library Cooperative and Highlands County Board of County Commissioners are local governments. Judge Graham’s Magistrate, Frank Lynch Jr., issued the following orders or injunctions prohibiting direct communication with the government under the guise of “judicial authority”.


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). See Complaint, Pg. 16, ¶150.

The lawsuit, Case No. 02-14049-CV-KMM, Eleventh Circuit Case No. 02-13418, asserted claims under 42 U.S.C. §§1983,1985,1986 for issuing the above orders in Case No. 99-14027-CV-Graham/Lynch. See Complaint, Pg. 16, ¶150. The legality or illegality of these injunctions are central to the lawsuit. According to the Fifth Circuit, U.S. Court of Appeal, Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) an order that an order 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. In this case the order went even further as it attempted prohibit direct communication with the government and to place restrictions how Mason accessed Public Records under Florida Law.

A United States Circuit Judge on the Dangers of Unpublished Opinions

It was 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 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.

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 en banc court.

Links To Briefs and Opinions

  • Opinion
  • Appellant’s Initial Brief
  • Appellant’s Reply Brief.
  • Judge Graham’s Appellees’ Brief. Prepared by AUSA Kathleen M. Salyer
  • Complaint. An html version of the original complaint.
  • Trial Court’s Opinion, Report and Recommendation, R&R, Docket # 52, authored by Magistrate John J. O’Sullivan, adopted by the District Court, Docket # 56. The R&R by Judge O’Sullivan is a scathing personal attack on Marcellus Mason that uses six of the seven total pages for that purpose. These six pages have nothing to do with why the lawsuit was filed. At the risk of straying off point, this R&R is a must read for three reasons. Firstly, it is blatantly dishonest because it mischaracterizes the nature of the complaint and is very evasive. Secondly, it points up why judges can not be trusted to police themselves. It relies heavily on a clearly void sua sponte issued pre-filing injunction. See Case Law. Is a Magistrate Judge, an inferior judge, that lacks Article III protections going to recommend that a superior District Judge be held liable in a lawsuit?

SHORT CASE SUMMARY

District Court Case No. 02-14049-CV-Moore
This lawsuit was filed against Judge Donald L. Graham and Magistrate Judge Frank Lynch, Jr. and is directly related to another lawsuit, Case No., 99-14027, Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners,et.al. This lawsuit expressly demanded “judgement against Lynch and Graham in the form of injunctive and declaratory relief and any other lawful relief. MASON further demands trial by jury.” See Complaint, Pg. 16, ¶150. This lawsuit asserted claims under 42 U.S.C. §§1983,1985,1986 for issuing the following orders in Case No. 99-14027-CV-Graham/Lynch:


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).

Incidentally, though not the point of this post, the Eleventh Circuit has fought tooth and nail to avoid reviewing these orders for validity on multiple occasions. See this site, post “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“.

District Court Case No. 99-14027-CV-Graham/Lynch

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

PREEMINENCE OF FLORIDA SUPREME COURT INTERPRETING FLORIDA LAW

Federal Courts are bound by the highest state court’s interpretation of its laws. The Supreme Court of the United States has said neither it “nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the state.” Johnson v. Fankell (96-292), 520 U.S. 911 (1997). “Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern.” Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

ABSOLUTE IMMUNITY

“As a class, judges have long enjoyed a comparatively sweeping form of immunity, though one not perfectly well defined.” Forrester v. White, 484 U.S. 219, 226 (1988). A long line of Supreme Court “precedents acknowledges that, generally, a judge is immune from a suit for money damages.” Mireles v. Waco, 502 U.S. 9, 10 (1991). “[I]mmunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Id. at Pg. 12. “The proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993).

Judge Graham does not have absolute for two reasons. Firstly, Judge Graham acted in clear violation of all jurisdiction. “But when a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of jurisdiction, judicial immunity is lost. See Bradley v. Fisher, 80 U.S. 13 Wall. 335, 351 (1871)(“when the want of jurisdiction is known to the judge, no excuse is permissible“); Turner v. Raynes, 611 F.2d 92, 95 (5th Cir. 1980) (Stump is consistent with the view that “a clearly inordinate [**13] exercise of unconferred jurisdiction by a judge-one so crass as to estab-lish that he embarked on it either knowingly or recklessly-subjects him to personal liability”).”
Rankin v. Howard, 633 F.2d 844, 849; 1980 U.S. App. LEXIS 11690, *12-13 (9th Cir. 1980).

The acts which formed the basis of the lawsuit were not judicial in nature.

The Acts Were Legislative Not Judicial

Judges have immunity for judicial acts only. “[J]udges do not receive immunity when acting in administrative, legislative, or executive roles.” Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997)(citing Forrester v. White 484 U.S. 219, 229-30). Judges do not have immunity for legislative acts. In Tober v. Sanchez, 417 So.2d 1053, 1055 (Fla. App. Dist. 3 1982) succinctly and aptly stated: “We would be less than candid if we did not acknowledge that, as the present case demonstrates, public agencies are placed at a disadvantage, compared to private persons, when faced with potential litigation claims. It is also pertinent to observe that the wisdom of such a policy resides exclusively within the province of the legislature.” In Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, (1980), the U.S. Supreme Court held that is rulemaking a legislative act where as here Judge Graham propounded a rule which did or does not exist. Judge Graham has stated:

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records. (DE #246). This act is allowed by the First Amendment, the Florida Statutes, and the Florida Constitution. “The right to petition government for redress of grievances — in both judicial and administrative forums — is ‘`among the most precious of the liberties safeguarded by the Bill of Rights.’ Because of its central importance, this right is ‘substantive rather than procedural and therefore cannot be obstructed, regardless of the procedural means applied.’” Graham v. Henderson, 89 F.3d 75 (2nd Cir. 1996) (quoting United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967)). Consequently, Judge Graham has to legislate his act.

Judge Graham has decreed: Plaintiff shall correspond only with Defendants’ counsel including any requests for public records. (DE #246). The Florida Constitution does not require a person to seek the permission of anyone to request public records much less private attorneys. “Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state,..” Florida Const. Article I, Section 24. The Florida Courts have repeatedly held that policy-making and rule-making with respect to the Florida Public Records Act is the exclusive domain of the Florida Legislature. See Housing Authority v. Gomillion, 639 So.2d 117, 122 (Fla.App. 5 Dist. 1994)(“Any change, exemption, or modification must, of necessity, come from the legislature.”); Tribune Co. v. Public Records, 493 So.2d 480, 483 (Fla.App. 2 Dist.1986)(“And only the legislature can create such an exemption, not the court or custodian.”); Barfield v. Ft. Lauderdale Police, 639 So.2d 1012, 1014 (Fla.App. 4 Dist. 1994)(“If the common law privileges are to be included as exemptions, it is up to the legislature, and not this Court, to amend the statute.”); Tampa Television, Inc. v. Dugger, 559 So.2d 397, 398 n.5 (Fla.App. 1 Dist.1990)(“[T]he Public Records Act, excludes any judicially created privilege of confidentiality and exempts from public disclosure only those public records that are provided by statutory law to be confidential or which are expressly exempted by general or special law.”) . According to the Florida Supreme Court, the Florida Public Records Act creates substantive right that only be restricted by the Florida legislature.

“”While Henderson is certainly correct that chapter 119 grants a substantive right to Florida citizens, the legislature also has the prerogative to place reasonable restrictions on that right.

Henderson v. State, 745 So.2d 319 (Fla. 1999). Florida Courts have repeatedly hat the Federal Rules of Civil procedure or any court rules have do not affect a person’s right under Florida Public Records law. See B.B. v. Dep., Children & Family Serv., 731 So.2d 30, 34 n.4 (Fla.App. 4 Dist. 1999)(“Section 119.01 is not intended to expand or contracts rights under court procedural rules.”); Wait v. Florida Power & Light Co., 372 So.2d 420, 425 (Fla. 1979)(“[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.”) If the Florida Supreme Court declines to place restrictions on the right of access to Florida’s Public Records, then who in the hell Teflon Don to do so?

The United States Supreme Court and the Congress has expressly prohibited federal judges from imposing its will on litigants by making rules or orders that abolish or nullify a right recognized by the substantive law of the state. In Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941), the Supreme Court held:

Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution of the United States; but it has never essayed to declare the substantive state law, or to abolish or nullify a right recognized by the substantive law of the state where the cause of action arose, save where a right or duty is imposed in a field committed to Congress by the Constitution. On the contrary it has enacted that the state law shall be the rule of decision in the federal courts.

In Hanna v. Plumer, 380 U.S. 460, 472 (1965), the Supreme Court stated:

We are reminded by the Erie opinion that neither Congress nor the federal courts can, under the guise of formulating rules of decision for federal courts, fashion rules which are not supported by a grant of federal authority contained in Article I or some other section of the Constitution; in such areas state law must govern because there can be no other law.

Clear Absence of Jurisdiction

Lack of Jurisdiction

Judge Graham lacked jurisdiction because the Defendants, Highlands County Board of County Commissioners lacked standing. The Defendants, a government agency, asked for an “preliminary injunction” not to be communicated with directly. ““Defendants, Highlands County Board of County Commissioners … 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.”Docket Entry 199. This is an absurd proposition on its face. The Supreme Court has said that in order “to satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,528 U.S. 167 (2000). The Defendants only claimed injury is:

The tone of Plaintiff’s letters, memorandums, facsimile transmissions, electronic mails, etc., are harassing in nature and are designed to interfere with the legal processes to which Plaintiff has subjected himself through electing to utilize the jurisdiction of this Court.

Judge Graham was without subject matter jurisdiction to restrict, impede, obstruct, or administer the Florida Public Records Act. “Subject matter jurisdiction is the court’s authority to decide the issue in controversy such as a contracts issue, or a civil rights issue. “Where there is clearly no jurisdiction over the subject matter, any authority exercised is a usurped authority, and, for the exercise of such authority when the want of jurisdiction is known to the judge, no excuse is permissible.Stump v. Sparkman, 435 U.S. 349, 356 n.6 (1978). State courts have general jurisdiction, meaning that they can hear any controversy except those prohibited by state law..” URL: http://topics.law.cornell.edu/wex/Jurisdiction
Along this same line, the Supreme Court in Stump at 435 U. S. 358 looked to the statutes and case law to see if the act in question (sterilization) been expressly prohibited. This is a common sense that a judge should not ble to claim immunity for act that is expressly prohibited by law. Neither, the constitution nor any statute gives a federal court jurisdiction with respect to Florida Public Records. “Courts created by statute only have such jurisdiction as the statute confers.” Christianson v. Colt Industries Operating Corp.,486 U.S. 800, 820 (1988). “The Federal Rules of Civil Procedure do not create federal jurisdiction.In re Infant Formula Antitrust Litigation, MDL 878 v. Abbott Laboratories, 72 F. 3d 842, 843 (11th Cir. 1995)(citing Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 368-370 & n. 7, 98 S.Ct. 2396, 2400 &n. 7, 57 L.Ed.2d 274 (1978)). See also Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001) (“Lower federal courts can exercise this power only over cases for which there has been a congressional grant of jurisdiction”). In fact the constitution expressly forbids any such notion. “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 Amendment, U.S. Constitution. Apparently, realizing that there is a jurisdictional problem, along with a violation 28 U.S. § 636(b)(1)(a), the Magistrate attempts to invoke jurisdiction by asserting: “and noting that this Court is considering this issue as a pretrial discovery issue and not an injunction issue per se…” Assuming without arguing that may issue an injunction, a district court can not invoke jurisdiction by asserting the Federal Rules Civil Procedure.

Judge Graham’s order necessarily suggests that because Mason filed an employment discrimination lawsuit in federal court, Judge Graham now has the authority to place restrictions how Mason access Florida Public Records. The Florida Supreme Court has heard this argument and rejected it out of hand.

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.

Wait v. Florida Power & Light Co., 372 So.2d 420, 424 (Fla. 1979).

“[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 (Fla. 1979).

Implicit And Explicit Conclusions of Law

In order for Judge Graham and his Magistrate to have absolute immunity or judicial immunity, each of the following conclusions must necessarily be true.

  • The fling of lawsuit in federal court creates a right for the Highlands County Government not to be communicated with directly by a pro se litigant opposing party. Stately, alternatively, a plaintiff loses his right to communicate directly with the government when he or she sues the government.
  • Federal Judges, applying some unknown Federal Rules of Civil Procedure, can obliterate substantive rights guaranteed by a state and the Constitution of the United States.
  • Federal Judges may make mere conclusory statements.
  • Federal Courts need not say what the Judge is being given immunity for.
  • The filing of lawsuit gives a federal judge the right to obstruct the right to petition the government.
  • The filing of a lawsuit in federal court is grant of jurisdiction with respect to the Florida Public Records Act, Fla.Stat.,§ 119.01.
  • A federal judge may receive absolute immunity for what the State of Florida considers a legislative act.
  • Federal Courts are not required to discuss why injunctive and declaratory relief are not warranted even though the remedy is expressly asserted in a complaint.

Judicial Misconduct

Chief Judge J. L. Edmondson has expressly denied that the act of usurping authority in violation of clearly established law is not judicial misconduct pursuant to the Judicial Conduct and Disability Act 28 U.S.C. §351, et.al. See Complaint of Judicial Misconduct Case No. 05-0008.