Posts Tagged ‘Appellate Review clearly erroneous’

Judge Graham Disagrees With The Fifth Circuit, U.S. Court of Appeals

April 23, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

It is not surprising that Judge Graham, a district judge, would disagree with the Fifth Circuit, U.S. Court of Appeal because Judge Graham has similarly disagreed with the United States Supreme Court. See Postings this site, Florida Judge Thumbs His Nose at U.S. Supreme Court Rulings on Due Process And Attorneys’ Fees and Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts.

In Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559 (Fed. 5th Cir., 2005), the district court “enjoined Singh from “communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, staff, counsel, counsel’s employees, or counsel’s staff.” Similarly, Judge Graham “enjoined” Mason from communicating with his local government, Highlands County Board of County Commissioners. However, Judge Vanessa D Gilmore in Test Masters who was reversed, while Judge Graham has escaped appellate review because the Eleventh Circuit has declined to review his orders or injunctions for validity in what has to be a record number of times. See this site’s posting “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“. Yet again, Judge Graham has avoided appellate rebuke while his colleagues have not been so fortunate. Judge Graham has frequently benefited by such disparate treatment. See postings, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge” and ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal“. The myth of the “Teflon Don” grows larger!

Judge Graham Disagreements With The Fifth Circuit

Judge Graham has multiple disagreements with the Fifth Circuit. Specifically, “Teflon Don”, holds the following disagreements with the Fifth Circuit:

  • Judge Grahams disagrees that his orders or injunctions but “pre-trial discovery issues”.
  • Judge Graham has ruled that Federal Magistrate, Frank Lynch, Jr. may issue an injunction so long as he calls it a “pre-trial discovery issue and not an injunction per se”
  • Judge Graham can prohibit or enjoin direct communication between a pro se Plaintiff and his local government
  • Judge Graham is not required to comply with Rule 65, Fed.R.Civ.P.
  • Judge Graham has the power to dismiss a lawsuit due to lawful out of court communications with the Government

Judge Graham’s Injunction or “Pretrial Discovery Issue and Not An Injunction Per Se”

Judge Graham’s Magistrate, Frank Lynch, Jr., rendered the following orders on June 19, 2000 and July 25, 2000, which 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.

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.

Communications Outlawed by Judge Graham

Judge Graham dismissed a lawsuit because out of court communications with a local government. See Report and Recommendation, “R&R”,(DE #766); Order Adopting R&R, (DE #791). Highlands County filed motions for sanctions in the form of dismissal for the following conversations.

During the week of February 5, 2001, Plaintiff knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. Plaintiff appeared at the office of Fred Carino, Human Resource Director of Highlands County and a supervisory employee of a named defendant in this action, and demanded to view his personnel file. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County’s counsel.

D.E. 511, ¶6, PG.3).

Plaintiff sent e-mail communications directly to supervisory employees of the Defendants, which discussed the “no trespass warnings” that were issued against Plaintiff,...

D.E. 646, ¶10, PG.3). Judge Graham was adamant that Mason not talk to the Highlands County Government. As a matter of fact, three months after the case was closed, Judge Graham said:

[I]ncluding continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants” employees. Mason, however, ignored the Court’s order and continued to contact the Defendants…On June 20, 2001, in view of Mason’s repeated refusal to comply with the Court’s rules and orders, the Court dismissed case number 99-14027.

See Docket No. 878, pgs. 4-5. God damn it, I told you not to talk to the government!

Acrimony and Vitriol Between the Test Master’s Litigants

The district court’s injunction was prompted by allegations from TES that Singh and his employees had called TES dozens of times a day, including seventy-one times on one day in May 2003. TES alleged that the calls included the screaming of obscenities. TES also claims that Singh’s counsel, Sharon Naim, contacted TES’s president, Roger Israni, and threatened to file suit against TES in other states. TES taped the phone conversation and offered it as evidence that Singh had Naim call Israni directly, which is against the rules of professional conduct for lawyers. TES avers that another person acting on behalf of Singh called the accounting department of TES’s counsel, pretended to be a TES staff member, and obtained billing and insurance information about TES. TES also recorded a conversation with another of Singh’s counsel who called TES offices in August 2003, pretending to be a student in order to gain information about TES. TES contends that it has a recording of that conversation. Finally, TES alleges that Singh sent a letter to TES’s insurer, informing the insurer that it should not cover TES’s costs should TES lose in court. In addition, TES’s counsel and Singh did engage in a verbal and physical altercation in the hallway outside the district courtroom in California after TES’s counsel accused Singh of verbally and physically threatening them. Singh denies threatening TES’s counsel. The district court in California had to order the parties and their counsels to go straight from the courtroom to their cars and threatened them with jail time if another incident occurred.
See Test Masters at 579.

Court’s Legal Analysis

Prior restraints are “administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). The district court’s order enjoining Singh from having any future communication with the specified persons was a prior restraint. Any system of prior restraints on communication bears a heavy presumption against its constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (quotation marks omitted). Prior restraints are unconstitutional limitations on free speech except in exceptional circumstances. Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

Court’s Conclusion

The district court prohibited Singh from “communicating directly with . . . TES employees, staff or TES’s counsel, counsel’s employees, or counsel’s staff.” To quote selectively from the district court, the court found that the parties had demonstrated an “immaturity” and “mean-spirited[ness],” and that Singh was pursuing “vexatious litigation.” However, despite the perhaps need of these parties to never speak again, the court did not detail, and the record does not reflect, any “exceptional circumstances” to justify permanently enjoining Singh from generally communicating with TES, TES’s counsel and their staff and employees. The district court’s order enjoining Singh from communicating with TES employees, TES’s counsel, and its counsel’s employees was a prior restraint limiting Singh’s first amendment rights, and because the injunction order is not supported by exceptional circumstances, it is an unconstitutional restraint on Singh’s free speech rights.Testmaster at 579.