Posts Tagged ‘bad motive’

Judge Graham Misstates Material Facts and Law To Support Pre-Filing Injunction

April 27, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Should Judges Be Allowed to Intentionally Misrepresent Material Facts With Impunity?

This post will examine an order rendered by U.S. Dist. Judge Donald L. Graham, “Teflon Don”. The order at issue is a pre-filing injunction or a vexatious litigant injunction that was issued by Teflon Don, sua sponte on September 20, 2001. Though not the point of this post, but it is well settled that a sua sponte issued pre-filing injunction is invalid because it violates due process, or notice and opportunity to respond prior to its issuance. For more discussion and case law on sua sponte issued pre-filing injunctions, see post this site entitled “Judge Graham Disagrees With The 1st, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, And DC Circuit Courts Of Appeal. The importance of “notice and opportunity to respond” will become readily apparent upon reading this post. Mason actually filed two lawsuits, Case No. 99-14027 and 01-14230; neither of which Judge Graham himself adjudged to frivolous. The purpose of this post is to demonstrate a dishonest tactic used by judges to reach the desired outcome. This post will discuss and document the act of intentionally misstating material facts. Lastly, this post will examine whether intentionally misstating material facts, a despicable and dishonest act, is considered judicial misconduct. Judge Graham has been guilty of outright lying before by intentionally misrepresenting the law to Mason. See Liar Page.

A US Circuit Judge On the Potential Dangers of Unpublished Opinions

“If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. (I don’t say that judges are actually doing this–only that the temptation exists.) Or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I’m not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.” 1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas – Little Rock School of Law ; Richard S. Arnold

The Misstated Fact and Misrepresentation

Judge Graham stated that Marcellus Mason filed eleven lawsuits. He then uses inference to suggest that Mason filed eleven lawsuits that lacked merit. As will be proven below, Teflon Don’s words do not match reality because:

  • Mason actually filed one lawsuit at the instance of the pre-filing injunction on September 20, 2001. Technically this one lawsuit was four lawsuits consolidated into one lawsuit in the very early pre-discovery stages at a time when the pro se Plaintiff was unaware of the rules regarding amending complaints.
  • Judge Graham actually counts a lawsuit filed by the Defendant, Highlands County, as a lawsuit filed by Mason. The irony is that the Defendant, Highlands County, filed a lawsuit seeking a prefiling injunction which Judge Graham rejected in February 2001 or just six months before he rendered the filing injunction, sua sponte, of September 20, 2001. Mason initiated no new lawsuits between February 2001 and September 20, 2001.
  • Judge Graham counts five lawsuits in the eleven lawsuits that he claims Mason “filed” where Judge Graham declined to allow Mason to initiate a lawsuit by simply denying in forma pauperis motions without stating a reason for denying the motion. According to Judge Graham’s own definition of “filing”, a lawsuit is not filed until the filing fee is paid. Moreover, Judge Graham has a documented history of denying in forma pauperis motions without stating a reason having done it to Mason 18 times. See IFP History.
  • Judge Graham does not state that he declined to reach the merits of the lawsuit that was filed because he declined to pass upon summary judgment motions that were submitted by the Plaintiff and Defendants. See Docket for pending summary judgment motions. (Doc. 507); (Doc. 667); (Doc. 668); (Doc. 706); (Doc. 797);(Doc. 769);(Doc. 770). Judge Graham chose to dismiss the lawsuit because of alleged hostile and irrelevant out court communications between Mason and Highlands County. See below, “The Dismissed Lawsuit”.
  • In a docket that contains almost one thousand entries, Judge Graham fails to cite one single motion that Mason filed in the case that lacked merit. Rule 11, Fed.R.Civ.P. is designed to punish and deter litigants from filing “frivolous” filings or motions. “Federal Rule of Civil Procedure 11 provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support.” Lectlaw.com.
  • Judge Graham fails to disclose that his mere speculations about Mason’s motive in filing a lawsuit is immaterial as a matter of law. Consequently, even if Judge Graham was a soothsayer and could somehow prove that Mason had a bad motive in filing a lawsuit, such a motive is not a defense to a well grounded lawsuit.

The Misstated and Misleading “Facts”

In order to justify his pre-filing injunction, Judge Graham made the following statements.

Plaintiff Marcellus M. Mason (“Mason”) has filed eleven (11) cases and/or counterclaims in this District, all against either the Highlands County Board of County Commissioners, the Highland Library Cooperative and/or various board members or employees of the County and Library. (collectively the “Defendants”). Each case relates to his prior employment by Defendants and Defendants’ treatment of Mason after his termination.

Docket Entry No. 878, pps. 3-4.

Mason’s original action against Defendants was case no. 99-14027. (the “Original Action”). After vexatious and relentless litigation on the part of Mason, including 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.

Docket Entry No. 878, pps. 3-4.

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.

Docket Entry No. 878, pg. 5.

The True Amount of Lawsuits Filed

At pages 1, 2, and 3 of Judge Graham’s sua sponte issued pre-filing injunction, he attempts to list (11) eleven lawsuits that he claims were filed in the S.D.Fla. by Marcellus Mason. See Docket Entry Number 878. According to Judge Graham himself, ” A Complaint is not considered filed until the filing fee is paid.” See 00-14202, (DE #10, dtd. 11-2-2000); 00-14201, (DE #10, dtd. 11-21-2000). Five of these lawsuits had no filing fee paid, and according to Judge Graham, not filed:

These 5 lawsuits were dismissed without prejudice and are “non-suits” simply because Judge Graham denied Mason in forma pauperis status and stated no reason for this denial. Judge Graham has a history of arbitrary denials of in forma pauperis motions, having done it to Mason 18 times without stating a reason. See IFP History.

Of the 6 remaining lawsuits that Judge Graham claims was filed by Mason, Case No. 14240-CV-Graham was actually filed by Highlands County against Mason. Mason even prevailed on this lawsuit as on January 16, 2001, Judge Graham and his Magistrate Frank Lynch, Jr. concluded:

However, at this point, none those other cases have totally dismissed with prejudice. There are viable claims pending in those cases. * * * 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 for justifying injunctive relief.

Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01).

Of the five remaining lawsuits, Case No. 01-14230-CV-Graham, was removed from state court by the Defendants after the injunction of September 20, 2001 where they knew the case would be automatically assigned to Judge Graham. Judge Graham improvidently dismissed this case because of an improperly granted res judicata application. Judge Graham asserts that the claims in this lawsuit was due to be dismissed because of a prior lawsuit, Case No. 99-14027-CV-Graham. Case No. 99-14027-CIV-Graham/Lynch was filed on February 4, 1999. See Docket Entry No. 1. This lawsuit, Case No. 01-14230-CV-Graham, asserts claims due to Highlands County continuing violations of Mason’s rights by issuing a series “No Tresspass Warning” to Mason every six months, 6-30-99, 12-30-99, and 6-26-00, thereby prohibiting Mason from using the Sebring Public Library. See Complaint, Document No. 1, pgs. 24, 25, 29. If you read the Complaint and Exhibits, you will discover that Highlands County issued three “No Tresspass Warning” to Mason after the prior lawsuit, Case No. 99-14027 was filed on February 4, 1999. Judge Graham’s application of res judicata evinces two absurdities. Firstly, in order to apply res judicata to Case No. 01-14230-CV-Graham those claims would have to have existed on February 4, 1999 when the former lawsuit Case No. 99-14027 was filed. This would have been impossible for claims that did not exist until 6-30-99, 12-30-99, and 6-26-00. Judge Graham is of the apparent belief that Highlands County may commit any tortious or illegal act against Mason and not be sued because of this case. In a word, Judge Graham has immunized Highlands County against all future lawsuits brought by Mason. Judge Graham has taken this errant view of the law elsewhere against Mason . See post this site, “Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata“.

Lastly, of the remaining “filed” four lawsuits, Case Nos. 99-14042-CV-Graham, 99-14257-CV-Graham, 99-14314-CV-Graham were consolidated into one case, 99-14027-CV-Graham.

Information regarding the nature of these lawsuits is fully set forth in html form or Microsoft Word.

Honesty and Judicial Opinion Writing

Thesis: A judge’s opinion should accurately portray the facts. A judge’s honesty and integrity lie at the very heart of that system. In re Shenberg, 632 So. 2d 42, 47 (Fla. 1992).

Legal Experts State that Judge’s Opinions Often Don’t Reflect Reality

There is one form of judicial misconduct that I think clinches the case against Judge Edwards’ position: lack of candor in judicial opinions. One of the worst things a judge can do is to ignore or misstate the critical facts or critical legal issues in a case. Since this kind of misconduct is not generally considered a “crime” nor an impeachable offense, it would fall squarely within the realm of judicial misbehavior that Judge Edwards leaves to the judiciary to regulate..
Professor Monroe Freedman:
Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

Self-Regulation of Judicial Misconduct Could be Mis-Regulation, 89 Michigan Law Review 609 (1990). (Code A90N).

Judicial Misconduct

A feature of this blog is describing conduct that Chief Judge J.L. Edmondson, Eleventh Circuit, and others, do not consider to be judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. §§ 351-364. This posting will demonstrate that federal judges can intentionally misstate material facts or outright lie with near absolute impunity. Chief Judge J.L. Edmondson, and others, assert that such acts, even if true, do not constitute judicial misconduct. See Complaint of Judicial Misconduct No. 05-0020. Moreover, according to Judge J.L. Edmondson’s interpretation of the law, even if Judge Graham were involved in a pattern and practice of total disregard for clearly established law and binding precedent such behavior would still not rise to the level of judicial misconduct. Judge Edmondson’s interpretation also holds that the the aggregate of individual acts does not constitute judicial misconduct. See Complaint of Judicial Misconduct No. 05-0011. For More Support, Complaint Nos. 05-0008, 05-0012, 05-0013, 05-0020, 05-0021. Switching vernacular for the moment, according to Judge Edmondson there aint no judicial misconduct.

Judge Edmondson seems to disagree with his own Judicial Conference who has clearly stated that a pattern and practice intentionally disregarding clearly establish law could be misconduct.

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

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

Judicial Independence advocates state:

Appellate courts serve as a moderating influence by correcting mistakes made by lower courts. The very function of appellate courts also encourages lower courts to adhere to closely to the law and applicable precedents: If a trial court judge knows that an appellate court is likely to reverse a certain decision, she is less likely to stretch the boundaries of the law.

Constitution Project, THE NEWSROOM GUIDE TO JUDICIAL INDEPENDENCE

If the Constitution Project is correct, then Teflon Don should have suffered a reversal on appeal. However, this is not what has happened as the Eleventh Circuit has aggressively fought off all attempts at appellate review of the sua sponte issued pre-filing injunction at issue. See APPELLATE HISTORY: AN EXERCISE IN FUTILITY. Aided by the “unpublished” opinion, the Eleventh Circuit has raised trickery, artifice, and chicanery to new heights or new lows depending upon your point of view. The clear intent of the Eleventh Circuit is not to ever pass on the validity of this sua sponte issued pre-filing injunction and reverse Teflon Don. The Eleventh Circuit has done the schiester lawyer proud.

LEGAL REQUIREMENTS OF PRE-FILING INJUNCTIONS

“[B]efore a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court to make “substantive findings as to the frivolous or harassing nature of the litigant’s actions… To make such a finding, the district court needs to look at “both the number and content of the filings as indicia” of the frivolousness of the litigant’s claims.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). See May vs. Shell Oil Company, 2000 U.S. Dist. LEXIS 14786, *7 (S.D. Fla. 2000)(“courts have a duty to ensure that frivolous or meritless lawsuits do not interfere with their constitutional function:”)[1]; Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985)(holding that an injunction’s purpose is to fashion a remedy to stem the flow of frivolous actions);Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989)(“Litigiousness alone will not support an injunction restricting filing activities.”); Ruderer v. United States, 462 F.2d 897, 899 (8th Cir. 1972) (“affinity for litigation, standing alone, would not provide a sufficient reason for issuing such an injunction.”).

Nowhere in the sua sponte issued pre-filing injunction does it identify one single lawsuit that Mason filed that was frivolous. As a matter of act, Judge Graham is precluded by law from asserting that D.C. Case No. 99-14027-CV was without merit because Judge Graham refused to rule on pending summary judgments by both Highlands County and Mason. A court does not have the duty to protect itself from non-frivolous litigation. It is not unlawful to prosecute a meritorious action. See Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). “ Access to the courts is a fundamental tenet of our judicial system; legitimate claims should receive a full and fair hearing no matter how litigious the plaintiff may be.” In re Oliver, 682 F.2d 443, 446 (3rd Cir. 1982). It was Judge Graham himself who adopted the following: “However, at this point, none those other cases have totally dismissed with prejudice. There are viable claims pending in those cases. * * * 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 for justifying injunctive relief.” Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01). Furthermore, at no time during any litigation that Mason was involved in did Judge Graham impose any Fed.R.Civ.P. Rule 11 sanctions or threaten to do so for filing motions that lacked a substantial basis.

Importance of Motive in Filing a Lawsuit

“[A}n objectively reasonable effort to litigate cannot be sham regardless of subjective intent.” Professional Real Estate Investors, Inc.,v. Columbia Pictures (91-1043), 508 U.S. 49 (1993). see also Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983)(“The filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the Act.”). “Hostility between parties or their counsel ought not to invalidate a lawsuit brought to obtain proper legal relief for potentially meritorious claims.” Colombrito v. Kelly, 764 F.2d 122 (2nd Cir. 1985). “The rule generally prevailing is that, where a suitor is entitled to relief in respect to the matter concerning which he sues, his motives are immaterial; that the legal pursuit of his rights, no matter what his motive in bringing the action, cannot be deemed either illegal or inequitable; and that he may always insist upon his strict rights and demand their enforcement.” Johnson v. King-Richardson Co., 36 F.2d 675, 677 (1st Cir. 1930) see also MASTERSON et al.v.PERGAMENT, 203 F.2d 315 (Sixth Cir. 1953)(“The motive of the stockholder in filing a derivative action is immaterial.”). “Courts will generally not inquire into the motives which actuate the plaintiff in bringing his action, if he has a legal right which he seeks to protect. It is no defense to a valid cause of action that the motive or ulterior purpose of the plaintiff in bringing the suit is based on animosity or malice. Where the plaintiff shows a right to the relief sought, it is immaterial that he is seeking it for purposes other than the ascertainment and enforcement of the rights which he relies.” 1 Fla. Jur. 2d, Actions, Section 29, Page 289. See also CHI., R.I. & PAC. RY. v. Dowell, 229 U.S. 102, 114 (1913) (“If the plaintiff had a cause of action which was joint and had elected to sue both tort-feasors in one action, his motive in doing so is of no importance.”); Chi., Rock Island RY. v. Whiteaker, 239 U.S. 421, 424-5 (1915) (“ the motive of plaintiff, taken by itself, does not affect the right to remove” and that “if there is a joint liability he has an absolute right to enforce it, whatever the reason that makes him wish to assert the right.“).

The Dismissed Lawsuit, Case No. 99-14027-CIV-Graham/Lynch

Judge Graham states he dismissed a case because of Mason’s “repeated refusal to comply with the Court’s rules and orders“. Case No. 99-14027-CIV-Graham/Lynch was filed on February 4, 1999. See Docket. This was an employment discrimination lawsuit based upon Marcellus Mason’s termination by Highlands County Board of County Commissioners and Heartland Library Cooperative in November 1998. The case was dismissed, not on the merits of the case, but based upon banned and irrelevant out of court communications between Highlands County and Mason. See Report and Recommendation,”R&R” (D.E. 766), Order adopting R&R (D.E 791). This case was an involuntary dismissal pursuant to Rule 41(b), Fed.R.Civ.P. due to Mason’s alleged violations of the following orders issued in this case on June 19, 2000, (DE #201), and July 25, 2000, (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 #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.

Incidentally, Mason has maintained that these orders are invalid because they violate the First Amendment, Tenth Amendment, and Magistrate’s Act, 28 U.S.C. § 636(b)(1)(a)(Magistrate may not issue an injunction); however, the Eleventh Circuit has declined to review these orders for validity on multiple occasions. See posting, Eleventh Circuit Repeatedly Refuses To Review Orders For Validity. In a later filed lawsuit, Judge Graham’s Magistrate admitted: the court “dismissed the remaining claims on their merits as sanction for the continued communication of antagonistic emails directly to the defendants in contempt of this Court’s orders“, Case No. 01-14310, (DE #79).

Judge Graham could have decided the case on the facts but he didn’t. 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.

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