Posts Tagged ‘Case No. 01-13664’

In Forma Pauperis Statute Abused To Conceal Acts Of Judicial Misconduct Committed By U.S. Dist. Judge Donald L. Graham

October 19, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”, A Bad Mother&&#!@, Shut Your Mouth!!

Purpose Of In Forma Pauperis Statutes

The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. § 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts.  (internal citations omitted). Toward this end, § 1915(a) allows a litigant to commence a civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit. Congress recognized, however, that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.”  Neitzke v. Williams, 490 U. S. 319, 324 (1989).  U.S. Dist. Judge Donald L. Graham, the subject of this post, has a long and documented history or pattern and practice of arbitrary denials of in forma pauperis motions.  See http://mmason.freeshell.org/ifp.html.  A complaint of judicial misconduct was filed against Judge Graham for abitrarily denying ifp motions on 18 different occasions without offering either of the legal reasons allowed for denying in forma pauperis status. See Neitzke, at 490 U.S. 324(“§ 1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis ‘if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.“) However, Chief Judge J.L. Edmondson, who is charged with with “investigating” allegations of misconduct does not agree that a pattern and practice of intentionally disregarding the law is judicial misconduct.  In Judicial Misconduct Complaint No. 05-0020, Judge Edmondson stated:

In this complaint Mr. Mason, although worded differently that his previous complaints, re-makes the allegation that Judge Graham denied him access to the courts by summarily denying a string of motions for in forma pauper status and that Judge Graham did not identify either of the only two reasons allowed for such denial.

The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U.S.C. § 352(b)(I)(ii) and Addendum III Rules 4(b)(2) and 18(e), this Complaint is DISMISSED.

Judge Edmondson disagrees with his own Judicial Conference whose guidance he is obligated to follow who has clearly stated:

[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.

The Administrative Office of the United States Courts, Judicial Conference, Committee on Judicial Conduct and Disability, See http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf
.

Introduction

Judge Donald L. Graham, “Teflon Don”, and the Eleventh Circuit, U.S. Court of Appeal, abused the in forma pauperis to stop an appeal, Eleventh Circuit Case No. 01-13664, from going forward.  Eleventh Circuit Case No. 01-13664, an unpublished opinion, has been dubbed the “appeal from hell” for its lawlessness, dishonesty, and ingenuity in attempting to defeat an appeal.  This remarkable story, “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“,  is fully documented at:
https://mcneilmason.wordpress.com/eleventh-circuit-case-no-01-13664-the-appeal-from-hell/
.  This particular post documents how U.S. Dist. Judge Donald L. Graham and the Eleventh Circuit abused the in forma pauperis statutes, 28 U.S.C. §1915, in order to deny appellate review of allegations of misconduct against Judge Graham.  These allegations included, but definitely are not limited to, the following:

  • Lying and intentionally misrepresenting law.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for more than 17 months.
  • Allowing scores of motions and filings to languish without being decided.
  • Usurping legal authority. Allowing a Magistrate to issue an injunction prohibiting direct communication with the Highlands County Government.  Additionally, prohibiting  Marcellus Mason from making public records request under Florida Law directly to Highlands County.
  • Violating clearly established law and the authority of the U.S. Supreme Court by issuing pre-filing injunctions without notice and opportunity to be heard.
  • Abuse of the criminal contempt procedure.  Judge Graham took a clearly invalid sua sponte issued pre-filing injunction and made it the basis of a criminal contempt complaint and conviction.
  • Lying and intentionally misrepresenting material facts.
  • Ignoring the U.S. Supreme Court denying access to the courts by refusing to state any reason for denying IFP applications.
  • Awarding attorneys’ fees against an indigent plaintiff in total
    disregard of the law and the United States Supreme Court.

This post is part of an overall pattern and practice of using extreme measures and lawlessness to conceal the misconduct of Judge Graham.  See Documented Allegations of Misconduct.  Incidentally, while not relevant to the discussion of this post, the Eleventh Circuit’s Chief Judge, J.L. Edmondson, has fought tooth and nail to keep from addressing a documented pattern and practice of disregarding well established law by Judge Graham.  See mmason.freeshell.org/372c or mmason.freeshell.org/edmondson/edmondson.  Judge Graham’s misconduct and Judge’s Edmondson’s defense of Judge Graham’s misconduct are fully documented in the following judicial misconduct complaints:

No. 01-0054No. 01-0054-Judicial Council; No. 01-0068; No. 01-68-Judicial Council; INTERVENING MANDAMUS; No. 02-0006; No. 02-0006 -Judicial Council; No. 02-0029; No. 02-0034; No. 02-0052; No. 02-0059; COMPLAINTS FILED IN 2005; No. 05-0008; No. 05-0011; No. 05-0012; No. 05-0013; No. 05-0020; No. 05-0021.

The following complaints of judicial misconduct are currently pending against Judge Graham:

Complaint Status

Judicial Conference
pending

Reconsideration
pending

June 25, 2008
pending

July 9, 2008
pending

July 15, 2008
pending

Material Facts

On February 22, 1999, Judge Edward B. Davis allowed Marcellus Mason to file a lawsuit without paying the filing fees, or in forma pauperis, “IFP”, due to indigency.  See Order, (D.E. #3)(“Having examined the Plaintiff’s Motion and Financial Affidavit, the Court finds that the Plaintiff has demonstrated his inability to pay fees or give security in this matter, as required by 28 U.S.C. § 1915(a). The Court also finds that Plaintiff appears to have brought this action in good faith.;”).  Judge Davis retired and the case was assigned to Judge Donald L. Graham.  The case was ultimately dismissed on June 20, 2001.

The case was dismissed on June 20, 2001. (D.E. 791).

A Notice of Appeal was filed on June 25, 2001. (D.E. 795)

The case was assigned Case No. 01-13664 by the Eleventh Circuit.

A motion to proceed on appeal in forma pauperis was filed on July 13, 2001. (D.E. #799).  A second motion to proceed in forma pauperis was filed on August 10, 2001.  (D.E. #811).

On September 20, 2001, Judge Graham’s Magistrate, Frank Lynch, Jr. denied both pending motions [(D.E. #799), (D.E. #811)] to proceed in forma pauperis(D.E. #877).   This order states:

THIS CAUSE having come on to be heard upon an Order of Reference from the Honorable Donald L. Graham, dated September 10, 2001, and this Court having reviewed the aforementioned Motions and the pertinent portions of the record, and noting that in other actions filed by Plaintiff, Judge Graham has denied Plaintiff’ s motions to proceed in forma pauperis (Case Nos. 00-14116, 00-14201 , 00-14202, 00-14240), and further noting that this Court has compared Plaintiff’s previously filed IFP motions and accompanying affidavits with the instant motion and affidavit and has found no relevant difference, and being otherwise advised in the premises , it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motions to Proceed in Forma Pauperis are DENIED .

See (D.E. #877).

On December 12, 2001, the Eleventh Circuit denied an in forma pauperis motion by simply asserting:

Appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED because appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees.  See Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir. 1990) (holding that right to proceed IFP is not absolute, but rather is left to the sound discretion of the court.

See Case No. 01-13664 IFP Order, pg. 1.

Imagine how you would feel if someone accused you of something and refused to provide facts to support their allegation! This is anti-American.  Upon receiving the order denying IFP, the appellant, Mason filed a motion for clarification begging the Eleventh Circuit for the factual basis for its assertion that “appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees.”  However, the Eleventh Circuit refused to provide facts to support its conclusion and simply stated:

Appellant has filed a “motion for reconsideration and clarification,” which is construed as a motion for reconsideration of this Court’s order dated December 12, 2001, denying leave to proceed on appeal in forma pauperis. Upon reconsideration, appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED.

See Case No. 01-13664 IFP Order, pg. 2.

Prior Approval

As stated above, Mason was allowed initially allowed to proceed in forma pauperis by Judge Edward Davis.  See Order, (D.E. #3).  It is well established that once a party has been allowed to proceeded in forma pauperis in the district court, the party is allowed to proceed on appeal in forma pauperis automatically unless the district judge finds that the party is proceeding in bad faith.   In Starks v. State Of Florida, 2007 U.S. App. LEXIS 26270 (11th Cir. 2007), the Eleventh Circuit, Judges J.L. Edmondson, R. Lanier Anderson, and Rosemary Barkett, presiding, granted in forma pauperis on appeal where the district court found that the underlying complaint or lawsuit was frivolous.   Fed.R.App.P. Rule 24(a) states:

Rule 24. Proceeding in Forma Pauperis

(a) Leave to Proceed in Forma Pauperis.

(3) Prior Approval. A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless the district court–before or after the notice of appeal is filed–certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis. In that event, the district court must state in writing its reasons for the certification or finding.

The Notes to Fed.R.App.P. Rule 24(a) state:

NOTES OF ADVISORY COMMITTEE ON RULES–1967:

“The second paragraph permits one whose indigency has been previously determined by the district court to proceed on appeal in forma pauperis without the necessity of a redetermination of indigency, while reserving to the district court its statutory authority to certify that the appeal is not taken in good faith, 28 U.S.C. § 1915(a), and permitting an inquiry into whether the circumstances of the party who was originally entitled to proceed in forma pauperis have changed during the course of the litigation. Cf. Sixth Circuit
Rule 26.”   

A string of appellate courts have parroted the provisions of Rule 24 of the Federal Rules of Appellate Procedure.

  • “Rule 24 of the Federal Rules of Appellate Procedure, which governs our own in forma pauperis practice, permits any litigant who has been allowed to proceed in an action in the District Court in forma pauperis to proceed on appeal in forma pauperis without further authorization, unless the District Court certifies that the ‘appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed” McKelton v. Bruno , 428 F.2d 718; 138 U.S.App.D.C. 366 ¶4(D.C. Cir. 1970).
  • “”If a litigant is granted i.f.p. status in a district court, and if that status is not revoked in the district court, the litigant, upon filing a notice of appeal, continues on appeal in i.f.p. status. Fed.R.App.P. 24(a)”  Leonard v. Lacy, 88 F.3d 181n.2(2nd Cir. 1996).
  • “Normally, when a litigant is granted leave to proceed in forma pauperis by the district court, this status carries over in the Court of Appeals.  Fed.R.App.P. 24(a). However, if the district court dismisses the case as frivolous under 28 U.S.C. Sec. 1915(d), the litigant must reapply to this Court to proceed in forma pauperis on appeal, since a finding of frivolousness is viewed as a certification that the appeal is not taken in good faith. 28 U.S.C. Sec. 1915(a); Fed.R.App.P. 24(a). Dismissal of a complaint by the district court under Rule 12(b)(6) or any other rule does not negate the in forma pauperis status. Because the district court dismissed the complaint using the language of Rule 12(b)(6), and not as frivolous under 28 U.S.C. Sec. 1915(d), there was no need to again grant Oatess leave to proceed in forma pauperis.” Oatess v. Sobolevitch, 914 F.2d 428 n.4(3rd Cir. 1990).
  • “[W]e are mindful of the provisions of Fed.R.App.P. 24(a) concerning appeals in forma pauperis. This rule provides that a party who has been permitted to proceed in the district court in forma pauperis ‘may proceed on appeal in forma pauperis without further authorization unless, * * * the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the district court shall state in writing the reasons for such certification or finding.'”  Liles v. The South Carolina Department Of Corrections, 414 F.2d 61214(4th Cir. 1969).  “In case the district court certifies that the appeal is not taken in good faith, the required written statement must show not merely that the appeal lacks merit, but that the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958).  Additionally, an appeal is properly denied as lacking the requisite good faith where there is a clear indication that the conduct of an indigent appellant amounts to a deliberate harassment of the courts or an intentional abuse of the judicial process” id. n.1.
  • “(1) a district court may certify that an IFP appeal is not taken in good faith under section 1915(a)(3) and Rule 24(a); (2) if the trial court does so, it is required under Rule 24(a) to set forth in writing the reasons for its certification;”  Baugh v. Taylor, 117 F.3d 197 ¶23(5th Cir. 1997).
  • “Under Fed.R.App.P. 24, a party granted ifp status in the district court retains that status on appeal unless the district court certifies that the appeal is not taken in good faith, in which case the district court must state in writing the reasons for the certification.”  Williams v. Shettle,  914 F.2d 260, ¶4(7th Cir. 1990).
  • “Thus, it is clear that a party may appeal in forma pauperis without making application for a certificate when he has already been permitted by the district court to proceed in forma pauperis. The only time a party is prevented from taking an appeal is when the trial court, before or after the notice of appeal is filed, certifies in writing that the appeal is not taken in good faith. When this occurs the petitioner may still seek a certificate from this court or the Supreme Court.” 
    Peterson v. UNITED STATES of America, 467 F.2d 892 (8th Cir. 1972)
    .
  • “”Petitioner renews his motion to proceed in forma pauperis in this court. This motion is moot, however, because Petitioner is already entitled to proceed in forma pauperis: Petitioner proceeded in forma pauperis in the district court, and the district court never certified that the appeal was not taken in good faith or found that the Petitioner was otherwise not entitled to proceed in forma pauperis. See Fed. R. App. P. 24(a)(3); Singleton v. Hargett 1999 WL 606712 at *1 n.2 (10th Cir. 1999) (unpublished opinion) (dismissing as moot petitioner’s motion to proceed in forma pauperis in the court of appeals).  “Because he was permitted to proceed in forma pauperis in the district court, and because there has been no change to that designation, Petitioner retains his in forma pauperis status on appeal pursuant to Fed. R. App. P. 24(a)(3).” Id. See also Celske v. Edwards, 165 F.3d 396, 398 (7th Cir. 1998) (holding that the petitioner retained his leave to proceed in forma pauperis in the court of appeals because the district court had made no certification of bad faith).  Rhodes v. True, No. 99-3026 (10th Cir. 1999).

There is no finding by Judge Graham that the appeal was taken in bad faith, consequently the law was disregarded.  Judge Graham’s order denying in forma pauperis states the following:

THIS CAUSE having come on to be heard upon an Order of Reference from the Honorable Donald L. Graham, dated September 10, 2001, and this Court having reviewed the aforementioned Motions and the pertinent portions of the record, and noting that in other actions filed by Plaintiff, Judge Graham has denied Plaintiff’ s motions to proceed in forma pauperis (Case Nos . 00-14116, 00-14201 , 00-14202, 00-14240), and further noting that this Court has compared Plaintiff’s previously filed IFP motions and accompanying affidavits with the instant motion and affidavit and has found no relevant difference, and being otherwise advised in the premises , it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motions to Proceed in Forma Pauperis are DENIED.

See (D.E. #877).

The Eleventh Circuit, without offering a scintilla of proof, simply asserts:

Appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED because appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees.  See Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir. 1990) (holding that right to proceed IFP is not absolute, but rather is left to the sound discretion of the court.

See Case No. 01-13664 IFP Order, pg. 1. Notions of fundamental fairness without recitation to the law would require the Eleventh Circuit to support its conclusion that the “appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees“.  Consequently, Mason filed a motion for rehearing demanding to know the factual basis for the Eleventh Circuit’s conclusion that Mason had been untruthful.  The Eleventh Circuit absolutely refused to provide a factual basis to support its conclusion.

Appellant has filed a “motion for reconsideration and clarification,” which is construed as a motion for reconsideration of this Court’s order dated December 12, 2001, denying leave to proceed on appeal in forma pauperis. Upon reconsideration, appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED.

See  Case No. 01-13664 IFP Order, pg. 2.

Disregarding Good Faith Requirement

Judge Donald L. Graham and the Eleventh Circuit both ignored the good faith requirement as their denials do not assert that the appeal was not taken in good faith much less provide any proof that the appeal was not taken in good faith.

A petitioner demonstrates good faith when he seeks appellate review of any issue that is not frivolous.  See Coppedge v. United States, 369 U.S. 438, 445 (1962).  “Dismissal of an in forma pauperis complaint is appropriate when the claim is based on ‘indisputably meritless legal theory or factual allegations are clearly baseless.'”  Heghmann v. Indorf, 2005 Bankr. LEXIS 767,*;324 B.R. 415; (1st Cir. 2005). “[I]f a judge is convinced, as the judge was here, that there is no substantial question for review and an appeal is frivolous and therefore futile, it is his duty to certify that the appeal sought to be taken in forma pauperis is not taken in good faith.” Parsell v. UNITED STATES of America, 218 F.2d 232 ¶25(5th Cir. 1955).  In Johnson v.Dencek, 868 F.2d 969 (7th Cir. 1989), the court remanded the case for a determination that the appeal was not taken in good faith where the district failed to make the determination.  In Johnson, the court ultimately allowed the plaintiff to appeal in forma pauperis notwithstanding the district findings of frivolousness that was predicated upon the plaintiff’s attorney conclusion that the lawsuit lacked merit.

Lack of Respect For the Supreme Court

Both Judge Graham and the Eleventh Circuit have disregarded the Supreme Court by making denials of in forma pauperis without providing any factual support for their decisions. This type of behavior is commonly referred to as a summary denial.  The U.S. Supreme Court has condemned summary denials of in forma pauperis.  The Supreme Court has stated that a court cannot deny in forma pauperis by simply making conclusory statements without stating supporting facts.  In Cruz v. Hauck, 404 U.S. 59, 61 (1971), the Supreme Court opined:

The benefits of this generous provision [in forma pauperis], now codified at 28 U.S.C. § 1915, have been limited, however, by the important proviso added in 1910 (36 Stat. 866) which, as now amended, reads: “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” “Good faith” has been defined as a requirement that an appeal present a nonfrivolous question for review. If the district court certifies that an appeal would not present such a question, then an indigent may ask the court of appeals for permission to proceed in forma pauperis. That court must grant the renewed motion if after a de novo determination it disagrees with the district court’s application of the good faith test. If both lower courts refuse permission, then, unless this Court vacates the court of appeals’ finding, the pauper’s appeal is ended without a hearing on the merits. See Fed.Rule App.Proc. 24(a). It is important that, in all of these proceedings, the only cognizable issue is whether a summary survey (as opposed to plenary deliberation) suggests that a substantial argument could be presented…Our holdings have steadily chipped away at the proposition that appeals of the poor can be disposed of solely on summary and abbreviated inquiries into frivolity, rather than upon the plenary consideration granted paying appellants.

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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)).

Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review Sua Sponte Issued Pre-Filing Injunction

June 12, 2008

Justice Turned On Its Head

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

Foreword

There’s an old Negro spiritual called “May the Work I’ve Done Speak for Me”. In this same spirit, this author allows the work of the Eleventh Circuit, U.S. Court of Appeal and Judge Graham’s cohorts to speak for them. Unlike, Judge Graham, the Eleventh Circuit and his enablers apparent zeal and affinity for dishonesty, mis-characterization, omission, their work will not be characterized or mis-characterized it will be produced in full and publicly available for the reading public to make their own assessments. The record fully supports the idea that the Eleventh Circuit and its Judges and staff attorneys will take extreme, even lawless measures to protect Judge Graham. This post is part of an overall pattern and practice of using extreme measures and lawlessness to conceal the misconduct of Judge Graham. See Documented Allegations of Misconduct.

How Many Times Can a Court Refuse to Review an Order For Validity?

This post will demonstrate that the Eleventh Circuit, U.S. Court of Appeals has set a Guinness world record for refusing to review a clearly void sua sponte pre-filing injunction that was rendered by “Teflon Don”, U.S. District Judge Donald L. Graham on September 20, 2001. The Eleventh Circuit has declined to reach the merits of this sua sponte issued pre-filing injunction on multiple occasions. The denials invoke a kind of creative dishonesty. As a matter of fact, the denials are not consistent and even contradict each other on each successive attempt at appellate review. Even an ardent supporter of the system would have a hard time arguing that there is not a certain amount of dishonesty involved in the matter. The point here is that there has never been any appellate review of the sua sponte issued pre-filing injunction of September 20, 2001. Yet this sua sponte issued pre-filing injunction has been used as a weapon against Marcellus Mason. The Eleventh Circuit has elevated artifice to a level that would make a shister lawyer proud. The coup de grace is the Eleventh Circuit sat idly by while this clearly void sua sponte issued pre-filing injunction was used to form the basis of a criminal contempt complaint and conviction. See this outrageous story, “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life“.

Judicial Independence

This post also makes vividly clear why federal judges cannot and should not be trusted to discipline themselves. The information provided in this post is not only true, but you would not be able to get this information anywhere else. The Eleventh Circuit relies on ignorance and the public’s willingness to believe that its federal judges are honest, diligent, and trustworthy. America should not drink the American Bar Association’s, “ABA”, koolaid of judicial independence.

The Sua Sponte Issued Pre-Filing Injunction

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his own motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. This type of injunction is commonly referred to under several different names: “leave to file injunction”, “vexatious litigant injunction”, “pre-filing injunction”, “filing injunction”, “1651 injunction”. This order was rendered when the matter had been on appeal since June 25, 2001. This fact creates a potential jurisdictional problem. See Post, “Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal!” to see how the Eleventh Circuit dishonestly handled this problem. For specific case law on sua sponte issued injunctions, see Case Law On Pre-Filing Injunctions, below. This same sua sponte issued pre-filing injunction that Mason was not notice given notice and opportunity to respond to makes a so-called “finding of bad faith” that was subsequently used to award a heavily insured governmental entity attorney’s fees of $200,000. At pages 5,6, this sua sponte issued pre-filing injunction asserts:

It has become clear to the Court that Mason is proceeding in bad faith. Indeed, he has admitted as much in his own pleadings and correspondence…Such activity is in bad faith and will not be permitted by the Court.

A finding of bad faith requires due process as well. ” “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,..” Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). See also Byrne v. Nezhat, 261 F.3d 1075 (11th Cir., 2001)(A court should be cautious in exerting its inherent power and “must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.” ). See Judge Donald L. Graham Awards $200,000 Attorney’s Fees Against An Indigent. Apparently, Judge Graham does not have to do a damn thing even if the United States Supreme requires it.


Case No. 01-13664-A, Direct Appeal

The unpublished opinion rendered in this matter is a joke and model of dishonesty and deserved its own page and is a must read, see “Eleventh Circuit Case No. 01-13664: The Appeal From Hell

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

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

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

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

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


Case No, 01-15754, Mandamus

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

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

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

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

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


Rehearing Denied

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

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

Rehearing Denied

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


Case No. 01-16218

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

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

See Opinion Case No. 01-16218.


Case No. 02-11476-A

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

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

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


Case No. 02-14646, Mandamus

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

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


Case No. 04-11894, Mandamus

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

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

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

At page 3, the Court asserts:

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

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


Case No. 05-10623-I, Mandamus

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

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

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

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

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

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

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

“Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ of which the Court speaks can be won only if judges honor the Constitution.” Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting). “Due process is perhaps the most majestic concept in our whole, constitutional system.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 174 (1951) (Justice Frankfurter, concurring). It is ingrained in our national traditions, and is designed to maintain them. In a variety of situations, the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution.” id. 161. “Fairness of procedure is “due process in the primary sense.” Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 281 U. S. 681.

In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Right of Access To Courts is Constitutionally Protected

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

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 Smith v. United States, 2010U.S. App. LEXIS 14050,*;386 Fed. Appx. 853 (11th Cir. 2010) , the
Eleventh Circuit held:

“Numerous persuasive authorities support the idea that due process requires notice and a hearing before a court sua sponte enjoins a party from filing further papers in support of a frivolous claim…Smith’s filing can therefore be construed as a motion for relief under Federal Rule of Civil Procedure 60(b)(4). A judgment is void under that rule “‘if the court that rendered it . . . acted in a manner inconsistent  [*8]  with due process of law.'”..We therefore vacate and remand so that the district court may consider imposing a lesser restriction that will protect against abusive filings without improperly restricting Smith’s right of access to the courts.   If the district court decides that an injunction is necessary, Smith should be provided with an opportunity to oppose the injunction before it is instituted. “

It is remarkable that the Eleventh Circuit, sua sponte, or on its own motion, initiated Federal Rule of Civil Procedure 60(b)(4) to reverse Judge Maurice Mitchell Paul.  Also, 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). The United States Supreme Court has stated: A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees. (emphasis added) Chambers v.Nasco, Inc.,501U.S. 32, 50 (1991).


.

Pre-filing Restrictions

1. Plaintiff Marcellus M. Mason is Permanently enjoined

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

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

See Docket Entry No. 878.

Do Staff Attorneys Decide Appeals At The Eleventh Circuit, U.S. Court of Appeals?

June 12, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct.

Questions For Consideration

If a mere pro se litigant filed an appeal which excoriated a supposed excellent jurist like U.S. District Judge Donald L. Graham, “Teflon Don”, and accused him of judicial misconduct that could be proven, what do you think the staff attorneys at the Eleventh Circuit would do? The answer is the allegations will be simply be ignored by deploying an unpublished opinion that omits material facts. The author would prefer the reader to read the rest of this post to see how this is possible, but for those who can’t wait, please see:

Are Staff Attorneys at the Eleventh Circuit, U.S. Court of Appeals Deciding Cases and Appeals?

It is widely rumored, especially among mere pro se litigants, that staff attorneys, not United States Senate confirmed United States Circuit Court Of Appeals Judges, decide appeals in many cases. While this post will take a look at a couple of cases that the Eleventh Circuit, U.S. Court of Appeal handled, there is no reason to believe that similar practices are not being deployed elsewhere. The overwhelming majority of opinions coming out of the U.S. Circuit Court of Appeals are unpublished opinions which until recently could not be cited as binding authority. The evidence presented here will prove beyond a resonable doubt that staff attorneys, using unpublished opinions, do in fact decide cases, especially mere pro se cases or appeals.

According to the Administrative Office of the U.S. Courts:

“The number of federal appeals court judgeships has not changed since 1990. In that same period, those courts’ caseloads increased by 41 percent. Of great aid to judges in the 12 regional appellate courts over those years have been the 12 court staff attorney offices…Judge Joel Dubina of the U.S. Court of Appeals for the Eleventh Circuit said, “We could not handle our caseload without the assistance of staff attorneys. The staff attorney office is an integral part of our court…”Core responsibilities vary among staff attorney offices, but in each appeals court they include review of all appeals filed by prison inmates without a lawyer’s help. Screening such “pro se” prisoner cases was the initial focus of staff attorney offices when they were formally authorized and established by Congress in 1982… Over time, the scope of the office’s substantive legal work expanded, involving staff attorneys in a larger percentage of the 60,000 federal appeals filed each year…Duties handled by staff attorney offices today range from screening all appeals, to drafting proposed opinions on preliminary matters, to preparing proposed orders, to reviewing pro se appeals for issues warranting oral arguments. Chief Judge William Wilkins said the productivity and reliability of the Fourth Circuit court’s staff attorney office allows judges and their law clerks to “minimize the time spent on the large number of pro se and counseled cases that do not present factual or legal issues that require oral argument for appropriate resolution.” “This enables us to allocate additional time to those more complex cases that are set for oral argument,” he said…In the Eleventh Circuit, staff attorneys, among other things, screen every appeal for possible jurisdictional defects. “We save the judges a lot of time by carefully going through volumes of handwritten and often imprecise legal arguments, and putting these in a form, along with citations to the record, briefs and applicable case law, that saves the judges time,” said Naomi Godfrey, the court’s senior staff attorney.”

See Staff Attorney Offices Help Manage Rising Caseloads.

A United States Circuit Judge on the Potential Dangers of Unpublished Opinions

It was U.S. 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 judgesare 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 an en banc court.

Cases Decided by Staff Attorneys

This post will refer the reader to three appeals that were decided by staff attorneys at the Eleventh Circuit, United States Court of Appeals: Case No. 01-13664, 01-15754, and 02-13418. Each of these appeals excoriates U.S. District Judge Donald L. Graham, however, you won’t see a word of the accusations leveled at Judge Graham in the opinions. U.S. District Judge Donald L. Graham was accused of the following documented acts in the above appeals:

  • Lying and Intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction during the entire pendency of the lawsuit from November 1999 to June 20, 2001 or about 19 months.
  • Judge Graham falsely completed a Civil Justice Reform Act Report, “CJRA” to conceal the fact that he had a motion for a preliminary injunction pending for more than 17 months.
  • Usurping authority by allowing a Magistrate, Frank Lynch Jr., to issue preliminary injunctions two times.
  • Usurping authority by allowing a Magistrate to dictate to a non-lawyer that he must seek the permission of private attorneys in order to speak with a local government.
  • Usurping authority by allowing a Magistrate to set restrictions on how Florida Public Records are to be accessed.
  • Allowing scores of motions to go undecided for months.
  • Intentionally misstating material facts in order to render a pre-filing injunction.
  • Disrespecting several well-established Supreme Court decisions proscribing certain acts of Judges.
  • Judge Graham has repeatedly and improperly denied access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions 18 separate times.
  • Judge Graham has been involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction which ultimately formed the basis of a criminal contempt complaint and conviction.
  • Judge Graham used the criminal contempt process to force the withdrawal of a lawsuit.
  • Judge Graham awarded a massive $200,000 in attorney’s fees to Highlands County against an indigent plaintiff, Marcellus Mason, not on the quality of the underlying lawsuit, but based upon Judge Graham’s speculation about Mason’s motive.
  • Judge Graham attempted to circumvent the appellate process by using intimidation.

For support of these allegations and others, see Core Allegations.

The three appeals mentioned above are fully set forth and explored in detail in the following posts:

Federal Magistrate John J. O’Sullivan Omits Material Facts In Order to Deceive

May 11, 2008

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

Purpose of this Post

This post will take a Report and Recommendation,”R&R” of Federal Magistrate John J. O’Sullivan and demonstrate that he intentionally omitted material facts for the sole purpose of deception. Judge O’Sullivan, suggests without stating, that the Eleventh Circuit had reviewed two orders for validity when knew or should have known that they didn’t. If the Eleventh Circuit had declared the orders in question to be valid and constitutional, all Judge O’Sullivan needed to do was say so. Admittedly, this post presumes that Magistrate John J. O’Sullivan reads the documents that he references in his R&R and that he reads the documents that support a pending motion. The purpose of this post is to:

  • Question the personal integrity of Federal Magistrate John J. O’Sullivan.
  • Vindicate the personal integrity of Marcellus Mason.
  • To show the extreme measures federal judges will employ to protect each other.
  • To help make the argument that “judicial independence” equals judicial non-accountability.
  • To show how a judge can fit the “facts” around desired outcome and place the document beyond public scrutiny.
  • To demonstrate that the federal judicial process needs the disinfectant of sunlight and public scrutiny.

Magistrate John J. O’Sullivan left out the material fact that the Eleventh Circuit, on appeal, refused to discuss the validity of two orders, though fully briefed, (DE# 201 and 246), that it claimed that Marcellus Mason violated. It is really quite a remarkable story in that the Eleventh Circuit spent 14 pages talking about Mason’s supposed violations of these orders, but none talking about their validity which is the reason the appeal was filed in the first place. It could have saved itself some pages and “judicial resources” by simply recognizing the orders are not legal in the first place. However, the Eleventh Circuit chose to give the illusion of “meaningful appeal”.

Pertinent History [Case No. 99-14027-CV-Graham/Lynch]

On June 15, 2000, Docket Entry 199, and July 12, 2000, Docket Entry 231, Maria Sorolis and Brian Koji, Allen, Norton Blue asked Judge Graham’s Magistrate, Frank Lynch, Jr., to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants, the Highlands County Board of County Commissioners. 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 by the Magistrate, Frank Lynch, Jr., on June 19, 2000 and July 25, 2000.

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. Additionally, these orders directed that Mason contact these same lawyers prior to making public records request under Florida law. Between June 19, 2000 and July 25, 2000, Mason repeatedly challenged the jurisdiction of the district court via motions and the like. Judge Graham and the Magistrate absolutely refused to state where they got the legal authority from to issue these orders.

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.

Judge Graham has held that the above are orders are not “clearly erroneous nor is it contrary to law.” Specifically Judge Donald L. Graham held:

On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary Defendants in this action. Upon notice that Plaintiff was violating this order, Defendants filed a Renewed Motion For Preliminary Injunction. On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants’ Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. Magistrate Judge Lynch also ordered that Plaintiff shall only correspond with Defendants’ counsel.

Plaintiff then moved to rescind the July 25, 2000 order, however, on August 15, 2000, Magistrate Judge Lynch denied Plaintiff’s Motion to Rescind. Plaintiff appeals the August 15, 2000 ruling. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch’s ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).

See Docket Entry No. 407 dated November 2, 2000.

Impetus Of Judge O’Sullivan’s Statement

The act that precipitated Judge O’Sullivan’s statement was a “Motion to Vacate Conviction”, in Case No. 02-14020-CR-Moore, Document No. 106. Case No. 02-14020-CR-Moore was a criminal contempt case based upon Mason’s alleged non-compliance with a clearly void sua sponte issued pre-filing injunction. This is an interesting matter in and of itself, however discussing the nature of this case is not the purpose here. For more information see, mcneilmason.wordpress.com, generally, and specifically a post entitled “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life“. The “Motion to Vacate Conviction” was filed on 07/17/2007, (D.E. #106). Among other things, this motion sought to have the following orders rendered by Judge Graham and his Magistrate, Frank Lynch, Jr., declared unconstitutional:

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), datd 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 motion sought declaratory relief pursuant to Rule 60(b) Fed.R.Civ.P. which in pertinent part states:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (4) the judgment is void;

A Rule 60(b)(4) is not subject to any time limitation. Carter v. Fenner, 136 F.3d 1000,1006 (C.A.5 (La.), 1998); Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130 (C.A.11 (Fla.), 1994)(“the time within which a Rule 60(b)(4) motion may be brought is not constrained by reasonableness”). At page 3, this motion specifically asserts:

On October 16, 2002, the Eleventh Circuit decided the direct appeal, D.C. Case No. 99-14027-CV-Graham, 11th Cir. Case No. 01-13664. In the entirety of the very verbose 14 page (unpublished) opinion, there is no discussion as to why the so-called “discovery orders”,[(D.E. #201); ,[(D.E. #246)] were or were not violative of the First Amendment; however, there is ample discussion about Mason’s so-called violation of these “discovery orders.”

At page 23, this motion specifically requests the following remedy:

A declaration that the so-called “discovery orders”, Case No. 99-14027-CV- Graham, (D.E. #201, dtd. 6-19-2000) and (D.E. #2461, dtd. 7-25-2000), are unconstitutional.

The “Motion to Vacate Conviction”, Document No. 106, uses nine pages, 15-23, of small type, 10 point, to argue that the orders are invalid and unconstitutional. Apparently, Judge O’Sullivan is unable to reach the desired outcome so he just ignores the arguments.

The Defendant, Highlands County Board of County Commissioners, in the lawsuit who was the beneficiary of the court’s largess with respect to the above orders filed no brief against this motion. Consequently, the motion should have been granted by default pursuant to Local Rule 7.1.C which states:

C. Memoranda of Law. Each party opposing a motion shall serve an opposing memorandum of law not later than ten days after service of the motion as computed in the Federal Rules of Civil Procedure. Failure to do so may be deemed sufficient cause for granting the motion by default.

Judge O’Sullivan’s Act of Deception

The following is a direct quote from the Report and Recommendations authored by Federal Magistrate Judge John J. O’Sullivan.

The undersigned notes that in his appeal to the Eleventh Circuit, appellate Case no. 01-13664, the defendant made essentially the same arguments he makes here with respect to Judge Lynch’s Orders (DE# 201 and 246). See Mandate (DE# 929 in 99-cv-14027-DLG, 4/18/03). The defendant argued that the Orders (DE# 201 and 246) violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records. Id. at 11. Notwithstanding the defendant’s arguments, the Eleventh Circuit affirmed the district court’s dismissal of case no. 99-cv-14027-DLG based on the defendant’s continued violations of the orders issued in that case. Accordingly, the defendant’s request for a declaration that Judge Lynch’s Orders (DE# 201 and 246) are unconstitutional should be DENIED.

Report and Recommendations, R&R, Doc. No. 118. If the Eleventh Circuit had declared the orders in question to be valid and constitutional, all Judge O’Sullivan needed to do was say so. Instead Judge O’Sullivan chose to engage in the act of stating deceptive truisms that purposedly evaded the issue. Every word of the Magistrate’s statement is true and there in lies the danger. When the general public or the legal community reads the statement of a federal judge they automatically assume them to be true. If a litigant disagrees with a decision of a judge, he or she is automatically branded a mere “disgruntled litigant”; consequently, the “disgruntled litigant” is not to be believed. There is another alternative and that is the Judge could be untruthful as Judge O’ Sullivan is here. The clear and unmistakable intent of Judge O’Sullivan’s statement is to suggest the orders, DE# 201 and 246, in question were reviewed for validity by the Eleventh Circuit on appeal in Case No. 01-13364. If Judge O’Sullivan read the document he referenced, DE# 929, or page 3 of the motion, Document No. 106, then he clearly would have noticed that the only review of these orders, DE# 201 and 246, consisted solely of the following statement:

On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.”

DE# 929, is 17 pages consisting of three documents: (1)a cover letter from the Eleventh Circuit; (2)a mandate from the Eleventh Circuit; (3)An unpublished “opinion”, Case No. 01-13664, a direct appeal. The quoted statement comes from page 11 of the document and page 9 of the opinion. The undisputed fact is that Judge O’Sullivan was being untruthful. Yet again, Teflon Don, avoids scrutiny again.

Fifth Circuit, US Court of Appeal

The Fifth Circuit, U.S. Court of Appeal has rejected a similar injunction as unconstitutional. 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. 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 mcneilmason.wordpress.com posting “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“. Yet again, Judge Graham has avoided appellate rebuke while his colleagues have not be 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!

Pertinent History [Case No. 99-14027-CV-Graham/Lynch]

On June 15, 2000, Docket Entry 199, and July 12, 2000, Docket Entry 231, Maria Sorolis and Brian Koji, Allen, Norton Blue asked Judge Graham’s Magistrate, Frank Lynch, Jr., to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants, the Highlands County Board of County Commissioners. 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 by the Magistrate, Frank Lynch, Jr., on June 19, 2000 and July 25, 2000.

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. Additionally, these orders directed that Mason contact these same lawyers prior to making public records request under Florida law. Between June 19, 2000 and July 25, 2000, Mason repeatedly challenged the jurisdiction of the district court via motions and the like. Judge Graham and the Magistrate absolutely refused to state where they got the legal authority from to issue these orders.

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.

Judge Graham has held that the above are orders are not “clearly erroneous nor is it contrary to law.” Specifically Judge Donald L. Graham held:

On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary Defendants in this action. Upon notice that Plaintiff was violating this order, Defendants filed a Renewed Motion For Preliminary Injunction. On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants’ Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. Magistrate Judge Lynch also ordered that Plaintiff shall only correspond with Defendants’ counsel.

Plaintiff then moved to rescind the July 25, 2000 order, however, on August 15, 2000, Magistrate Judge Lynch denied Plaintiff’s Motion to Rescind. Plaintiff appeals the August 15, 2000 ruling. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch’s ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).

See Docket Entry No. 407 dated November 2, 2000.

Eleventh Circuit, U.S. Court of Appeal

Case No. 01-13664. The Eleventh Circuit,
Judge Stanley F. Birch, Jr., Judge Susan H. Black, and Judge Stanley Marcus, rendered a prolix 14 page opinion on October 16, 2002 that does not discuss the validity of these orders. It is quite remarkable in that The Eleventh Circuit is single-mindedly focused on alleged out of court communications with his government by Mason as alleged violations of the orders above while steadfastly refusing to review the validity of these orders. On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.” See Pg. 10. Even though The Eleventh Circuit admitted the orders in question were being tested for validity on appeal, The Eleventh Circuit refused to review these orders for validity.

Chief Judge J.L. Edmondson Aggressively Defends Judge Donald L. Graham

April 17, 2008

Judge Donald L. GrahamJudge Donald L. Graham

Foreword

There’s an old Negro spiritual called “May the Work I’ve Done Speak for Me”. In this same spirit, this author allows the work of Chief Circuit Judge J.L. Edmondson and his cohorts to speak for them. Unlike, Judge Graham and his enablers, their work will not be characterized or mis-characterized it will be produced in full and publicly available for the reading public to make their own assessments. The record fully supports the idea that Judge Edmondson and his colleagues at the Eleventh Circuit, U.S. Court of Appeals have defined the concept of “judicial misconduct” out of existence. Moreover, the record here will reveal that Judge Edmondson and his colleagues will not mention the allegations of misconduct raised against Judge Graham, much less test them for veracity.

What To Focus On

  • The allegations of misconduct are not denied.
  • The allegations of misconduct are rarely mentioned.
  • The Allegations of misconduct were ignored in the appellate process
    • Usurping Legal Authority
    • Refusing to Rule on a motion for a preliminary injunction
    • Allowing Scores of Motion to Languish
    • Judge attempted to arrogate his own authority by ordering the clerk to return notices of appeals without filing them.

      • intentionally lying and misrepresenting the law;
      • refusing to rule on a motion for a preliminary injunction for more than 15 months;
      • allowing scores of motions to go undecided;
      • and usurping legal authority.
      • The complaint alleges (Core Allegations):
      • intentionally lying and misrepresenting the law;
      • refusing to rule on a motion for a preliminary injunction for more than 15 months;
      • allowing scores of motions to go undecided;
      • and usurping legal authority.
    • See Complaint and Order, Judicial Council Order.

      December 14, 2001, Judge R. Lanier Anderson renders order dismissing the complaint due to:

      The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling”. Additionally, this complainant currently has pending in this court several Petitions for Writs of Mandamus that address this issue. Consequently, pursuant to 28 U.S.C. 372(c)(3)(A) and Addendum Three Rule 4(a)(2) this Complaint is Dismissed.

      When Judge Anderson wrote this order, the Eleventh Circuit had already had denied the mandamus petition, Case No. 01-15754, which he references in his order dismissing this complaint. Consequently, Judge Anderson knows that Judge Graham’s misconduct has not been discussed, much less remedied.


      INTERVENING MANDAMUS

      December 5, 2001, in a terse one page, (Case No. 01-15754), “opinion” denies relief. “The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.”
      January 25, 2002, the Eleventh Circuit refuses to give the basis for its opinion of December 5, 2001 and denies a motion for rehearing or clarification.

      Complaint No. 02-0029

      Judge Graham attempted to use the contempt process to force Mason to drop a lawsuit filed against him.

      In this Complaint, Mr. Mason makes the unsupported allegation that Judge Graham has “improperly and illegally used his office to bring criminal contempt charges against me since the imitation (sic) of my last complaint on February 8, 2002”. Although Mr. Mason does not submit any evidence or documentation in support of his allegation, Judge Graham did in fact issue an Order to Show Cause regarding possible contempt charges against Mr. Mason detailing why Mr. Mason should be charged with criminal contempt, Not one reason cited in this order relates to any complaints having been filed against Judge Graham by Mr. Mason. The allegations that Judge Graham improperly and illegally issued the Order to Show Cause, and that it was issued in retaliation for Mr. Mason having filed complaints against judge Graham are clearly disputed by Mr. Mason’s behavior and obvious disregard for Judge Graham’s Omnibus Order and are “directly related to the merits of a decision or procedural ruling”, Therefore, pursuant to 28 U .S.C. § 372(c)(3)(A) and Addendum III Rule 4(a)(2), this Complaint is Dismissed .

      See Complaint and Order.


      COMPLAINTS FILED IN 2005

      A Series of complaints, Nos. 05-00008, 05-0011, 05-0012, 05-0013, 05-0020, and 05-0021, were filed in 2005. In order to keep Judge Edmondson from viewing allegations of misfeasance, malfeasance, and nonfeasance against Judge Graham in isolation, Mason included the following allegations in all the complaints so that Judge Graham’s record could be viewed in the aggregate.

      Additionally, in 2005, Judge Edmondson knows for certain that Judge Graham has escaped appellate review because the Eleventh Circuit, though fully briefed, refused to discuss whether Judge Graham should have disqualified. Moreover, the Eleventh Circuit declined to discuss the allegations of misconduct and abuse that Mason used to support the thesis that Judge Graham should have disqualified. See, Case No. 01-13664, Unpublished Opinion.


      Complaint No. 05-0008

      Complaint filed January 29, 2005.

      Additionally, Judge Graham knowing falsely created a Civil Justice Act Report that concealed the fact that he had a motion for a preliminary injunction pending for more than 15 months. Judge Edmondson reply to these allegations:

      In this complaint, the single (unsupported) allegation that has not already been determined in previous complaints filed by Mr. Mason against Judge Graham is that Judge Graham intentionally falsified his March 31, 2001, Civil Justice Reform Act Report in an attempt to conceal the fact that he had not ruled on one of Mr. Mason’s motions for over 15 months. Notwithstanding the fact that the motion in question was pending for more than six months, and the fact that the March 31, 2001 report is incorrect, Mr. Mason has not presented any information, evidence or documentation to support his claim to suggest that the omission of this motion on this CJRA report was an intentional attempt by Judge Graham to conceal his failure to rule on the motion. The allegations of this Complaint are “frivolous”, “successive”, and “appropriate corrective action has been taken”. Therefore, pursuant to Chapter 16 of Title 28 U .S.C. § 352 (b)(I)(ii) and Addendum III Rules 4 (b)(3) and (4) and 18(c) this Complaint is DISMISSED.


      Order 05-0011. Complaint No. 05-0011
      Complaint filed January 31, 2005.
      This complaint, in addition to the core allegations, alleges the following:
      Judge Graham has arrogated his own authority, much like Sadam Hussein, Stalin, Hitler, other infamous autocrats and dictators. Specific acts of misconduct committed by Mr. Graham include, but is not limited to the following:
      Concocting a patently illegal injunction or pre-filing screening under the guise of “inherent authority”. See (D.E. 878), URL: http://mmason.freeshell.org/DE-878/de878.pdf.Using this patently illegal injunction to initiate and gain a criminal contempt conviction. Allowing the Eleventh Circuit to use this patently illegal injunction, (D.E. 878), rendered on September 20, 2001 , to affirm the dismissal of a case, 99-14027-CV-Graham, that closed on June 20, 2001. Imagine that! Allowing the Eleventh Circuit to destroy my right under the “rule of law” to appeal this patently illegal injunction, (D.E. 878).Using intimidation by ordering me, Robert Waters, AUSA, Frank Smith, U.S. Probation, and others to come to a “Status/Motion Hearing” on January 9, 2005. Abusing his office and circumventing the appellate process by ordering me not to file any one page requests to file Rule 60(b) motions and refusing to put this illegal order in writing so that it can be challenged on appeal. July 7, 2005, Judge Edmondson answered these allegations:

      In this complaint, there are only two allegations that have not been determined in previous complaints filed by Mr. Mason against Judge Graham. Mr. Mason first complains that Judge Graham issued a verbal order on January 14, 2005, which advised him not to file any further pleadings with the court . Mr. Mason then complains that this order was not in writing to prevent him from filing an appeal. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling or frivolous or both”, and the allegations of the complaint “lack any factual foundation or are conclusively refuted by objective evidence” . Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.


      Order No. 05-0012. Complaint No. 05-0012

      COMPLAINT FILED FEBRUARY 7, 2005. SPECIFIC ALLEGATIONS OF MISCONDUCT AND JUDICIAL ABUSE

      1. Mr. Graham abused his office by having the U.S. Marshall, Keith L. Kluttz, come and interrogate me at my home on or about February 5, 2004 when he had no earthly reason to do so.
      2. Mr. Graham abused his office by ordering me to come to “Status/Motion Hearing” on January 14, 2005 on a closed civil case, 99-14027.
      3. Mr. Graham conducted a quasi criminal hearing under the guise or cloak of a “Status/Motion Hearing” in a civil matter. The AUSA and U.S. Parole were attendance at this “Status/Motion Hearing”. I was unrepresented by a competent criminal defense lawyer.
      4. Graham ordered me to answer his intimidating questions in violation of my Fifth Amendment rights. Mr. Graham gave me no warning that my statements could be used against me even though the U.S. Attorney and U.S. Probation were in attendance.

      On January 9, 2005, Mr. Graham concocted what he termed a “Status/Motion Hearing” order. This order was then certified on January 10, 2005 by one of Mr. Graham’s clerks. This order specifically demands that the following individuals be there: Frank Smith, U.S. Probation, Robert Waters, AUSA, Lynn Waxman, Appellate Attorney, Maria Sorolis, counsel for Highlands County. This order was picked up by Fedex on January 10, 2005 and delivered to my home on January 11, 2005. Mr. Graham scheduled this hearing for January 14, 2005 at 15:30 in Fort Pierce. Mr. Graham was already scheduled to be in Fort Pierce on this date. Mr. Graham made no effort to talk to me or my appellate attorney about dates that would be convenient to us. Mr. Graham made no prior contact with me or Ms. Waxman. At this hearing, Mr. Graham made absolutely no mention of the merits of any pending motion in the civil case, 99-14027. Mr. Graham kept saying the case was closed and not to ‘file’ anymore Rule 60(b), Fed.R.Civ.P. motions or requests to file Rule 60(b), Fed.R.Civ.P. motions. Mr. Graham asked U.S. Probation about the terms of my probation. Why is this needed in a civil matter?
      For what purpose did AUSA Robert Waters and US Parole Officer Frank Smith attend a “Status/Motion Hearing” in a civil matter? Mr. Graham has refused to put any of the “commands” he made in writing so that they could be held up to public scrutiny. Mr. Graham felt it important enough to hastily concoct a “Status/Motion Hearing”, but not important enough to memorialize is “commands” to writing. Mr. Graham does not have the legal authority to demand, under the threat of arrest, that I attend a “Status/Motion Hearing” on a closed civil case. Mr. Graham had a deputy US Marshall come by my home and interrogate me without the presence of counsel even though criminal contempt case was pending, Case No. 02-14020-CR-Moore. I was questioned by the U.S. Marshall without benefit of having an attorney present. Mr. Graham had no probable cause to send the US Marshal to my house. The mere fact that Mr. Graham disagrees with my unrelenting attacks on his record and personal integrity is not sufficient reason to “sick the dogs on me”, or US Marshal. The US Marshal’s office is not Mr. Graham’s private police force.
      June 27, 2005, Judge Edmondson states:

      In this complaint, there are four allegations that have not been determined in previous complaints filed by Mr. Mason against Judge Graham. Mr. Mason complains that Judge Graham abused his office by ordering him to appear at a Status/Motion hearing held on January 14, 2005, and that Judge Graham scheduled this hearing without any attempt to talk with him or his attorney about dates that were suitable for them. Mr. Mason also complains that Judge Graham ordered him to answer intimidating questions at this hearing without warning that his statements could be used against him even though the U.S. Attorney and U.S. Probation offices were represented and present at this hearing. Mr. Mason further complains that Judge Graham improperly and without good cause sent the U.S. Marshals as his own private police force.

      The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling”, frivolous”. and the allegations of the complaint “lack any factual foundation or are conclusively refuted by objective evidence” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U.S.C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3)(4) and 18 (c) this Complaint is DISMISSED. Order No. 05-0012.

      Complaint No. 05-0013

      Complaint filed February 8, 2005
      In addition to the core allegations, this complaint alleges:
      Mr. Graham abused his office by ordering me to come to a “HEARING ON CONDUCT OF PARTIES DURING PROCEEDINGS” on December 4, 2001 on a closed civil case, 99-14027. The case was closed on June 20, 2001.This case was on appeal since June 25, 2001, consequently, Mr. Graham no longer had jurisdiction over the case. Why do I need to a ““NOTICE OF HEARING ON CONDUCT OF PARTIES DURING PROCEEDINGS” on a closed case? Does Mr. Graham get to order me to come to a hearing anytime he gets ready?
      Judge Edmondson’s reply:

      In this complaint Mr. Mason alleges that Judge Graham abused his office by ordering to appear at a hearing on December 4, 2001, when the case in question, No. 99-CV-14027, was closed and on appeal at the time the hearing was scheduled. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED. Order No. 05-0013.

      Complaint No. 05-0020

      Complaint filed February 16, 2005
      This complaint alleges:
      Judge illegally blocked Mason’s access to the courts by improperly denying motions to proceed without payment, in forma pauperis, on 18 different occasions, while refusing to cite a legal or factual reason for doing so as required by law.
      Graham allowed IFP motions to linger for months in violation of S.D.Fla. Local Rule 7.1.B.3 which calls for a hearing on motion in 90 days. (DE #8, 9-18-2001). Plaintiff’s motion was filed on 3/12/01 (DE #2). It took Graham more than six months to create a reason to deny this motion that was not denied until 9-18-2001. See (DE #8, 9-18-2001).
      Graham deliberately stated misleading facts or outright lied in justifying his injunction of September 20, 2001, (DE 878), by using the very unfiled lawsuits that he denied me IFP status to support this patently illegal injunction . For the purpose of justifying the injunction, (DE 878), Mr. Graham counted the following lawsuits as being “filed”: (1)Case No. 00-14202, (2)Case No. 00-14201, (3)Case No. 00-14116, (4)Case No. 01-14074, (5)01-14078, See pgs. 1-2, DE-878, URL: http://mmason.freeshell.org/DE-878/de878.pdf. Mr. Graham states, “Marcellus M. Mason (“Mason”) has filed eleven (11)cases and/or counterclaims in this District…” According to Mr. Graham’s own definition of “filing”, “A complaint is not considered filed until the filing fee is paid.” See (DE -10) Case No. 00-14201. See also (DE -10) Case No. 00-14202. No filing fee was paid in either of the above cases because Graham arbitrarily denied me the benefit of the in forma pauperis statutes. Using Graham’s own definition there were only 11 minus 5 or 6 lawsuits “filed.” Case No. 00-14240 which Graham also counts was actually filed by Highlands County, not me. Now Graham has only 5 lawsuits filed. Case No. 01-14230 was filed in state court and removed to the S.D. Fla. by Highlands County after Graham crafted the injunction where they knew the case would be assigned to Graham. See Notice of Removal, URL: http://geocities.com/mcneilmason/secret/01-14230/NoticeOfRemoval.pdf. Graham now has only four lawsuits that I filed, not the 11 he concocted. See Litigation Summary, URL:http://mmason.freeshell.org/LitigationSummary.doc . The four remaining lawsuits Case Numbers 99-14042, 99-14257, 99-14314 were consolidated with Case number 99-14027.

      Judge Edmondson’s reply:

      In this complaint Mr. Mason, although worded differently that his previous complaints, re-makes the allegation that Judge Graham denied him access to the courts by summarily denying a string of motions for in forma pauperis and that Judge Graham did not identify either of the only two reasons allowed for such denial. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.

      Order No. 05-0021. Complaint No. 05-0021

      Complaint filed February 19, 2005
      This complaint alleges:
      Mr. Graham should have disqualified himself long before any motion for attorney’s fees had been presented. “Disqualification is mandatory for conduct that calls a judge’s impartiality into question.” U.S. v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001). As this Complaint and previous complaints clearly demonstrate Judge Graham should have disqualified himself because he: (1)he intentionally misrepresented the law; (2)refused to rule on a motion for a preliminary injunction for more than 16 months;(3)usurped legal authority by requiring me to seek the permission of a private law firm to communicate with my government;(4)allowed scores of motions to go undecided; (5)concocted a “pre-filing” injunction;(5)lied on a Civil Justice Act Report;(6)See Section 372(c) complaints docketed under Case Nos. 05-0008, 05-0011, 05-0012, 05-0013, and a complaint dated Wednesday, February 16, 2005 for more reasons Graham should have disqualified. Mr. Graham and his Magistrate awarded the Defendants, Highlands County, a whopping award of $200,000 that he admitted in writing had nothing to do with the law or the “merits”. Mr. Graham even lied in order to award the defendants $200,000 in attorney’s fees. These allegations are fully supported by the following RECORD facts. See (DE #882), URL: http://mmason.freeshell.org/DE-882/de882.pdf . (DE 891), URL: http://mmason.freeshell.org/DE-891/de891.pdf . Judge Graham intentionally lied in order to award attorney’s fees of $200,000. Mr. Graham admitted that he knew the law and was not going to follow it with respect to the awards of attorney’s fees. At page 3 of the Report and Recommendation, Graham and his Magistrate admit that Christiansburg Garment Company v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978) is the standard for awarding attorney’s fees. Mr. Graham and his Magistrate admit that I had no chance of paying $200,000 in attorney’s fees but awarded it to the defendants anyway. After awarding the Defendants $200, 000 in attorney’s fees against me, Mr. Graham then decided to deny me in forma pauperis status to appeal this travesty. Moreover, Mr. Graham refused to offer any lawful reason for denying me IFP status. See (DE #906), URL: http://mmason.freeshell.org/DE-906/de906.pdf . I prevailed on a summary judgment in a lawsuit filed against me by Highlands County and Mr. Graham refused to award me costs of less than $200.00. See (DE #27), URL: http://mmason.freeshell.org/00-14240/de27.pdf ; (DE #33), URL: http://mmason.freeshell.org/00-14240/Doc33/de33.pdf ; (DE #35), URL: http://mmason.freeshell.org/00-14240/Doc35/1.jpg . Judge Edmondson’s reply:

      In this complaint Mr. Mason repeats allegations, filed in previous complaints, that Judge Graham should have recused himself, that Judge Graham refused to rule on several motions, and that Judge Graham required him to seek permission from a private law firm to communicate with his government. The only new allegation in this complaint concerns the attorney fees awarded by Judge Graham to the defendants in the amount of $200,000. Mr. Mason claims Judge Graham lied in order to grant the fees. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.

      Order No. 05-0021.

      What makes this order particularly offensive is that both Judge Graham, for no stated reason, and the Eleventh Circuit, both denied Mason the opportunity to appeal the $200, 000 judgment. The Eleventh Circuit claimed the appeal of the $200,000 attorney’s fees was frivolous without providing a scintilla of evidence to support its mere fortuitous and self-serving conclusion.
      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.
      EVEN MORE INCREDIBLE IS THE FACT THAT THE ELEVENTH CIRCUIT REFUSES TO REVIEW THIS SUA SPONTE ISSUED PRE-FILING INJUNCTION FOR VALIDITY. SEE mmason.freeshell.org/SuaSponte.htm#AppellateHistory.

  • When Does Judge Graham become Accountable?


    Judge Edmondson’s Attack on the Complainant

    On May 2, 2005, Circuit Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeal stated:

    Of the eight complaints not specifically naming Judge Graham as the complained–of judge, five name judges of this Court who served on panels reviewing Mr. Mason’s appeals — panels that affirmed decisions and rulings by Judge Graham. None of Mr. Mason’s judicial complaints have prevailed. All of the complaints that have been resolved to date have been dismissed for some or all of the following reasons: the complaints were (1) plainly untrue; (2) frivolous; (3) successive; (4) conclusively refuted by objective evidence; (5) lacking in factual foundation; (5) lacking in evidence sufficient to raise an inference that misconduct had occurred; or (6) directly related to the merits of a decision or procedural ruling…Eight of Mr. Mason’s twenty-one judicial complaints are still pending before this Court: Complaint numbers 05-0011, 05-0012, 05-0013, 05-0020, 05-0021, 05- 0022, 05-0023, and 05-0036. Six of those complaints name Judge Graham while the other two name judges of this Court who served on panels that affirmed decisions or rulings issued by Judge Graham. Four of the complaints are, on their face, successive. Accordingly, determination of those eight complaints will be held in abeyance pending the resolution of this Show Cause Order

    See Show Cause Order.

    The Perfect Scam

    IMPORTANT BACKGROUND AND CONCURRENT FACTS

    In order to fully understand the lengths that Judge Edmondson and his cohorts at the Eleventh Circuit are willing to go through to conceal the acts of misfeasance, malfeasance, nonfeasance committed by Judge Donald L. Graham, one must read the opinions in the direct appeal, Case
    No. 01-13664
    and mandamus petition, Case No. 01-15754 (“The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.)in conjunction with the complaints listed below. The Eleventh Circuit does not deny the allegations it simply ignores them. In the direct appeal, the Eleventh Circuit acknowledges that it was briefed on the issue that Judge Graham should have disqualified because of the alleged misconduct, however, it refuses to discuss this issue on appeal (“Mason also raises issues that relate to non-sanction matters, … the denial of his motions to disqualify the district court and magistrate judges,“). Similarly, it refuses to discuss this issue in mandamus petition.

    The Eleventh Circuit and Judge Edmondson employed a perfect strategy to conceal these allegations of misconduct. The direct appeal and mandamus orders are non-published. Neither of these opinions have ever been available in the Court’s database or released. Couple this fact, with the fact that the Judicial Misconduct Complaints are kept confidential no one would ever know save this website.

    It is noteworthy and quite revealing that upon reading the complaints and Judge Edmondson’s replies that he does not deny, because he can not, any of the allegations set forth in any of the complaints below.

    The point of the foregoing is that Judge Edmondson and his cohorts knew full well that when these complaints were lodged that the Eleventh Circuit had already refused to address these allegations in the appellate process. Consequently, there is no remedy for these acts of misconduct and abuse.


    Complaint #01-0054

    This complaint raised the following allegations:

    Complaint No. 01-0054. On November 7, 2001, former Chief Judge R. Lanier Anderson, without denying the truth of the allegations, stated:

    Marcellus M. Mason. Jr. filed this complaint against United States District Judge Donald L. Graham, pursuant to Title 28 U.S.C. § 372(c) and Addendum Three to the Rules of the Judicial Council of the Eleventh Circuit. The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling” and/or ‘Action on the complaint is no longer necessary because of intervening events, and intervening events”. Consequently, pursuant to 28 U.S.C. § 372(c)(3)(A) and (3)(B) and Addendum Three Rule 4 (a)(2), this Complaint is DISMISSED.

    On March 5, 2002, the Judicial Council declined to do a review. See Order.


    Case No. 01-0068

    Complaint No. 01-0068

    Complaint filed on November 27, 2001