Posts Tagged ‘fiat’

Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts

April 14, 2008

Judge Donald L. Graham

Preface

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

“”Thumbing your nose at the U.S. Supreme Court is almost unheard of in the judicial system,” said Kary Moss, ACLU of Michigan Executive Director.” U.S. District Judge Donald L. Graham denied an indigent, Marcellus Mason, access to the courts no less than 18 times for no apparent reason by denying in forma pauperis motions. See IFP Mockery. The Supreme Court has said that an in forma pauperis application may only be denied if the allegation of poverty is untrue or if the lawsuit is frivolous. Judge Graham failed to cite any reason for these denials. These denials represent an apparent snub and disdain for the United States Supreme Court and the Congress. If Judge Graham won’t respect the law and the United States Supreme Court then who should?

Definition of In Forma Pauperis

In forma pauperis (IFP) is a legal term derived from the Latin
phrase in the character or manner of a pauper. In the United States, the IFP designation is given by both state and federal courts to someone who is without the funds to pursue the normal costs of a lawsuit or a criminal defense. The status is usually granted by a judge without a hearing, and entitles the person to a waiver of normal costs, and sometimes in criminal cases the appointment of counsel. URL: http://en.wikipedia.org/wiki/In_forma_pauperis.


The United States Supreme Court

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

Examples Of Judge Graham’s Arbitrary Denials and Arrogance

(D.E. 9, Case No. 00-14201-CIV-GRAHAM/LYNCH)

THIS CAUSE came before the Court upon Plaintiff’s Motion to proceed in forma pauperis (D.E. #2). UPON CONSIDERATION of the motion and the pertinent portions of the record, it is ORDERED AND ADJUDGED that Plaintiff’s Motion be, and the same is hereby, DENIED.

(D.E. 877, Case No. 99-14027-CIV-GRAHAM/LYNCH) (This order denied three motions to proceed IFP, (DE #796, #799,& #811)

THIS CAUSE came before the Court upon Plaintiff’s Motion for Permission to Appeal in forma pauperis and Affidavit (D.E. #899). THE COURT having considered the motion, the pertinent portions of the record and being otherwise fully advised in the premises, it is, ORDERED AND ADJUDGED that Plaintiff’s Motion is DENIED.

These statements are the only explanations Judge Graham has offered for these denials. As a matter of fact, Judge Graham has 16 more denials like this where he arbitrarily denied Marcellus Mason in forma pauperis. If Judge Graham won’t respect the law and the United States Supreme Court then who should?

Judge Graham Admits He Knows the Law And Expressly Rejects the U.S. Supreme Court

It appears that Judge Graham has the power to create, by apparent fiat, his own rules and laws when he sees fit with respect to in forma pauperis applications. Quoting Herrick v. Collins, 914 F.2d 228 (11th Cir. 1990), a case cited by Judge Graham to Mason on least two occasions, see 00-14202,(DE #10, dtd. 11-2-2000); 00-14201, (DE #10, dtd. 11-21-2000), 28 U.S.C. § 1915 (1988) states in pertinent part:


(d) The court may . . . dismiss the case if . . . satisfied that the action is frivolous or
malicious
.

On September 7, 2002, Judge Graham was presented with a “MOTION TO PROCEED IN FORMA PAUPERIS AND SUPPORTING AFFIDAVIT, PLAINTIFF’S MOTION TO DISQUALIFY, PLAINTIFF’S DEMAND TO RESCIND INJUNCTION FORTHWITH, AND PLAINTIFF’S MOTION FOR PUBLICATION”. See Docket Entry No. 914, pdf (1.8 meg, very large), or Microsoft Word 97 Doc.(1.89K, small). This motion specifically informs Judge Graham of the U.S. Supreme Court’s legal requirements with respect to in forma pauperis.

According to the rules and case law authority promulgated by the Supreme Court of the United States and the Congress of the United States, the elected representatives of the people, “§ 1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). See also Denton v. Hernandez, 504 U.S. 25, 27 (1992).” This Court has denied Mason’s in forma pauperis applications on eleven occasions for no stated reason at all, see below. “While a trial court has broad discretion in denying an application to proceed in forma pauperis under 28 U.S.C.A. § 1915, it must not act arbitrarily and it may not deny the application on erroneous grounds.” Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir. 1983) . See also Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 (5th Cir.1975)(“[I]n denying such applications [in forma pauperis]a court must not act arbitrarily. Nor may it deny the application on erroneous grounds.). On two occasions this Court has denied Mason’s in forma pauperis applications for nebulous, unintelligible, and indeterminate reasons, see below. On four different occasions this has created a “pending litigation and previous denial reason,” see below. In order to deny an in forma pauperis application, a specific procedure must be followed, assuming this Court intends to follow the law. “If the district court grants the motion, the party may proceed on appeal without prepaying or giving security for fees and costs. If the district court denies the motion, it must state its reasons in writing.” FRAP 24(a)(2). Liles v. South Carolina Dept. Of Corrections, 414 F.2d 612 (4th Cir. 1969)(citing 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)(“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 Docket No. 914.

When Judge Graham read this motion his only reply with respect to the motion to proceed on appeal in forma pauperis and the Supreme Court’s edict was:

ORDERED AND ADJUDGED that Plaintiff’s Motion to Proceed In Forma Pauperis, Plaintiff’s Motion to Disqualify, Plaintiff’s Demand to Rescind Inunction and Plaintiff’s Motion for Publication (D.E. #914) is DENIED.

See Docket No. 928.
Consequently, it is clear that Judge Graham’s knows the rules with respect to granting in forma pauperis.

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