US Circuit Judge Ed Carnes Undermines U.S. Supreme Court By Imposing Hobson’s Choice

Judge Donald L. Graham, “Teflon Don”

A United States Circuit Judge on the Potential Dangers of Unpublished Opinions

It was U.S. Circuit Judge Richard S. Arnold, 8^th 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for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser.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law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug.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 UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas – Little Rock School of Law ; Richard S. Arnold.Judge Arnold, now deceased,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 v. United States, 223 F.3d 898 (8th Cir. 2000), Judge Arnold and his panel declared unpublished opinions to be unconstitutional.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.

Purpose of this Post

This post will take an Opinion of Judge Ed Carnes and demonstrate that he nefariously contorted the law and facts in order to achieve the desired outcome. The desired outcome was a vindication of Judge Donald L. Graham by any means necessary. Judge Carnes ruled that a Magistrate’s designation of his own order is controlling on an U.S. Circuit Court of Appeal. The purpose of this post is to:

• To establish the opinion in this post as a part of an overall pattern and practice of lawlessness.
• To set forth facts to prove that there is two bodies of law. The “rule of law” as set forth in published opinions and a secret underground body of law set forth in unpublished opinions that have little or nothing to do with the “rule of law”.
• To show that a Circuit Court Judge will contort the law beyond common sense and even to absurdity in order to achieve the desired outcome.
• To show the extreme measures federal judges will employ to protect each other.
• To show how pervasive dishonesty is among the federal judiciary.
• To help make the argument that “judicial independence” equals judicial non-accountability.
• To show how a judge can fit the “facts” and the law 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.
• To show that a United States Circuit Judge can take the enactments of the U.S. Congress and the decisions of United States Supreme Court and reduce them mere meaningless pieces of paper.

Preliminary Injunctions or Orders at Issue

On June 13, 2000, Maria Sorolis, Allen, Norton & Blue, attorney for Highlands County Board of County Commissioners and Heartland Library Cooperative, filed a motion entitled “DEFENDANTS’ MOTION FOR PRELIMINARY INJUNCTION“. See Docket Entry 199. This motion expressly states the following:

• “undersigned counsel and each of them hereby moves the Court for an Injunction prohibiting the Plaintiff, Marcellus Mason, from contacting directly,’ via correspondence, electronic mail, telephonically, or otherwise, any supervisor or employee of any of the Defendants in the above-styled litigation.”
• “WHEREFORE, Defendants move the Court for an injunction prohibiting Plaintiff from contacting any of the Defendants and/or their supervisory employees,..”

This motion was quickly granted on June 19, 2000. it took the Magistrate just six days or less if mail time is included to grant this motion. On June 19, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

[I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…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.“

See Docket Entry No. 201. Incidentally, this order clearly violates Mason’s rights to respond to a motion under Local Rule 7.1.C which states: “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.”

On July 6, 2000, Maria Sorolis filed a motion entitled “DEFENDANTS’ RENEWED MOTION FOR PRELIMINARY INJUNCTION.” See Docket Entry No. 231. Moreover, the motion specifically asks for the following:

• “Highlands County Board of County Commissioners, Heartland Library Cooperative, Fred Carino, and Mary Myers, by and through their undersigned counsel, and regrettably renew their Motion to the Court for entry of a Preliminary Injunction against the Plaintiff in this matter, “”
• “WHEREFORE, Defendants respectfully renew their Motion for a Preliminary Injunction prohibiting the Plaintiff from contacting the supervisory employees of the Defendants or the individual Defendants directly, and directing Plaintiff to make all public records requests through the undersigned counsel”

On July 25, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

ORDERED AND ADJUDGED that Defendants’ Renewed Motion for Preliminary Injunction is GRANTED… Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.”

See Docket Entry No. 246. Incidentally, at least three courts have found similar injunctions to be unconstitutional. see Lewis v. S. S. Baune, 534 F.2d 1115 (5th Cir. 1976)(reversing an order which prohibited appellant from “discussing, directly or indirectly, settlement . . . with the plaintiffs” and from “contacting, communicating, or in any way interfering with the attorney-client relationship” as “too sweeping a restraint”); Bernard v. Gulf-Oil Co., 619 F.2d 459, 466 (5th Cir. 1980) (en banc), aff’d, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981),( explicitly held that requiring the litigant to meet the Court’s “post-communication filing requirements” of constitutionally protected communication was unconstitutional.). Additionally, in Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) the court held that an order which 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.

Hobson’s Choice

Merriam-Webster has defined a hobson’s choice as:
1 : an apparently free choice when there is no real alternative
2 : the necessity of accepting one of two or more equally objectionable alternatives

On April 26, 2001, Judge Ed Carnes asserted:

“With regard to his requests for relief from the order granting the defendants motions for preliminary injunction, which the court construed as a preliminary discovery motion, Mason has an alternative remedy. He may either comply with the district courts discovery order and challenge it on appeal from the final judgment. or refuse to comply with the order and challenge its validity if cited for contempt. See Rouse Constr. Int’l. Inc. v. Rouse Censtr. Corp., 680 F.2d 743, 745 (11th Cir. 1982).“

This is a classical hobson’s choice as Judge Ed Carnes presented Mason with two equally objectionable alternatives:

• Lose his First Amendment right to petition the government directly during the pendency of the lawsuit; or
• Fail to comply with a court order and risk contempt and a dismissal of an employment discrimination lawsuit.

Judge Carnes view of the law, according to Judge Carnes own previously and subsequently opinions for which he was panel member, is incorrect and not sustainable under the “rule of law”. The orders in question are reviewable immediately for three reasons:

• The orders are both de facto and de jure injunctions.
• The orders have the “practical effect” of being injunctions. The U.S. Supreme Court has stated that orders have the “practical effect” of being injunctions are immediately reviewable.
• The orders, notwithstanding any label, cause irreparable harm according to the United States Supreme Court and Judge Carnes own writings.

Constitutional Right to Petition the Government

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” First Amendment, US Constitution.

Right To Interlocutory Appeal

28 U.S.C.§ 1292(a)(1) states:

(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;

“Certain orders that are not final in the sense of ending the litigation on the merits are immediately appealable under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). To come within this doctrine, an order “must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” CORPORATE RISK MANAGEMENT CORPORATION v. SOLOMON, 936 F.2d 572 (6th Cir. 1991). It is difficult to imagine how you can get back First Amendment rights once you have lost them at the end of trial whose date is indeterminate.

With respect 1292(a)(1), the Eleventh Circuit has “construed the statute narrowly to ensure that appeal as of right under Sec. 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of “permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.” Baltimore Contractors, Inc. v. Bodinger, [348 U.S. 176,] 181, 75 S.Ct. [249,] 252[, 99 L.Ed.2d 233 (1955) ]. Unless a litigant can show that an interlocutory order of the district court might have a “serious, perhaps irreparable, consequence,” and that the order can be “effectually challenged” only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal.”CABLE HOLDINGS OF BATTLEFIELD, INC. v. COOKE, 764 F.2d 1466 (11th Cir. 1985).

Absurdity

Judge Carnes’ opinion evinces absurdity and is contrary to law. Inherent in Judge Carnes opinion is the inane notion that a United States Circuit Court of Appeal is bound by a Magistrate’s designation of a “discovery order” and may not review the substance of that order to determine for itself if the “discovery order” is in fact an injunction. If this true, then a Magistrate can issue an injunction and escape appellate review by simply calling an injunction something other than an injunction. “[T]the name which the judge gives the order is not determinative”. Geneva Assur. v. Medical Emergency Services, 964 F.2d 599 (7th Cir. 1992). Judge Carnes was a member of the appellate panel that concluded that “where the order has the effect of a preliminary injunction this court has jurisdiction to review the order and is not bound by the district court’s designation of the order.” See Cuban American Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995). More importantly, In Sampson v. Murray, 415 U.S. 61 (1974) the Supreme Court expressly rejected this line of contorted reasoning:

“A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over tie parties in all injunctive proceeding.”

Irreparable Harm

“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). Judge Marcus himself, in a published decision, has stated: “Regarding irreparable injury, it is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” KH OUTDOOR, LLC v. TRUSSVILLE, CITY OF, 458 F.3d 1261; 2006 U.S. App. LEXIS 19901; 19 Fla. L. Weekly Fed. C 902 (11th Cir. 2006)(citing Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976) (plurality opinion)).

“An order has the practical effect of granting injunctive relief within the meaning of section 1292(a)(1) if it is directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint,(internal citations and quotations omitted), and if the appealing party demonstrates serious, perhaps irreparable, consequences”. HBE LEASING CORPORATION v. FRANK,48 F.3d 623 (2nd Cir. 1994). Using Judge Carnes own words, above, the orders would possibly subject Mason to contempt of court charges, “challenge its validity if cited for contempt.”

According to the Supreme Court, an order that has practical effect of denying or granting an injunction iis immediately appealable if a “litigant can show that an interlocutory order of the district court might have a “serious, perhaps irreparable, consequence,” and that the order can be “effectually challenged” only by immediate appeal,…”Carson v. American Brands, Inc., 450 U.S. 79 (1981).

The Ultimate Act of Dishonesty

The ultimate act of dishonesty was that Judge Graham dismissed a lawsuit based upon alleged violations of the injunctions enumerated above and the Eleventh Circuit refused to review these orders for validity. Highlands County asked and got Judge Graham to dismiss a lawsuit because of alleged violations of these orders, which Mason contended on appeal, were illegal. To further illustrate the exreme measures deployed to vindicate Judge Graham personally and more dishonesty see how the Eleventh Circuit was willing to discuss Mason’s alleged violations of these orders while steadfastly refusing to review these very orders for validity, see posts, “Eleventh Circuit Case No. 01-13664: The Appeal From Hell” and “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“). Highlands County filed two motions for sanctions in the form of dismissal of the plaintiff’s lawsuit. Docket Entry Nos. 511 and 646. These motions depicted out of court communications between Highlands County and the Plaintiff, Marcellus Mason. Judge Graham and his Magistrate granted these motions and dismissed the case on June 20, 2001. See Docket Entry Nos. 766 an and 791. The following alleged out of court lawful communications were used to dismiss the lawsuit.

(D.E. 511, ¶6, PG.3)

On February 13, 2001, Plaintiff appeared at Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation.

D.E. 511, ¶7, PG.3)

On February 14, 2001, Plaintiff returned to Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation. This request was made directly to Mr. Canno’s office and not through Defendant Highlands County ’s counsel.

D.E. 511, ¶8, PG.4)

After reviewing the, records, Mr. Mason penned a note to Mr. Carino stating that he wanted unredacted portions of billing records and if he did not get them he will file a lawsuit by February 16, 2001

D.E. 511, ¶9, PG.4).

(D.E. 646, ¶10, PG.3)

Clearly, Plaintiffs “no trespass” and tortious interference claims were an integral part of Plaintiffs present litigation, and involve the same set of facts that Plaintiff continues to rely on in pursuing his present claims. Indeed, Plaintiff’s Fourth Amended Complaint alleged several causes of action based on the issuance of the “no trespass” warnings against Plaintiff. Although Plaintiff’s “no trespass” claims were ultimately dismissed by the Court (D.E.’s #435; 466), Plaintiff has recently indicated his intent to appeal the Court’s dismissal of all claims in his Fourth Amended Complaint. (Exhibit 2). Consequently, the issuance of the “no trespass” warnings against Plaintiff are still part of this present litigation.

(D.E. 646, ¶11, PG.4)

In addition, Plaintiff’s communications regarding Defendants’ counsel’s Eleventh Circuit “track record” clearly have no relevance to his state court claim(s), and pertain only to his federal litigation.

(D.E. 646, ¶12, PG.4)

FEDERAL JUDGE VIOLATES FIRST AMENDMENT, TENTH AMENDMENT RECEIVES ABSOLUTE IMMUNITY

Judge Donald L. Graham, “Teflon Don”

Purpose of This Post

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

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

ELEVENTH CIRCUIT’S OPINION

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

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

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

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

What Judge Graham Was Sued For

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

Plaintiff shall be prohibited from contacting any of the Defendants,including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

(DE #201). This order is dated June 19,
2000.

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.

(DE #246).

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case..

(DE #246). See Complaint, Pg. 16, ¶150.

The lawsuit, Case No. 02-14049-CV-KMM, Eleventh Circuit Case No. 02-13418, asserted claims under 42 U.S.C. §§1983,1985,1986 for issuing the above orders in Case No. 99-14027-CV-Graham/Lynch. See Complaint, Pg. 16, ¶150. The legality or illegality of these injunctions are central to the lawsuit. According to the Fifth Circuit, U.S. Court of Appeal, Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) an order that an order enjoined a litigant “from communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, its staff, or TES’s counsel, counsel’s employees, or counsel’s staff” constituted an invalid prior restraint and a unconstitutional limitation on free speech. In this case the order went even further as it attempted prohibit direct communication with the government and to place restrictions how Mason accessed Public Records under Florida Law.

A United States Circuit Judge on the Dangers of Unpublished Opinions

It was Circuit Judge Richard S. Arnold, 8^th Cir. U.S. Court of Appeal who said:

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

Judge Arnold, now deceased, cannot be resting comfortably. In Anastasoff. v. United States, 223 F.3d 898 (8th Cir. 2000), Judge Arnold and his panel declared unpublished opinions to be unconstitutional. This opinion was subsequently vacated on other grounds, 235 F.3d 1054 (8th Cir. 2000) by en banc court.

Links To Briefs and Opinions

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

SHORT CASE SUMMARY

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

Plaintiff shall be prohibited from contacting any of the Defendants,including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

(DE #201). This order is dated June 19,
2000.

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.

(DE #246).

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case..

(DE #246).

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

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

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

PREEMINENCE OF FLORIDA SUPREME COURT INTERPRETING FLORIDA LAW

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

ABSOLUTE IMMUNITY

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

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

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

The Acts Were Legislative Not Judicial

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

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

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

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

Henderson v. State, 745 So.2d 319 (Fla. 1999). Florida Courts have repeatedly hat the Federal Rules of Civil procedure or any court rules have do not affect a person’s right under Florida Public Records law. See B.B. v. Dep., Children & Family Serv., 731 So.2d 30, 34 n.4 (Fla.App. 4 Dist. 1999)(“Section 119.01 is not intended to expand or contracts rights under court procedural rules.”); Wait v. Florida Power & Light Co., 372 So.2d 420, 425 (Fla. 1979)(“[W]e do not equate the acquisition of public documents under chapter 119 with the rights of discovery afforded a litigant by judicially created rules of procedure.”) If the Florida Supreme Court declines to place restrictions on the right of access to Florida’s Public Records, then who in the hell Teflon Don to do so?

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

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

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

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

Clear Absence of Jurisdiction

Lack of Jurisdiction

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

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

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

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

We find no authority to support the argument that Florida Power & Light, by engaging in litigation before a federal forum, has somehow given up its independent statutory rights to review public records under chapter 119. The fact that Florida Power & Light simultaneously engaged in litigation before a federal agency does not in any way prevent its use of chapter 119 to gain access to public documents.

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

“[W]e do not equate the acquisition of public documents under chapter 119 with the rights of discovery afforded a litigant by judicially-created rules of procedure…” Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla. 1979).

Implicit And Explicit Conclusions of Law

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

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

Judicial Misconduct

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

“Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal

Justice Turned On Its Head

Judge Donald L. Graham, “Teflon Don”

It is hard not to conclude that Judge Donald L. Graham is more valued than his colleagues at the Southern District of Florida when Judge Graham “teflon don” is affirmed on appeal while his colleagues at the S.D. Fla. are reversed. This is the second of two posting on this site where this has happened. Judge Daniel T. K. Hurley met a similar fate. See posting this site, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge“. It is difficult to see how such a system advances the notion of equal justice. It would seem that justice is a function not of the “rule of law”, but of whether or not the judge is favored by the appellate courts.

U.S. Dist. Judge Ursula Ungaro-Benages was reversed on appeal by the Eleventh Circuit for failing to make Fed.R.Civ.P. 41(b)’s requisite finding that “lesser sanctions would not suffice” while her colleague U.S. Dist. Judge Donald L. Graham, “Teflon Don”, failed to make the same finding but was affirmed on appeal. In addition to the omission of the requisite finding under Fed.R.Civ.P. 41(b), the Eleventh Circuit had to take the following extreme measures to keep from reversing “Teflon Don”:

• The Eleventh Circuit, though admittedly briefed, failed to review for validity the very orders that were used by Judge Graham to justify dismissal of the case under Fed.R.Civ.P. 41(b). See Documents Nos. 201 and 246. The Eleventh Circuit was quite willing to discuss violations of these orders, but not their validity.
• The Eleventh Circuit explicitly accepted Judge Graham’s thesis that the government, Highlands County Board of County Commissioners had a right not to be communicated with and further that Highlands County Board of Commissioners were prejudiced by lawful communication with it by Mason.
• The Eleventh Circuit, though admittedly briefed, failed to review the issue as to whether or not Judge Graham should have disqualified or not.
• The Eleventh Circuit used two documents that were beyond the scope of appeal to affirm Judge Graham.
• The Eleventh Circuit struck Mason the Appellant/Plaintiff’s brief for arguing an order that it deemed beyond the scope of appeal and then turned around used the very same order to affirm Judge Graham. “Putrid Dishonesty:Beyond the Scope of Appeal”
  For support of these assertions, see “Additional Issues Faced by Judge“, below.

  A US Circuit Judge On the Potential Dangers of Unpublished Opinions

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

  Publication

  The Eleventh Circuit used a published opinion to reverse Judge Ursula Ungaro-Benages, World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995) , Phyllis A. Kravitch,Judge Hatchett, Senior Cir. Judge Clark, while it used a unpublished or non-published opinion to affirm Judge Graham, Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, et.al., Case No. 01-13664, (11th Circuit 2002) , Judge Stanley F. Birch, Jr., Judge Stanley Marcus, and Judge Susan H. Black.

  The Law on Rule 41(b) Dismissals

  The Eleventh Circuit rigidly requires district courts to make findings explaining why lesser sanctions would not suffice. Rhini Cellular, Inc. v. Greenberg, 2006 U.S. App. LEXIS 14266, *15 (11th Cir. 2006). The Eleventh Circuit has consistently vacated and reversed Rule 41(b) dismissals where the district court failed to explicitly make the finding that lesser sanctions would not suffice. See e.g., Turner v. United States, 2006 Fed. Appx. 952 (11th Cir. 2006); Rex v. Monaco Coach, 155 Fed Appx. 485 (11th Cir. 2005); Betty K Agencies, LTD v. M/V Monada, 432 F.3d 1333 (11th Cir. 2006); Ford v. Fogarty Van Lines, 780 F. 2d 1582, 1583 (11th Cir.1986);Tweed v. Florida, 151 Fed. Appx. 856, 857 (11th Cir. 2005).

  The Eleventh Circuit “has clearly stated that because dismissal is considered a drastic sanction, a district court may only implement it, as a last resort, when: (1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanctions would not suffice.” World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995). “A district court has authority under Federal Rules of Civil Procedure 41(b) to dismiss actions for failure to comply with local rules.” id..

  “Although we occasionally have found implicit in an order the conclusion that “lesser sanctions would not suffice’, we have never suggested that the district court need not make that finding, which is essential before a party can be penalized for his attorney’s misconduct.” Mingo v. Sugar Cane Growers Co-op of Florida, 864 F.2d 101, 102 (11th Cir.1989) (citations omitted). This court has only inferred such a finding “where lesser sanctions would have “greatly prejudiced’ defendants.”

  Facts Supporting Rule 41(b) Dismissal

  Judge Graham

  On June 20, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:
  [I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…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.” See Docket Entry No. 201

  On July 25, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

  ORDERED AND ADJUDGED that Defendants’ Renewed Motion for Preliminary Injunction is GRANTED… Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.” See Docket Entry No. 246.

  Highlands County asked and got Judge Graham to dismiss a lawsuit because of alleged violations of these orders, which Mason contended on appeal, were illegal. Highlands County filed two motions for sanctions in the form of dismissal of the plaintiff’s lawsuit. Docket Entry Nos. 511 and 646. These motions depicted out of court communications between Highlands County and the Plaintiff, Marcellus Mason. Judge Graham and his Magistrate granted these motions and dismissed the case on June 20, 2001. See Docket Entry Nos. 766 an and 791.
  The following alleged out of court lawful communications were used to dismiss the lawsuit.

  • “They claimed that, during the week of 5 February 2001, Mason had demanded to view his personnel file from Highlands County’s Human Resource Director Fred Carino, a named defendant in the case.” See Opinion, pg. 4.
  • They stated that, on 13 and 14 February 2001, Mason also appeared at Carino’s office and demanded to view the billing records for Highlands County’s attorney and Highlands County’s liability insurance documents. See Opinion, pgs. 4-5.
  • They attached a copy of an e-mail apparently sent by Mason in which he explained that he would file a criminal complaint against Carino if he was denied any requested documents and expressed his belief that the county had “waived” its rights under the Orders as a result of Carino’s conversations with Mason and letter. See Opinion, pg. 5.
  • On 6 April 2001, Heartland again moved for sanctions in the form of dismissal because Mason had “repeatedly personally contacted [by e-mail] supervisory employees and/or individual Defendants” in the case since the magistrate judge’s 27 March order. See Opinion, pg. 6.

  In this case, the Eleventh Circuit stated:

  “Although the district court did not make an explicit finding that a sanction less than dismissal with prejudice would have sufficed, it is unclear what lesser sanction would have been more appropriate in this situation.”

  There is no mention as to how Highlands County was “greatly prejudiced”, a necessary finding, by lawful out of court communications with it by the Plaintiff Mason. Such a notion would be absurd on its face. In order to make the “implicit finding”, the Eleventh Circuit, used two documents that were beyond the scope of appeal and that Mason did not have a chance to oppose. Moreover these documents should not have been a part of the record as both were produced subsequent to the closing of the case on June 20 2001. The Case was closed on June 20, 2001 and the notice of appeal filed on June 25, 2001. The Eleventh Circuit used two documents that were beyond the scope of appeal to affirm Judge Graham. Docket No. 878, a prefiling injunction, was issued sua sponte, on September 20, 2001. Pgs. 13-14 of the Opinion states:

  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 district court’s implicit finding that a sanction less than dismissal of the action with prejudice would have had no effect.

  Additionally, Docket Entry No. 900, dtd March 22, 2002, is directly referenced “R19-900-7” and used for justification at pg. 12. “R19-900-7” stands for record volume 19, Document no. 900.
  The Eleventh Circuit admitted that the following were at issue on the appeal:

  Mason also raises issues that relate to non-sanction matters,..the denial of his motions to disqualify the district court and magistrate judges, and the merits of his complaint.

  See Opinion, pg. 10.

  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 Opinion, pg. 9.

  Judge Ungaro-Benages

  The case was dismissed because of the following:

  • Plaintiffs violated Federal Rules of Civil Procedure and Local Rule 16.1 by failing to timely file a scheduling report.
  • Plaintiffs failed to effect service of process, and file proof thereof

  In this case, the court declined to evaluate the first prong as to whether or not engaged World Thrust in a clear pattern of delay or willful contempt. The court concluded it need not analyze that prong because the district court, Judge Ursula Ungaro-Benages failed to make a finding that lesser sanctions would not suffice. The Court stated:

  We need not decide, however, whether the conduct of World Thrust’s lawyers was contumacious because the district court failed to make the necessary finding that lesser sanctions would not suffice in this instance, as required in the second prong of the inquiry.

  Additional Issues Faced by Judge

  Judge Graham faced additional issues on appeal which, anyone of which would have required reversal. However, the Eleventh Circuit simply chose to ignore the following issues on appeal:

  • Judge Graham should have disqualified or recused.
  • Judge Graham issued injunctions that were invalid. Violations of these same orders formed the basis of the Fed.R.Civ.R. 41(b) dismissal. These orders prohibited direct communication by the Plaintiff , Mason with the Highlands County Government. For discussion of these orders, see posting “A Federal Magistrate May Issue An Injunction So Long As He Does Not Call it An Injunction“
  • Judge Graham failed to rule on a motion for a preliminary that was pending from November 24, 1999 until the case was closed on June 20, 2001. The opinion does not discuss this issue.
  • Judge Graham mismanaged the case by allowing scores of filings to go undecided.
  • Judge Graham intentionally misrepresented the law. The opinion does not discuss this issue.
  • The Eleventh Circuit used two documents that were beyond the scope of appeal to affirm Judge Graham. The Case was closed on June 20, 2001 and the notice of appeal filed on June 25, 2001. The Eleventh Circuit used two documents that were beyond the scope of appeal to affirm Judge Graham. Docket No. 878, a prefiling injunction, was issued sua sponte, on September 20, 2001. Pgs. 13-14 of the Opinion states:
    

    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 district court’s implicit finding that a sanction less than dismissal of the action with prejudice would have had no effect.

    Additionally, Docket Entry No. 900, dtd March 22, 2002, is directly referenced “R19-900-7” and used for justification at pg. 12. “R19-900-7” stands for record volume 19, document no. 900.
    The Eleventh Circuit admitted that the following were at issue on the appeal:

    Mason also raises issues that relate to non-sanction matters,..the denial of his motions to disqualify the district court and magistrate judges, and the merits of his complaint.

    See Opinion, pg. 10.

    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 Opinion, pg. 9.

A Federal Magistrate May Issue An Injunction So Long As He Does Not Call it An Injunction

Justice Turned On Its Head

Judge Donald L. Graham

Who Are the Defendants?

The Defendants in this matter is the Highlands County Board of County Commissioners and its employees. The Highlands County Board of County Commissioners is a local government and political subdivision within the state of Florida located in Sebring, FL. The king, “teflon don”, Judge Donald L. Graham is located in Miami, FL about 158 miles from Sebring, FL.

Federal Magistrate May Not Issue an Injunction, 28 U.S.C. 636(b)(1)(a)

“(1) Notwithstanding any provision of law to the contrary—
(A) 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 June 20, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:
[I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…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.” See Docket Entry No. 201

On July 25, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

ORDERED AND ADJUDGED that Defendants’ Renewed Motion for Preliminary Injunction is GRANTED… Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.” See Docket Entry No. 246.

Communications Judge Graham Deemed Unlawful

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

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

D.E. 511, ¶6, PG.3).

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

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

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

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

Mere Technicalities

Assuming a federal magistrate may issue an injunction, a mere technical obstacle exists called the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

These orders are classical prior restraints on pure speech. “Prior restraint has traditionally been defined as a “predetermined judicial prohibition restraining specified expression … A prior restraint is generally judicial rather than legislative in origin” Bernard v. Gulf Oil Co., 619 F.2d 459,467 (C.A.5 (Tex.), 1980). “Pure speech is “[t]he communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea… Pure speech is accorded the highest degree of protection under the First Amendment to the U.S. Constitution.” Based on Merriam-Webster’s Dictionary of Law ©2001. The U.S. Supreme Court has said: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 71 (1963). “[T]the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.” Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (C.A.6 (Ohio), 1996). “In its nearly two centuries of existence, the Supreme Court has never upheld a prior restraint on pure speech.” Providence Journal Co., Matter of, 820 F.2d 1342, 1348 (C.A.1 (R.I.), 1986)

Judge Graham’s Opinion

Judge Graham has backed his Magistrate to the hilt and said that these orders are not “clearly erroneous nor contrary to law”.

June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary injunction prohibiting the Plaintiff from contacting any of the Defendants in this action…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. 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 407.

Definition of Injunction

“A prohibitive or preventive injunction commands a person to refrain from doing an act and necessarily operates on unperformed acts and prevents a threatened but nonexistent existent injury.” State of Ala. v. U.S., 304 F.2d 583, 597 (C.A.5 (Ala.), 1962). According to Black’s Law Dictionary, an injunction is a “court order commanding or preventing an action.” Black’s Law Dictionary, pg. 800, 8th Edition, Bryan A. Garner, Editor in Chief, @ 2004 West Publishing Company. The Magistrate’s orders, among other things, commands that “Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.” The Magistrate’s orders prohibits or prevents “contacting any of the government Defendants, including their supervisory employees and/or the individual Defendants…”. Even more compelling support that these orders are really injunctions comes from the Highlands County’s attorneys themselves who specifically entitled their motion as Defendants Motion For Preliminary Injunction. (Doc. 199). Moreover, in their prayer for relief the Defendants requested “an injunction prohibiting Plaintiff from contacting any of the Defendants…” (Doc. 199, pg. 4). “An injunction is a coercive order by a court directing a party to do or refrain from doing something, and applies to future actions.” Ulstein Maritime, Ltd. v. United States, 833 F. 2d 1052, 1055 (1st Cir. 1987). “When a decree commands or prohibits conduct, it is called an injunction.” Gates v. Shinn, 98 F. 3d 463, 468 (9th Cir. 1995); Zetrouer v. Zetrouer, 89 Fla 253 (Fla. 1925)(“A prohibitory, sometimes called preventive, injunction is one that operates to restrain the commission or continuance of an act and to prevent a threatened injury). “The term ‘injunction’ in Rule 65(d) is not to be read narrowly but includes all equitable decrees compelling obedience under the threat of contempt.” Consumers Gas & Oil v. Farmland Indus., 84 F.3d 367, 370 (10th Cir. 1996). See United States v. Santtini, 963 F. 2d 585, 590 (3rd Cir. 1992)(court of appeals not constrained by district courts characterization of its order). “Ordinarily, since an injunction is defined not by its title but by its effect on the litigants, …, it would be assumed that an order that has the practical effect of an injunction is an injunction for the purposes of Sec. 1292(a)(1).” Abernathy v. Southern California Edison, 885 F.2d 525, 529 n.14(C.A.9 (Nev.), 1989). Some well-known cliches might be appropriate at this junction. If it walks like a duck and quacks like a duck, then it is a duck. A rose by any other name is still a rose.

Appellate Oddessy and Gauntlet

These orders have run an incredible odyssey and gauntlet of appellate attacks, however, the Eleventh Circuit has managed to avoid reviewing these orders for validity. See posting this site,”Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“. The Eleventh Circuit has made some incredible rulings and done some amazing things with these orders or injunctions without reviewing them for validity.

• Case No. 01-11305. The Eleventh Circuit denied a mandamus petition or interlocutory appeal to review these orders. For you legal types, a mandamus petition maybe construed as a direct appeal. In Re Bethesda Memorial Hospital Inc., 123 F.3d 1407, 1408 (11thCir. 1997)( ”[P]recedent permits us to treat the petition for the writ of mandamus as a direct appeal..”); Yates v. Mobile County Personnel Bd., 658 F.2d 298 (11th 1981)(“A petition for mandamus filed in this court, however, may also satisfy the notice of appeal requirement, especially when the appellant is proceeding pro se…”). An Interlocutory appeal of an injunction is permitted. See Delta Air Lines v. Air Line Pilots Assoc., 238 F.3d 1300, 1308 (11thCir. 2001)(“ We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1292, which permits appeals from interlocutory orders of district courts ‘granting, continuing, modifying, refusing or dissolving injunctions.’.”). However, the Eleventh Circuit declined to review these orders while stating: “With regard to his requests for relief from the order granting the defendants’ motions for preliminary injunction, which the court construed as preliminary discovery motion, Mason has alternative remedy. He may either comply with the district’s courts discovery order and challenge it on appeal from the final judgment, or refuse to comply with the order and challenge its validity if cited for contempt.” See Order Dated April 26, 2001. Judge Ed Carnes wrote this unpublished opinion. Judge Carnes’s opinion advances the absurd notion that a litigant should wait until the lawsuit is finished in order to get appellate review of orders that violate the First Amendment. However, absurd legal advice notwithstanding, Mason followed this advice and did just what Ed Carnes said. Hence, the direct appeal, Case No. 01-13664-A.
  

  Case No. 01-13664-A

  The panel that sat for this appeal included: Judge Stanley F. Birch, Jr., Judge Stanley Marcus, and Judge Susan Black. The Eleventh Circuit pulled very some very dishonest acts of trickery and chicanery in this unpublished opinion and appeal. One of these acts was stating that Marcellus Mason violated these injunctions and that Judge Graham was justified in dismissing the lawsuit based upon these alleged violations, but the Eleventh Circuit absolutely refused to review these same orders for validity. The appellate review consisted solely of the following acknowledgment: “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 Case No. 01-13664 Opinion, Pg. 9. In this very verbose and prolix opinion, there is no other discussion about the validity of these orders. When told that they had “overlooked” or “forgot” to test the very validity of the orders they claimed that Mason had violated, Judge Stanley F. Birch and the Eleventh Circuit replied: “The petition(s) for rehearing filed by Appellant, Marcellus M. Mason, Jr., is DENIED“. See Order. Perhaps the most egregious act of dishonesty that the Eleventh Circuit pulled in this appeal was that they struck Mason’s brief for arguing against a sua sponte issued prefiling injunction because it was “beyond the scope of appeal”; and when the Eleventh Circuit rendered its opinion, it used the very same sua sponte issued pre-filing injunction or vexatious litigant injunction, that it claimed was “beyond the scope of appeal”to affirm “teflon don”. See “Putrid Dishonesty:Beyond the Scope of Appeal“.

Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge

Judge 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 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.

Point of This Post

U.S. District Judge Donald L. Graham [President George H.W. Bush 1992 nominee] was affirmed or upheld on appeal for the exact same set of facts that his colleague, Judge Daniel T. K. Hurley, at S.D. Fla.[President Bill Clinton 1993 nominee]  was reversed on appeal. In their individual cases, both Judge Graham and Judge Hurley denied in forma pauperis, “IFP”, motions or applications without stating a reason for the denials. Incidentally, Judge Graham has a history of arbitrary denials having done it 18 times to Mason without stating a reason. See Graham’s Arbitrary IFP Denials. The Eleventh Circuit used a published opinion to reverse Judge Hurley while it chose an unpublished opinion to affirm Judge Graham. Wonder How Judge Hurley feels? And yes he knows because the author made a telephone call to Judge Hurley’s chambers and sent both faxes, emails, and US mail to Judge Hurley’s chambers. Other colleagues have met a similar fate. See “Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal, Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata . This author owes a Federal Public Defender an apology who advised him in a trumped up criminal contempt trial: “Those people don’t give a damn about the law-Judge Graham is their golden boy. Get your godamn toothbrush cause they are going to put your ass in jail.” See Framed Web Page. This was the best legal advice this author has ever had.

A US Circuit Judge On the Potential Dangers of Unpublished Opinions

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

Definition of In Forma Pauperis

http://legal-dictionary.thefreedictionary.com/in+forma+pauperis

IN FORMA PAUPERIS. In the character or form of a pauper. In England, in some cases, when a poor person cannot afford to pay the costs of a suit as it proceeds, he is exempted from such payment, having obtained leave to sue in forma pauperis.

Consequences of the Eleventh Circuit’s Decision

• Judge Graham won’t have a reversal in his record in the event of a Senate confirmation hearing while his colleagues will.
• Judge Graham does not cite any facts or law to support his decision.
• Judge Graham’s decision defies and overrules the United States Supreme Court and Congress with impunity.
• Unpublished decisions are used to undermine the rule of law and to achieve the desired objective.

IFP

Marcellus Mason and Evelyn Martinez filled out the same form, or Affidavit, swearing to the following:

“in the above-entitled proceeding; that in support of my request to proceed without prepayment of fees or costs under 28 §USC. 1915 I declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief sought in the complaint/petition/motion.”

See APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND AFFIDAVIT, form AO 240 (Rev. 9/96) (Reverse), Docket No. 2, Mason and Docket Entry No. 1, Case No. 02-80933, Martinez .

U.S. Supreme Court On In Forma Pauperis

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).

Same Facts

Judge Daniel T. K. Hurley

On October 2, 2002, Judge Daniel T. K. Hurley, S.D. Fla., denied an in forma pauperis motion for the following reason:

THIS CAUSE is before the court upon plaintiff’s motion to proceed in forma pauperis. [DE# 1] Having considered the plaintiff’s motion and accompanying affidavit , it is hereby ORDERED AND ADJUDGED as follows:
1. The motion to proceed in forma pauperis is DENIED

See Case No. 02-80933, Docket Entry No. 3. On appeal the case was reported at: Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir., 2004).

Judge Donald L. Graham

On November 2, 2000, Judge Donald L. Graham, S.D. Fla., denied an in forma pauperis motion for the following reason:

THIS CAUSE came before the Court upon Plaintiff’s Motion to Proceed in forma Pauper’s (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.

See Docket Entry No. 9.

Eleventh Circuit Appeals Achieves Two Very Different Outcomes

Judge Hurley Reversed, Eleventh Cir. Case No. No. 02-16019.

Judge Stanley F. Birch, Jr. [President George H.W. Bush 1990 nominee], Judge Phyllis A. Kravitch [President Jimmy Carter 1979 nominee] , U.S. Dist. Judge Jerome Farris [President Jimmy Carter 1979 nominee]

In reversing Judge Hurley, the Eleventh Circuit held:

“The district court denied Martinez’s motion for leave to proceed IFP without explanation…Further, because the district court’s order contained no explanation as to why Martinez’s motion was denied, it is unclear whether the denial was based on her failure to satisfy the poverty requirement or because her complaint was frivolous. Therefore, we vacate the district court’s order and remand with instructions.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir. 2004). See Opinion at Findlaw, Resource.Org, .

Judge Graham Affirmed or Upheld

Judge Gerald Bard Tjoflat [Presidents Nixon and Ford 1970 and 1975 appointee US Dist Judge and US Circuit Judge], Judge Susan H. Black [President Jimmy Carter 1979 nominee Dist Judge, President George H. W. Bush 1992  appointee], Judge Ed Carnes [President George H. W. Bush 1992 nominee, avid death penalty proponent, staunch conservative]

In affirming Judge Graham [Bush 1992  appointee], the Eleventh Circuit held:

“Marcellus Mason appeals from the district court’s order denying his motion to proceed in forma pauperis. In his initial brief, Mason contends that because the trial court provided no explanation in denying his motion, the district court acted arbitrarily and its decision must be reversed. In his reply brief; Mason argues for the first time that he did not follow the district court’s order to pay the filing fee because he could not afford to pay the filing fee…Further, this Court does not address issues raised for the first time in a reply brief.Upon review of the pleadings, and upon consideration of the briefs of the parties, we find no reversible error.AFFIRMED.” See Eleventh Circuit’s Unpublished Opinion, Case No. 00-16512.

Mason begged the Eleventh Circuit to reconsider.

On October 31, Judge Ed Carnes denied a motion for hearing stating only:

“The petition(s) for rehearing filed by Appellant is DENIED.”

See Order Denying Rehearing.

The Appellant/Plaintff’s Briefs: Initial Brief, Reply Brief.
Appellee/Defendants Answer Brief, on brief Maria N. Sorolis, formerly of Allen,Norton & Blue, Tampa, Fla.

Other Disparities

The Eleventh Circuit has similarly affirmed Judge Graham on appeal while excoriating and reversing other Judges in the Southern District and at the Eleventh Circuit. See “Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal, Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata , or Same Facts, Tale of Two Appeals.

Eleventh Circuit Repeatedly Refuses To Review Orders For Validity

Justice Turned On Its Head

Judge Donald L. Graham

PURPOSE OF THIS PAGE

WHAT DO YOU DO WHEN AN APPELLATE COURT REFUSES
TO REVIEW AN ORDER FOR VALIDITY?

The purpose of this page is to set forth documentation to prove that the Eleventh Circuit will take extreme measures to avoid appellate review of orders or injunctions rendered by U.S. Dist. Judge Donald L. Graham and his Magistrate, Frank Lynch, Jr. The unpublished Opinion is deployed to attain the desired result. One of the most offensive acts of dishonesty is that the Eleventh Circuit, in Case No. 01-13664, was quite willing to use the two orders in question against Marcellus Mason while simultaneously refusing to test these orders for validity.

The Eleventh Circuit has refused to review these orders for validity in every conceivable avenue of appellate review. This is part of an overall pattern to conceal the egregious and possible criminal behavior of U.S. Dist. Judge Donald L. Graham. See Core Allegations of Misconduct Page.

A US Circuit Judge On the Potential Dangers of Unpublished Opinions

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

First Amendment

The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

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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.

On September 20, 2001, Judge Graham affirmed his “inherent authority” to prohibit direct communication with the government by a non-lawyer and stated: “including continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants’ employees. Mason, however, ignored the Court’s order and continued to contact the Defendants.” Docket No. 878. Imagine that, a citizen communicating with the government!

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ELEVENTH CIRCUIT REFUSES APPELLATE REVIEW

The following orders, [D.C. Case No. 99-14027-CV-Graham, Doc. (201), Doc. (246)rendered by a Magistrate, are not valid and are violative of the First Amendment, Tenth Amendment, 28 U.S.C. § 636 (b)(1)(A), and fails to meet the legal requirements for a preliminary injunction:

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

(DE #201).
This order is dated June 19, 2000.

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.
(DE #246).

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

(DE #246).
This order is dated July 25, 2000. These orders amount to what is considered the first prior restraint on pure speech in over 200 years and they were issued by a Magistrate Judge when the U.S. Supreme Court has declined to do so. These orders clearly implicate the “Petition Clause” or right to “petition the government for a redress of grievances” of the First Amendment.

Eleventh Circuit Uses Concocted Procedural Arguments to Avoid Appellate Review

The Eleventh Circuit has had a multiplicity of opportunities to review these orders, but has declined to do so. These orders were reviewable under collateral order doctrine and could have been appealed prior to entry of final judgment because these orders resolved issues independent and easily separable from other claims in the prior pending lawsuit. Ortho Pharmaceutical Corp. v. Sona Distributors, 847 F.2d 1512, 1515 (11^thCir. 1988). Following is a list of opportunities, the Eleventh Circuit has to review these orders:

1. 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.
2. Case No 01-15754 Among other things, The Eleventh Circuit, Judge Susan H. Black, Judge Rosemary Barkett, and Judge Stanley Marcus. The Eleventh Circuit, again refuses to address this issue. In fact, the entirety of the opinion is: The Eleventh Circuit “petition for writ of mandamus and petition for writ of prohibition” is DENIED.”
3. Case No. 02-13418. This lawsuit was filed against Judge Graham and his Magistrate, Judge Frank Lynch, Jr., for issuing these orders. In an opinion rendered on Dec. 6, 2002, The Eleventh Circuit, Judge Ed Carnes,Charles R. Wilson, and Phyllis A. Kravitch, again declined to discuss the validity of these orders while asserting in a mere conclusory fashion that the Judges have absolute immunity. In reading the opinion, one can not determine what the judges are immune from.
4. Case No. 01-13664. Mason filed a Appellant’s Renewed Motion For Summary Reversal on or about September 25, 2002. Yet again The Eleventh Circuit refuses to discuss the validity of these orders.
5. Case No. 01-11305. On April 26, 2001, the Eleventh Circuit, Judge Ed Carnes, yet again refused to review the validity of theses orders.“With regard to his requests for relief from the order granting the defendants’ motions for preliminary injunction, which the court construed as preliminary discovery motion, Mason has alternative remedy. He may either comply with the district’s courts discovery order and challenge it on appeal from the final judgment, or refuse to comply with the order and challenge its validity if cited for contempt”. See Mandamus Petition. Was Mason supposed to wait until the end of trial to get his First Amendment rights back? The Eleventh Circuit has answered this question with a resounding no. “[I]t is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” KH Outdoor, LLC v. Trussville, 458 F.3d 1261, 1271-1272 (11th. Cir. 2006); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). The Eleventh Circuit declined to review these orders via interlocutory appeal because they were characterized as “discovery orders” by the district court”. However, it is well established that an appellate court is not bound by a district court’s characterization of its own orders with respect to appellate jurisdiction. United States v. Hylton, 710 F.2d 1106 (5th Cir. 1983). United States v. Jorn, 400 U.S. 470 (1971).

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Judge Graham and Magistrate Refuse to Cite Legal Authority

Judge Graham and his Magistrate have had multiple opportunities to cite legal authority for these orders prohibiting direct communication with the government, but have adamantly refused to do so. It is as if Judge Graham is saying, “You will not communicate with the government directly because I said so, the law and the constitution notwithstanding.” Marcellus Mason submitted several motions asking Judge Graham and his Magistrate where they got the legal authority to issue the above orders, and each time Judge Graham his Magistrate refused.

Docket No. 279	Docket No. 281	Docket No. 407
Docket No. 524	Docket No. 528	Docket No. 634
Docket No. 744	Docket No. 745	Docket No.874 Pg. 2
Docket No. 882	Docket No. 890	Docket No. 928
Docket No. 931

The following is representative of Judge Frank Lynch Jr. and Judge Graham’s responses.

ORDER ON PLAINTIFFS MOTION FOR CLARIFICATION (DE #262)
THIS CAUSE haying come on to be heard upon the aforementioned Motion, and this court having reviewed the Motion and the response, and being otherwise advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion for Clarification is DENIED, it is further ORDERED AND ADJUDGED that Plaintiff shall comply with the terms and provisions of this Court’s Order, filed July 25, 2000, and any violations of the order will result in the imposition of sanctions or dismissal with prejudice as to all plaintiffs claims.

Docket No. 281

The only explanation Mason has received thus far is the negative cite below: If the Plaintiff was represented, his attorney would know that this is proper procedure. .

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BANNED OUT OF COURT DIRECT GOVERNMENT COMMUNICATIONS

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

D.E. 511, ¶6, PG.3)




On February 13, 2001, Plaintiff appeared at Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation.

D.E. 511, ¶7, PG.3)




On February 14, 2001, Plaintiff returned to Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation. This request was made directly to Mr. Canno’s office and not through Defendant Highlands County ’s counsel.

D.E. 511, ¶8, PG.4)




After reviewing the, records, Mr. Mason penned a note to Mr. Carino stating that he wanted unredacted portions of billing records and if he did not get them he will file a lawsuit by February 16, 2001

D.E. 511, ¶9, PG.4)




Mr. Mason returned to Mr. Carino’s office a second time on February 14, 2001 and knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. He demanded to view Defendant Highlands County ’s Insurance Document of Coverage, a document that had previously been produced to him. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel. Notwithstanding, the document was produced to him.

D.E. 511, ¶10, PG.4)




During this visit, Plaintiff became loud, aggressive, disruptive, and questioned the need for Mr. Carino’s presence during his review of the document.

D.E. 511, ¶11, PG.4)




Plaintiffs conduct in violation of this Court’s Orders of June 19, 2000 and July 25, 2000 require a dismissal with prejudice of all of plaintiff’s claims in the above-referenced matter.

D.E. 511, ¶15, PG.5)




Since April 3, 2001 – subsequent to the Court’s March 27th Order – Plaintiff has repeatedly personally contacted supervisory employees and/or the individual Defendants about matters related to this case. Specifically, Plaintiff sent e-mail communications directly to supervisory employees of the Defendants, which discussed the “no trespass warnings” that were issued against Plaintiff, Plaintiffs tortious interference claim, as well as Allen, Norton & Blue’s “track record” of litigating appeals (including Eleventh Circuit appeals). (Exhibit 1).




(D.E. 646, ¶10, PG.3)




Clearly, Plaintiffs “no trespass” and tortious interference claims were an integral part of Plaintiffs present litigation, and involve the same set of facts that Plaintiff continues to rely on in pursuing his present claims. Indeed, Plaintiff’s Fourth Amended Complaint alleged several causes of action based on the issuance of the “no trespass” warnings against Plaintiff. Although Plaintiff’s “no trespass” claims were ultimately dismissed by the Court (D.E.’s #435; 466), Plaintiff has recently indicated his intent to appeal the Court’s dismissal of all claims in his Fourth Amended Complaint. (Exhibit 2). Consequently, the issuance of the “no trespass” warnings against Plaintiff are still part of this present litigation.

(D.E. 646, ¶11, PG.4)




In addition, Plaintiff’s communications regarding Defendants’ counsel’s Eleventh Circuit “track record” clearly have no relevance to his state court claim(s), and pertain only to his federal litigation.

(D.E. 646, ¶12, PG.4)







All of Plaintiff’s claims arise from the same set of facts and are all related, and he should simply not be allowed to continuously disregard Orders of this Court and blatantly challenge the Court’s authority.

(D.E. 646, ¶13, PG.4)




Plaintiff has demonstrated a blatant disregard and disdain for this Court’s authority, as evidenced by Plaintiff’s statement that “ANYBODY, who supports your position. . . is a racist and is part of the problem. I fear no man!!! This includes white men wearing robes” and “I aint afraid of a white men wearing robes of any color.” (Exhibit 1, e-mails dated 4/03/01 at 10:57 a.m. and 4/06/01 at 8:33 a.m. respectively)

(D.E. 646, ¶14, PG.4)

You Don’t have A Right to Have Your Motions Decided

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This article is part of a series and an expose on just how far the Eleventh Circuit, U.S. Court of Appeals will go to conceal the judicial misconduct and miscreant behavior of U.S. Dist. Judge Donald L. Graham. The decisions documented here by the Eleventh Circuit are characterized by extreme dishonesty and are no more than “junk law” that it would not think of publishing. This type of jurisprudence simply cannot be accepted in a free society like the United States of America.

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Judge Donald L. Graham

Does a litigant have a right to his or her motion decided?

According to the Eleventh Circuit, U.S. Court of Appeals and Judge Ed Carnes , a litigant does not have the right to have his motion decided. On April 26, 2001, Judge Ed Carnes opined:

His mandamus petition, however, is frivolous because he has failed to establish that he is entitled to mandamus relief to compel the district court to rule on his motion for preliminary injunction.

See Judge Carnes Opinion.

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Factual Background

On November 24, 1999, Case No. 99-14027-CIV-Graham/Lynch, Judge Donald L. Graham was presented with a motion for a preliminary injunction. See Docket Entry No. 39. The case was ultimately closed on June 20, 2001 and Judge Graham NEVER decided the motion one way or the other. On or about March 8, 2001, Marcellus Mason filed a petition for mandamus, in forma pauperis or without paying court filing fees due to indigence, with the Eleventh Circuit to force Judge Graham to rule on the pending motion for a preliminary injunction. On April 26, 2001, Judge Ed Carnes, 17 months after the motion was submitted, as fully stated above, ruled that Mason does not have the right to have his motion decided.

The Law and the Right to Have Motions Decided

“A Court confronted by a motion authorized by the Rules must decide the motion within a reasonable time…the right of a movant to have a motion decided is so clear that it will be enforced under proper circumstances by mandamus.” US East Telecommunications v. US West Inf. Sys., 15 F.3d 261 (2nd Cir. 1994).

Published Decision Reaches a Different Result

Compare the above and Judge Graham to Judge Duross Fitzpatrick, now deceased, in Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (C.A.11 (Ga.), 1997), a published decision, where the Eleventh Circuit stated : “Failure to consider and rule on significant pretrial motions before issuing dispositive orders can be an abuse of discretion.” Wonder how Judge Duross Fitzpatrick would have felt about this disparity?

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Links to Other Dishonest Tactics Used By the Eleventh Circuit

A Web Portal On Judge Donald L. Graham and the Eleventh Circuit, U.S. Court of Appeals

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