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

Judge Donald L. Graham, “Teflon Don”

Foreword

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

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

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

Judicial Independence

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

The Sua Sponte Issued Pre-Filing Injunction

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

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

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

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Case No. 01-13664-A, Direct Appeal

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

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

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

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

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

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

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Case No, 01-15754, Mandamus

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

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

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

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

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

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Rehearing Denied

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

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

Rehearing Denied

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

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Case No. 01-16218

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

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

See Opinion Case No. 01-16218.

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Case No. 02-11476-A

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

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

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

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Case No. 02-14646, Mandamus

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

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

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Case No. 04-11894, Mandamus

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

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

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

At page 3, the Court asserts:

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

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

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Case No. 05-10623-I, Mandamus

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

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

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

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

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

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

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

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

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

Right of Access To Courts is Constitutionally Protected

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

Case Law On Pre-Filing Injunctions

US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED “SUA SPONTE” PRE-FILING INJUNCTIONS.

A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Smith v. United States, 2010U.S. App. LEXIS 14050,*;386 Fed. Appx. 853 (11th Cir. 2010) , the
Eleventh Circuit held:

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

It is remarkable that the Eleventh Circuit, sua sponte, or on its own motion, initiated Federal Rule of Civil Procedure 60(b)(4) to reverse Judge Maurice Mitchell Paul.  Also, in Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11^th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. U.S. v. Powerstein, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006)(litigant entitled to notice and an opportunity to be heard before the court imposed the injunctive order ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1^st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2^nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2^nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2^nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3^rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3^rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4^th Cir. 2006)(vacated a 10 yr. old sua sponte injunction);Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 ^th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.”) ;De Long v. Hennessey, 912 F.2d 1144 (9^th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10^th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court’s order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given);Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”).

Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4^th Cir. 2005);Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987). The United States Supreme Court has stated: A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees. (emphasis added) Chambers v.Nasco, Inc.,501U.S. 32, 50 (1991).

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Pre-filing Restrictions

1. Plaintiff Marcellus M. Mason is Permanently enjoined

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

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

See Docket Entry No. 878.

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 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)