Posts Tagged ‘permission’

Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal!

May 28, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Point of This Post

The Purpose of this post is to set forth yet another extreme measure that the Eleventh Circuit deployed in order to conceal and shield U.S. Dist. Judge Donald L. Graham from public rebuke and scrutiny. The law clerks or staff attorneys who decide cases at the Eleventh Circuit, U.S. Court of Appeals are making a joke and a mockery of our legal system. This posting discusses a single element of the Eleventh Circuit’s, U. S. Court Appeal Case No. 01-13664-A, an unpublished opinion. This is appeal has been described as: Eleventh Circuit Case No. 01-13664: The Appeal From Hell. This appeal, Case No. 01-13664-A, is loaded with the stench of dishonesty and lawlessness; however, this post will only analyze the single issue of jurisdiction of the lower court, trial court, or district court during the appeal. This posting will show that the Eleventh Circuit used an unpublished opinion to get the desired outcome, affirming Judge Graham, notwithstanding the law and the facts. The Eleventh Circuit took for itself the right to maintain two irreconcilable, inconsistent, and illogical legal positions. First it rightly claimed that an order, pre-filing injunction, rendered on September 20, 2001, Doc. 878, or three months after the notice of appeal was filed on June 25, 2001 was beyond the scope of appeal . See post, “Putrid Dishonesty:Beyond the Scope of Appeal“. Secondly, the inconsistency arose when the Eleventh Circuit rendered its opinion in October 2002, it then used the very same pre-filing injunction, rendered on September 20, 2001 that it claimed was beyond the scope of appeal to affirm Judge Graham. The Eleventh Circuit had it both ways. The reason for this inconsistency is that the Eleventh Circuit badly needed this order included in order to make a finding pursuant to Rule 41(b), Federal Rules Civil Procedure.

The icing on the cake and even worse and more dishonest than the taking of two inconsistent legal positions is the fact that the pre-filing injunction, rendered on September 20, 2001, Doc. 878, is actually illegal. At page 3 of the pre-filing injunction of September 20, 2001, Doc. 878, it expressly states: “THIS CAUSE came before the Court sua sponte. ” Sua Sponte issued pre-filing injunctions, or pre-filing injunctions issued without notice and opportunity to respond are routinely rejected as a matter of course. Pre-filing injunctions implicate the right of access to the courts, even Teflon Don recognizes this fact. See pg. 7, Doc. 878, (“This screening requirement best balances the interest in constitutionally mandated access to the federal courts with the need to protect the Court’s jurisdiction and integrity.“). Judge Graham is expressly rejecting the authority of the United States Supreme Court who has said on multiple occasions that the right of access to the courts is constitutionally protected and requires due process before that right is abridged or restrained in any manner.

Recap

The Eleventh Circuit, using the device of an unpublished opinion, did the following:

  1. It declared the sua sponte issued pre-filing injunction of September 20, 2001 beyond the scope of appeal and struck Mason’s appellate brief because of it in March 2002. See post, “Putrid Dishonesty:Beyond the Scope of Appeal“.
  2. On October 16, 2002, when the Eleventh Circuit rendered its unpublished opinion, it then included the sua sponte issued pre-filing injunction of September 20, 2001 in its decision.
  3. The Eleventh Circuit used a clearly invalid sua sponte issued pre-filing injunction to justify its goal of affirming Judge Graham.

A US Circuit Judge On the Potential Dangers of Unpublished Opinions

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

The Opinion

The Eleventh Circuit rendered its opinion in Case No. 01-13664 on October 16, 2002. The Opinion makes the following “finding”:

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.

See Opinion, pgs. 13-14.

This finding is a direct reference to a pre-filing injunction or vexatious litigant injunction rendered by Judge Graham on September 20, 2001. See below.

The Sua Sponte Issued Pre-Filing Injunction

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, 00-14202- 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.

See Doc. 878, pg. 8.

Law On Jurisdiction During Appeal

According to the published decisions of the Eleventh Circuit: “It is the general rule of this Circuit that the filing of a timely and sufficient notice of appeal acts to divest the trial court of jurisdiction over the matters at issue in the appeal, except to the extent that the trial court must act in aid of the appeal.” SHEWCHUN v. United States, 797 F.2d 941 (11th Cir. 1986). “It is well-settled law that the filing of a notice of appeal divests the district court of jurisdiction over a case.” WEAVER v. FLORIDA POWER & LIGHT COMPANY, 172 F.3d 771,(11th Cir. 1999)(citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982)). “The general rule regarding divestiture of jurisdiction, however, does not apply to collateral matters not affecting the questions presented on appeal.” id.

“The district court’s exercise of jurisdiction should not “materially alter the status of the case on appeal.” Mayweathers v. Newland , 258 F.3d 930 (9th Cir. 2001).

Given the above definition, if the sua sponte issued pre-filing injunction, Doc. 878, is involved in the appeal then Judge Graham would not have jurisdiction to enter an order pertaining to “questions presented on appeal”. At pages 13, 14, of the opinion the sua sponte issued pre-filing injunction was clearly involved in the appeal as it used to justify a dismissal of the case under Rule 41(b), Fed.R.Civ.P.; Consequently, Judge Graham was without jurisdiction to render the order. You can’t on the one hand argue that an order, the sua sponte issued pre-filing injunction of September 20, 2001 is a “collateral issue” and beyond the scope of appeal on March 6, 2002, and then turnaround on October 16, 2002 and include the very same sua sponte issued pre-filing injunction of September 20, 2001 to affirm Judge Graham. Incidentally, as documented below the sua sponte issued pre-filing injunction of September 20, 2001 is clearly invalid.

Subsequent Decisions are Equally Dishonest

A petition for mandamus was filed on or about April 19, 2004. On May 20, 2004, the Eleventh Circuit stated:

In Mason’s case, he filed a notice of appeal as to the dismissal of his civil case. The September 20, 2001 order did not relate to the issue on appeal, but instead enjoined Mason from filing any further pleadings in the district court without permission. Because the order related to collateral issues, the district court had jurisdiction to issue it.

How can an issue, the sua sponte issued pre-filing injunction of September 20, 2001, be a “collateral issue” and used in the opinion at the same time? If it is a
“collateral issue” then how it an integral part of the appeal and the opinion at the same time as demonstrated above?
See Opinion Case No. 04-11894. Incredibly, this “opinion” makes the following admission:

This Court granted, in part, the appellees’ motion to strike Mason’s brief, holding that the portions of the brief that related to the September 20, 2001 order were beyond the scope of appeal.

This type of dishonesty simply cannot be tolerated in a free society as it is offensive and insulting.

Quick Facts

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. This was an appeal from a Rule 41(b), Fed.R.Civ.P. dismissal by Judge Graham in district court Case No. 99-14027-CIV-Graham/Lynch. Judge Donald L. Graham, “Teflon Don”, failed to make the explicit finding that “lesser sanctions would not suffice“. Incidentally, Judge Graham’s colleague at the S.D. Fla., failed to make the same finding that “lesser sanctions would not suffice” but was reversed by the Eleventh Circuit. See posting this site, “Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal

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. (For a completely different story 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 Repeatedly Refuses To Review Orders For Validity” and “A Federal Magistrate May Issue An Injunction So Long As He Does Not Call it An Injunction ” 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.

Legal Requirements For a Fed.R.Civ.P. 41(b) Dismissal

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.

——————–SCOPE OF APPEAL LINE JUNE 25, 2001——————————-

—————–BEYOND THE SCOPE OF APPEAL LINE JUNE 26,2001———————–

=====================================================================

Beyond the Scope of Appeal

On September 20, 2001, Judge Graham rendered a pre-filing injunction sua sponte, or own his motion and without notice and opportunity to respond which is a violation of due process. Docket No. 878. The validity of this sua sponte pre-filing injunction is not the point of this posting, however ample case law against its validity is set forth in http://mmason.freeshell.org/SuaSponte.htm#caselaw.

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.“).

Orders Issued Inconsistent With Due Process Are Void

A judgment is void if the rendering court acted in a manner inconsistent with due process of law. Wright & Miller, Federal Practice and Procedure § 2862. “A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.” World-Wide Volkswagen Corp. V. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821). “’No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.” Old Wayne Mut. Life Ass’n v. McDonough, 204 U.S. 8, 15 (1907). Generally, a judgment is void under Rule 60 (b) (4) if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if acted in a manner inconsistent with due process of law. E.g., s Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001); U.S. v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 1990);Beller & Keller v. Tyler, 120 F.3d 21, 23 (2nd Cir. 1997); Union Switch & Signal v. Local 610, 900 F.2d 608, 612 n.1 (3rd Cir. 1990); Eberhardt v. Integrated Design & Const., Inc. 167 F.3d 861, 867 (4th Cir. 1999); New York Life Ins. Co. v. Brown 84 F.3d 137, 143 (5th Cir. 1996)

Supreme Court’s Emphasis on Due Process

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).

Case Law Against

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

Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4th Cir. 2005); Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987).

Advertisements

Judge Graham Uses Act of Cowardice Hides Behind Dresstail of Court Reporter To Intimidate Litigant!

April 21, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham

What this Posting Will Prove

Judge Graham attempted to use intimidation in order to prevent Marcellus Mason from appealing arbitrary denials of Rule 60(b), Fed.R.Civ.P. motions. In order to accomplish this task Judge Graham scheduled a “Status/Motion Hearing” with AUSA Robert Waters and U.S. Probation required to be at a civil hearing. Mason was on probation at the time. However, Judge Graham did not think his hearing was important enough to reduce his ‘rants’ to writing, he opted instead to hide behind the dresstail of a court reporter and have her write some account of the hearing. See Document No. 934. Apparently, Judge Graham does not know, or more likely does not care that: “Even after a judgment has become final and even after an appeal has been lost, Civil Rule 60(b) gives losing parties additional, narrow grounds for vacating the judgment.” GenCorp, Inc. v. Olin Corporation, 477 F.3d 368;2007 U.S. App. LEXIS 3102 (6th Cir., 2007). Moreover, there is no time limit bringing a Rule 60(b)(4) motion. See HERTZ CORP. v. ALAMO RENT-A-CAR, INC., 16 F.3d 1126 (11th Cir. 1994).

Background

In District Case No. 99-14027-CIV-GRAHAM, Marcellus M. Mason, Jr. v. Highlands County Board of County Commissioners, Judge Graham rendered a “vexatious litigant order”, “pre-filing order”, “pre-filing injunction”, “filing injunction”, “leave to file” injunction, sua sponte on September 20, 2001. See Page 3, Docket Entry Number 878, (D.E. # 878) . This document boldly asserts: THIS CAUSE came before the Court sua sponte. Sua Sponte meaning on the courts’ own motion and without a request from any party. It is well settled and black letter law that sua sponte issued pre-filing injunctions rendered without notice and opportunity to respond, “due process”, are clearly void. See Case Law Authority. One of the terms of this clearly void sua sponte issued pre-filing injunction is:

3. Any request for permission to file additional pleadings in the above captioned cases already before the Court 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 requested relief in the proposed pleading, and shall not exceed one page. The application shall not include the proposed pleading.

See Page 9, Docket Entry Number 878, (D.E. # 878). Incidentally, Mason has challenged this clearly void sua sponte issued pre-filing injunction on what has to be a world record number of times; however, the Eleventh Circuit has declined to reach the merits of this sua sponte issued pre-filing injunction by asserting all manner of procedural arguments. See Futile Appellate Review Attempts. 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. For a really egregious example of this dishonesty, see this site page, “Putrid Dishonesty:Beyond the Scope of Appeal“. Judge Graham is truly the “Teflon Don” because none of his misconduct sticks to him. See this site postings “Documented Acts of Misconduct by U.S. Dist. Judge Donald L. Graham” and “Chief Judge J.L. Edmondson Aggressively Defends Judge Donald L. Graham

Alleged violations of this clearly void sua sponte issued pre-filing injunction formed the basis of a criminal contempt information and conviction in this matter. Essentially, Judge Graham and AUSA Robert Waters concocted a crime and framed an innocent man using the enormous power of the U.S. Government. See Framed and Wrongful Conviction. Mason was sentenced to five years probation on this concocted charge and was sentenced to the following special terms in addition to the standard terms of probation:

  • Mental Health counseling.
  • Prohibited from using the Internet. The government and AUSA Robert Waters asked for this term to stop criticism of Judge Graham on the Internet. See this site’s posting, “Power of US Government Used To Suppress Criticism of U.S. Dist. Judge Graham” This term was particularly offensive because Mason made his living off the Internet, being a MCSE and Microsoft Certified Systems Engineer, and CNE, Certified Novell Engineer.

    One Page Request to File Pleading

    On December 16, 2004, pursuant to the terms of the sua sponte issued pre-filing injunction, Mason filed a one page letter seeking permission to file a Fed.R.Civ.P. Rule 60(b)(4) motion to disqualify Judge Graham. See Document No. 932. This one page letter stated that Judge Graham should have disqualified because he had, among other things, lied and intentionally misrepresented the law. On appeal, the Eleventh Circuit had “forgot” or “overlooked” the issue of whether Judge Graham should have disqualified or not. See post this site, “Does A Mere Clause In a Sentence Represent Meaningful Appeal?” Incidentally, when the Eleventh Circuit and Judge Stanley F. Birch, Jr. and in particular, was told on a motion for rehearing that they “overlooked” the issue of whether or not Judge Graham should have disqualified, the Eleventh Circuit simply stated: “The petition(s) for rehearing filed by Appellant, Marcellus M. Mason, Jr., is DENIED“. See Order. On January 9, 2005, Judge Graham issued what he termed a “NOTICE OF HEARING”. See Document No. 933. Judge Graham claimed that it was supposed to be a “Status/Motion Hearing” set for January 14, 2005. Notwithstanding the fact that this was a civil case, Judge Graham ‘invited the following people: Frank Smith, U.S. Probation Office, Lynn Waxman, Appellate Attorney, and Assistant U.S. Attorney Robert Waters. It is fair to say that in Judge Graham’s mind this “NOTICE OF HEARING” is important.

    The “Status/Motion Hearing”

    The “Status/Motion Hearing” was indeed held on January 14, 2005. There was no discussion of the merits of the impending motion or request to file a motion. Exactly what role would AUSA Robert Waters and Frank Smith, U.S. Probation, play in a civil matter? Judge Graham said the matter is over. Mason asked Judge Graham was he prohibiting the filing of a Fed.R.Civ.P. Rule 60(b)(4)? Judge did not answer the question directly. He kept expressing his apparent personal opinion and desire for the matter to be over. Judge Graham exclaimed: “The Eleventh Circuit denied your appeal!” Judge Graham did not reduce any of his barking of commands to writing; instead he had his court reporter, C. Horenkamp, file an unsigned piece of paper called a ‘Civil Court Minutes’ on January 18, 2005. See Document No. 934. It appears that Judge Graham was attempting to “sua sponte” modify the sua sponte issued pre-filing injunction of September 20, 2001. Until now, Judge Graham has declined to put his “commands” in writing. However, an open letter to Judge Graham has been posted to this site explaining, with case law, to Judge Graham that orders and/order injunctions must be reduced to writing. See this site posting, “Open Letter to Judge Donald L. Graham Dated April 3, 2008“. Additionally, Judge Graham was sent a letter directly to chambers. It is clear that Judge Graham is attempting bully Mason into submission without reducing his “commands” to writing where they can be documented, archived, and appealed. Judge Graham is clearly trying to circumvent the appellate process. Judge Graham wants to have it both ways in that he wants deny access to the courts by Mason, but he is not man enough to put it in writing! Man up! Judge Graham has no compunction about violating the ‘rule of law’.