Posts Tagged ‘Smith v. GTE Corp.’


May 8, 2008

Judge Donald L. GrahamJudge 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 Additionally, this post will document the Eleventh Circuit’s affinity for deploying unpublished opinions that deliberately omit material facts in order to achieve the desired outcome.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.


Case No. No. 02-13418, Unpublished Opinion by Judge Ed Carnes, Judge Charles R. Wilson, and Judge Phyllis A. Kravitch.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

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, 8th Cir. U.S. Court of Appeal who said:

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for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser.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law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug.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


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, 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,

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.


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).


“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:
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, See Complaint of Judicial Misconduct Case No. 05-0008.