Posts Tagged ‘sua sponte’

Eleventh Circuit Disregards Well Established Law, Own Binding Precedent, And The U.S. Supreme Court: Achieving Desired Outcome By Ignoring Timely Filed Notices of Appeal

September 9, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”, A Bad Mother&&#!@, Shut Your Mouth!!

Table of Contents

Introduction

Point of This Post

Judicial Independence

Form of Notice Of Appeal

Disregarded Notices Of Appeal

Supreme Court On Time For Filing Notice of Appeal

Eleventh Circuit On Time For Filing Notice of Appeal

Other U.S. Circuit Court of Appeals On The Time For Filing Notice of Appeal

Order Closing the Case

Introduction

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct. Judge Graham has a history of insolence with respect the United States Supreme Court and binding precedent. See this site, “Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?“. This post will reference Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, Case No. 01-13664-A,  (11th Cir. 2002), an unpublished decision.  Mason v. Heartland Library Cooperative involves a level of judicial dishonesty that is odious and virtually impossible to overstate as this appeal has been aptly called “the appeal from hell”.  See Eleventh Circuit Case No. 01-13664: The Appeal From Hell The Eleventh Circuit is clearly unconstrained either by the law or the facts in its inexorable march to the land of desired outcomes. However, this post will limit itself to the narrow discussion of how the Eleventh Circuit simply took away the right to appeal a pre-filing injunction by asserting that notices of appeals were untimely. On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his 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. While not the subject of this post, but the sua sponte issued pre-fling injunction is remarkable  and incredible for the following reasons:

Point of This Post

This post will only address the narrow legal point that the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58, Federal Rules of Civil Procedure.  Specifically, this post will document how the Eleventh Circuit disregarded well established law, its own binding precedent, and the United States Supreme Court in order to keep from reviewing a sua sponte issued pre-filing injunction rendered by U.S. Dist. Judge Donald L. Graham on September 20, 2001.  The Eleventh Circuit simply ignored several timely filed notices of appeal that attacked the sua sponte issued pre-filing injunction.  Stated alternatively, the Eleventh Circuit just took away the legal right to appeal the sua sponte issued pre-filing injunction rendered on September 20, 2001.  The final judgment as required under Rule 58 was rendered on September 13, 2002. Prior to this date, September 13, 2002, the Eleventh Circuit disregarded several notices of appeal.

Judicial Independence

The American Bar Association, “ABA”, has created “talking points” on Judicial Independence. The ABA believes that Federal Judges should be left alone and be allowed to discipline themselves without “interference” from the Congress.

Benefits of Judicial Independence

It assures all Americans that cases will be decided on their merits. All litigants know that their case will be decided according to the law and the facts, not the vagaries of shifting political currents or the clamor of partisan politicians. Decisions are based on what is right and just, not what is popular at the moment.

ABA Talking Points: Independence of the Judiciary: Judicial Independence

Contrary to the ABA’s talking points, as this post documents, judges or appeals courts can simply deny an appeal without even bothering to address the merits of the appeal.  A court like the Eleventh Circuit can simply say a notice of appeal was untimely and disregard the right to appeal.   When this happens, a litigant is virtually without a remedy because the Supreme Court only hears about 1 per cent of the cases that are filed seeking review.

Form of Notice Of Appeal

Firstly, it is necessary to point out that according to the United States Supreme Court, a timely filed brief, formal or informal, or in this case a petition for mandamus may satisfy the notice of appeal requirement. There is no requirement that the brief or filing specifically state “notice of appeal”. “Rule 3(c) governs the content of notices of appeal: notices ‘shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.Smith v. Barry, 502 U. S. 244 (1992). Courts will liberally construe the requirements of Rule 3. Thus, when papers are ‘technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.Id at ¶11. [T]he notice afforded by a document, not the litigant’s motivation in filing it, determines the document’s sufficiency as a notice of appeal. If a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.” Id at ¶13. Consequently, a petition for mandamus that meets that meets the requirements stated above is sufficient to satisfy the notice of appeal requirement.

The Eleventh Circuit has stated: “[P]recedent permits us to treat the petition for the writ of mandamus as a direct appeal”. In Re Bethesda Memorial Hospital Inc., 123 F.3d 1407, 1408 (11thCir. 1997).

Rule 4. Appeal as of Right—When Taken

In a civil case, a litigant normally has 30 days to tile an appeal from an order or judgment.

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4 (a)(1)(B), 4 (a)(4), and 4 (c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

See Rule 4, Fed.R.App.P.

Pertinent Facts

This post will only list the facts that are necessary to determine when the time for filing a notice of appeal begins to run.  More detailed background information can be found at mmason.freeshell.org, generally, and at http://mmason.freeshell.org/CaseSummary.htm.  This case was an employment discrimination case and was docketed under Case No. 99-14027-CV-Graham.  The Case was dismissed on June 20, 2001, Docket Entry No. 791, by Judge Graham for constitutionally protected out of court communications between the Plaintiff, Marcellus Mason, and the Defendant, Highlands County Board of County Commissioners.   A Notice of Appeal was filed on June 25, 2001.  ( Docket Entry #795).  District Case No. 99-14027-CV-Graham was subsequently assigned Eleventh Circuit Case No.  01-13664.

Post Closing Order(s)

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his 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. Consequently, when Judge Graham rendered this sua sponte issued pre-filing on September 20, 2001, the matter was on appeal already.

Final Judgment

Final Judgment was rendered almost one year after the sua sponte issued pre-filing injunction of September 20, 2001.   The Defendants specifically requested a “final judgment” on February 25, 2002.  See Docket Entry No. 897Final Judgment was rendered on September 13, 2002. See Docket Entry No.  911.  The order expressly stated:

THIS CAUSE came before the Court upon Defendant’s

Motion for Entry of Final Judgment (D.E. 897)…FINAL JUDGMENT ORDER AND ADJUDGED that Defendant’s Motion is GRANTED. Final Judgment is entered in favor of Defendant and costs, in the amount of $200,00 are awarded to Defendant in accordance with this Court’s January 25, 2002.

Disregarded Notices Of Appeal

Prior to Final Judgment being rendered on September 13, 2002, the Eleventh Circuit disregarded several notices of appeal that included the following:

  • Firstly, an appeal was pending, Case No. 01-13664 [a direct appeal], when Judge Graham rendered the sua sponte issue pre-filing injunction on September 20, 2001.  A Notice of Appeal was filed on June 25, 2001.  ( Docket Entry 795).  On or about October 2, 2001, Mason filed a petition for mandamus challenging the validity of the sua sponte issued pre-filing injunction. See Receipt.  This petition for mandamus was subsequently assigned Case No. 01-15754.  The briefs in the direct appeal, Case No. 01-13664, had not been filed yet and the first brief was not filed until February 4, 2002.  See Eleventh Circuit’s Docket.  Consequently, the Eleventh Circuit could have and indeed should have construed the petition for mandamus as a notice of appeal and simply allowed the parties to argue this issue in the pending appeal.  However, on December 5, 2001, the Eleventh Circuit denied the petition for mandamus without requiring the appellees to respond.   The ” petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See Opinion.
  • Case No. 02-11476.  On May 01,2002, or four months before Final Judgment was rendered on September 13, 2002, the Eleventh Circuit denied a petition for mandamus that should have been treated as a notice of appeal and stated in pertinent part:  “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…Accordingly, Mason’s IFP motion is DENIED because his mandamus petition is frivolous.”  See Order dated May 1, 2002.
  • Case No. 02-14646.  On October 07,2002, or 24 days after final   Final Judgment was rendered on September 13, 2002, the Eleventh Circuit dismissed a notice of appeal that had been filed on June 24, 2002, or almost three months before Final Judgment was rendered on September 13, 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 pleadings, entered on September 21,2001. See Fed.R.App.P, 4(a)(l)(A) & 26(a)(3).

Supreme Court On Time For Filing Notice of Appeal

“Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).” Bankers Trust Company v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal under 28 U.S.C. § 2107 begins to run. According to the Advisory Committee that drafted the 1963 amendment:”Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e. g., ‘the plaintiff’s motion [for summary judgment] is granted,’ see United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 229, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79(a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of a judgment was effective, starting the time running for post-verdict motions and for the purpose of appeal. . . .

“The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document—distinct from any opinion or memorandum—which provides the basis for the entry of judgment.” 28 U.S.C.App., p. 7824. The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered. Id at ¶7.

See also United States v. Indrelunas, 411 U.S. 216 (1973).

Eleventh Circuit On Time For Filing Notice of Appeal

“'[C]ases from both the Supreme Court and the circuit courts of appeal make it clear that the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58.’”  Big Top Koolers, Inc. v. Circus-Man Snacks, Inc.,528 F.3d 839; 2008 U.S. App. LEXIS 11087; (11th Cir. 2008)(quoting Reynolds v. Golden Corral Corp., 213 F.3d 1344,1346 (11th Cir. 2000)). “But, Rule 58 provides an alternative means of determining when the final judgment is deemed entered: “[J]udgment is entered at the following times: . . . (2) if a separate document is required, when the judgment is entered in the civil docket under Rule 79(a) and the earlier of these events occurs: (A) it is set out in a separate document; or (B) 150 days have run from the entry in the civil docket.” Fed. R. Civ.P. 58(c) (emphasis added).” Id.

Other U.S. Circuit Court of Appeals On The Time For Filing Notice of Appeal

Tenth Circuit

“Federal Rule of Civil Procedure 58 sets forth how a judgment or order is to be entered. Under Rule 58(a)(1) ordinarily a “judgment [or] amended judgment must be set forth on a separate document.” (Federal Rule of Civil Procedure 54(a) defines judgment as “any order from which an appeal lies.”) But there are exceptions to the separate-document requirement; a separate document is not required for orders disposing of motions under Rules 50(b), 52(b), 54, 59, and 60. See Fed. R. Civ. P. 58(a)(1)(A), (B), (C), (D), (E). Entry is straightforward when a separate document is not required; in that circumstance, the order is “entered” when it is “entered in the civil docket under Rule 79(a).” Id. Rule 58(b)(1). But if a separate document is required, the judgment is entered only “when it is entered in the civil docket under Rule 79(a) and when the earlier of these events occurs: (A) when it is set forth on a separate document, or (B)”when 150 days have run from entry in the civil docket under Rule 79(a).” Id. Rule 58(b)(2). Medical Supply Chain, Inc. v. Neoforma, Inc., 508 F.3d 572 (10th Cir. 2007).

Fifth Circuit

What is significant about this case, Baker, infra, is that the district court entered an order and expressly wrote on the order that “‘This is a final judgment.‘” However, the court, Fifth Circuit, opined that this description did not meet Rule 58’s requirement for a separate document.  Baker, infra, at ¶12.

“‘[T]he 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered.’ Rule 58 is thus a safety valve preserving a litigant’s right to appeal in the absence of a separate document judgment.” Baker v.Mercedes Benz Of North America, 114 F.3d 57 (5th Cir. 1997). “If a separate document judgment is not entered, however, the time for filing an appeal does not begin to accrue until a judgment complying with the Rule 58 dictates has been entered. The rule is to be ‘ ‘interpreted to prevent the loss of the right of appeal, not to facilitate loss.”” Id. at ¶10. “If a separate document judgment is not entered, however, the time for filing an appeal does not begin to accrue until a judgment complying with the Rule 58 dictates has been entered. The rule is to be ‘ ‘interpreted to prevent the loss of the right of appeal, not to facilitate loss.””  Id. at ¶11.

Order Closing the Case

On June 20, 2001, Judge Graham rendered an order closing the case which stated:

THIS CAUSE came before the Court upon Defendants’ Motion and Second Motion for Sanctions in the Form of Dismissal of Plaintiff’s Action (D.E. #511 and D.E. #646). THE MATTER was referred to the Honorable United States Magistrate Judge Frank J. Lynch. A report recommending that the Court grant Defendants’ Motion for Sanctions in the Form of Dismissal of Plaintiffs Actions (D.E. #511 and D.E. #646), dated May 31, 2001, has been submitted. Plaintiff filed his objections on June 12, 2001. The Court has conducted a de novo review of the file and is otherwise fully advised in the premises. Accordingly, it is ORDERED AND ADJUDGED that United States Magistrate Judge Lynch’s Report of May 31, 2001, is hereby RATIFIED, AFFIRMED and APPROVED in its entirety. Therefore it is, ORDERED AND ADJUDGED that Defendants’ Motion and Second Motion for Sanctions in the Form of Dismissal of Plaintiff’s Action is GRANTED. It is further, ORDERED AND ADJUDGED that Plaintiff’s remaining claims are DISMISSED with prejudice. It is further, ORDERED AND ADJUDGED that this case is CLOSED and all pending motions are DENIED as MOOT. DONE AND ORDERED in Chambers at Miami, Florida, this 20th day of June, 2001.

See Docket Entry No. 791.

Advertisements

Chief Judge J.L. Edmondson: Contempt Abuse Is Not Judicial Misconduct

July 11, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamHe’s a bad motherf^%##, Shut your mouth!
Judge Donald L. Graham, “Teflon Don”

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct. Judge Graham has a history of insolence with respect the United States Supreme Court and binding precedent. See this site, “Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?“. Chief Judge J.L. Edmondson uses the perfect scam to defeat claims of judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. § 351, et.seq. The perfect scam is a “negative definition” of judicial misconduct. A negative definition is a “definition which states what a thing is NOT rather than what it is.” http://academic.csuohio.edu/polen/LC9_Help/2/25negative.htm. This post will advance the argument that Judge Edmondson is not troubled by the fact that a clearly void sua sponte issued pre-filing injunction is to terrorize a man and his family by making it the subject of criminal contempt complaint and conviction.

Judicial Independence

This post is a part of the overall scheme to land a knockout blow to the American Bar Association’s koolaid of “Judicial Independence”. The ABA’s emphasis is on “Judicial Independence” and it resists “interference” from outsiders-Congress of the United States, Layman review boards. The ABA has said: “There are checks on the judiciary and channels to correct improper decisions. The appeal process affords litigants the opportunity to challenge a judicial ruling. About Us – ABA Standing Committee on Judicial Independence. This is the idealistic and theoretical basis for “Judicial Independence”; however, the reality or actual practice does not equal the ideals. Suppose for a moment that such a system does not work. Federal Judges will take extreme measures to avoid disciplining a colleague federal judge. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell for even more dishonest jurisprudence. Moreover, the Eleventh Circuit will do anything to achieve the desired outcome. Two posts at this site, mcneilmason.wordpress.com, document how the Eleventh Circuit will do anything to achieve the desired outcome as the Eleventh took two different and inconsistent positions with respect to the jurisdiction of the lower court or Judge Graham during the appeal of this very appeal. See Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal! and Putrid Dishonesty:Beyond the Scope of Appeal.

The Clearly Void Sua Sponte Issued Pre-filing Injunction

On September 20, 2001, District Court Case No. 99-14027-CV-Graham/Lynch, Judge Graham rendered a pre-filing injunction against the Plaintiff Marcellus M. Mason sua sponte or own his motion. See Docket Entry NO. 878, (D.E. #878, pg. 3). Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. Additionally, this sua sponte issued pre-filing injunction is invalid because it also makes a “finding of bad faith“. 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.

This pre-filing injunction, being expressly issued sua sponte, was rendered without notice and an opportunity to be heard. It is well established that a pre-filing injunction may not issue absent due process or notice and opportunity to respond. See Case Law On Pre-Filing Injunctions, below. In this sua sponte issued pre-filing injunction, Judge Graham recognizes that the right of access to the courts is constitutionally protected: “This screening requirement best balances the interest in constitutionally mandated access to the federal courts…” See pg. 7.

Void Order Forms the Basis of Criminal Contempt Complaint and Conviction

Judge Graham took his clearly void sua sponte issued pre-filing injunction and submitted it to the U.S. Attorney for the Southern District of Florida, Marcos Daniel Jimenez, for prosecution. AUSA Robert Waters, with the full consent of his boss, US Attorney Marcos Daniel Jimenez, who signed the information, went ahead with a criminal contempt conviction and prosecution that they knew or should have known was based upon a clearly void order.

Beginning on or about September 20, 2001, and continuing to on or about November 1, 2002, in Highlands County, Dade county, and elsewhere, in the Southern District of Florida, the defendant, MARCELLUS M. MASON, Jr., did willfully and knowingly disobey and resist a lawful order of a Court of the United States, that is, the order issued by the Honorable Donald L. Graham, United States District Judge, on September 20, 2001, in the Southern District of Florida, in the case of Marcellus M . Mason v. Highlands County Board of County Commissioners, et al., Case Numbers:…by repeatedly filing pleadings, motions, memoranda, and directly contacting other litigants in the above cited cases, after specifically being enjoined from and ordered not to file any such pleadings or contact other litigants by Court Order dated September 20, 2001, in violation of Title 18, United States Code, Section 401(3).

See Information, Case No. 02-14020, Docket No. 6. 18 U.S.C. § 401(3) states: (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. 18 U.S.C. § 401(3) expressly calls for a “valid order”, which does not and cannot include a void order.

Judge Edmondson Disagrees With Everybody!

Judge Edmondson appears to be alone in his belief that “legal error” and contempt abuse does not constitute judicial misconduct. Judge Edmondson’s apparent view is that a judge’s “legal rulings” are sacrosanct. Judge Edmondson disagrees with the New York State Commission on Judicial Conduct who has stated: “Legal error and judicial misconduct are not mutually exclusive.” In Matter of Feinberg, 5 NY3d 206 (2005). In California contempt abuse is considered “Willful Misconduct”. Wenger v. Commission on Judicial Performance , 29 Cal.3d 615 (Cal. 1981). Contempt based upon an invalid underlying order is willful misconduct. University of New Mexico, Institute of Public Law, Judicial Education Center. Judge Edmondson disagrees with his colleague, U.S. Circuit Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit, (quoting Jeffrey M. Shaman, DePaul University Law, Steven Lubet, Professor, Northwestern University Law, and James J. Alfini President and Dean, South Texas College of Law), has stated:

Judicial action taken without any arguable legal basis —and without giving notice and an opportunity to be heard to the party adversely affected—is far worse than simple error or abuse of discretion; it’s an abuse of judicial power that is “prejudicial to the effective and expeditious administration of the business of the courts.” See 28 U.S.C. § 351(a); Shaman, Lubet & Alfini, supra, § 2.02, at 37 (“Serious legal error is more likely to amount to misconduct than a minor mistake.

See Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/ F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement . Judge Edmondson disagrees with the Supreme Court Of Louisiana who found a judge guilty of judicial misconduct due to contempt abuse and who also stated that judicial misconduct could be found where “legal error was egregious, made in bad faith, or made as part of a pattern or practice of legal error.” In Re: Judge Martha Sassone, No. 07-O-0651, Supreme Court Of Louisiana. The Michigan Judicial Tenure Commission has sanctioned judges for “Misuse of Judicial Authority” due to Improper consideration of contempt proceedings and for the  “Failure to Follow the Law”. Judge Edmondson disagrees with the Florida Supreme Court who opined:

[C]onduct unbecoming a member of the judiciary may be shown by evidence of an accumulation of small and ostensibly innocuous incidents which, when considered together, emerge as a pattern of hostile conduct unbecoming a member of the judiciary.

Inquiry Concerning A Judge, NO. 97-376, Re: Steven P. Shea, Florida Supreme Court, March 23, 2003. Judge Edmondson disagrees with his own Judicial Conference, Committee on Judicial Conduct and Disability who has stated:

[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.

http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf

Judicial Misconduct Complaints of Contempt Abuse

Chief Judge J.L. Edmondson, Circuit Judge, does not consider knowingly convicting a man of crime that does not exist or a concocted crime, to be  misconduct under the Judicial Misconduct and Disability Act. Stated alternatively, Judge Edmondson does not consider framing an innocent person to be covered under the Act. This post will not characterize Judge Edmondson’s words, this author deplores the reader to read them and make your own judgment. In Case No. 05-0011, Judge Edmondson was specifically told of Judge Graham’s insolence

See Complaint of Judicial Misconduct, Case No. 05-0011, Complaint No. 02-0059, and Order Dismissing Complaint No. 02-0059.

Mr. Marcellus M. Mason, Jr. filed this complaint against U.S. District Judge Donald L. Graham pursuant to Title 28 U.S.C. § 372(c) and Addendum III to the Rules of the Judicial Council of the Eleventh Circuit.

In this complaint, Mr. Mason makes the unsubstantiated claim that Judge Graham is attempting to intimidate him by directing the United States Attorney’s Office for the Southern District of Florida to proceed with previously instituted contempt proceedings regarding his having violated Judge Graham’s order barring him from filing anything without the permission of the court.

Mr. Mason then makes numerous allegations concerning actions by Judge Graham which have previously been determined by the chief judge.

The allegations of this complaint are “directly related to the merits of a decision or procedural ruling”and ” successive”. Therefore, pursuant to 28 U.S.C. § 372(c)(3)(A) and Addendum III Rule(s) 4(a)(2) and 18 (c), this complaint is DISMISSED.

See Complaint of Judicial Misconduct, Case No. 02-0059.

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 hallenge 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)

Effect of Void Order

“A void judgment is from its inception a legal nullity.” Boch Oldsmobile, at 909 F.2d 657, 661 (1st Cir. 1990). Lops v. Lops, 140 F.3d 927, 941 n. 19(11th Cir. 1998) (“something that is null has no legal or binding force.”); Carter v. Fenner, at 136 F.3d 1000 (5th Cir. 1998)(“[a] void judgement is one which, from its inception, was a complete nullity and without legal effect.”). Anderson v. Dunn, 19 U.S. 204, 217 (1821)(“the constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.”);

“The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.” Windsor v. McVeigh, 93 U.S. 274;23 L.Ed. 914 (1876).

U.S. SUPREME COURT ON FINDING OF BAD FAITH

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).

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).

Eleventh Circuit, U.S. Court of Appeal, Masters of Jugglery: Jurisdictional Challenge Converted To Summary Reversal Motion To Achieve Desired Outcome

June 28, 2008

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”
He’s a bad motherf^%##, Shut your mouth!

Point of This Post

This post will document how the Eleventh Circuit, U.S. Court of Appeal, used jugglery to avoid an outcome that the facts and the law would have required. Jugglery is defined as manipulation or trickery especially to achieve a desired end. This matter concerns an appeal in the Eleventh Circuit, Case No. 01-13664 and District Court Case No. 99-14027-CIV-DLG, Judge Donald L. Graham, presiding. In this matter, the Eleventh Circuit converted a motion to determine jurisdiction that it must satisfy to a summary reversal motion that is discretionary. Having recharacterized the motion, the Eleventh Circuit, without citing any facts, simply said the summary reversal was not warranted. Simply put, the Eleventh Circuit refused to state why it had jurisdiction. This post is a part of the overall scheme to land a knockout blow to the American Bar Association’s koolaid of “Judicial Independence”. The ABA’s emphasis is on “Judicial Independence” and it resists “interference” from outsiders-Congress of the United States, Layman review boards. The ABA has said: “There are checks on the judiciary and channels to correct improper decisions. The appeal process affords litigants the opportunity to challenge a judicial ruling. About Us – ABA Standing Committee on Judicial Independence. This is the idealistic and theoretical basis for “Judicial Independence”; however, the reality or actual practice does not equal the ideals. Suppose for a moment that such a system does not work. Federal Judges will take extreme measures to avoid disciplining a colleague federal judge. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell for even more dishonest jurisprudence. Moreover, the Eleventh Circuit will do anything to achieve the desired outcome. Two posts at this site, mcneilmason.wordpress.com, document how the Eleventh Circuit will do anything to achieve the desired outcome as the Eleventh took two different and inconsistent positions with respect to the jurisdiction of the lower court or Judge Graham during the appeal of this very appeal. See Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal! and Putrid Dishonesty:Beyond the Scope of Appeal.

Premise

Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree, It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Insurance Company Of America, 511 U.S. 375 (1994). “The courts, no less than the political branches of the government, must respect the limits of their authority.” Catholic Conf. v. Abortion Rights Mobilization, 487 U.S. 72 (1988)..

ISSUE: Whether the Eleventh Circuit Had Jurisdiction of the Appeal?

The Appellant submitted a Motion To Determine Jurisdiction. The Eleventh Circuit and the U.S. Supreme Court has stated in case after case that a jurisdictional challenge maybe raised at any time. Moreover, both courts have stated that all courts are under an independent obligation to review its jurisdiction even if no party raises the issue. In this matter, rather than discuss why or why it did not have jurisdiction of the appeal the Eleventh Circuit converted the Motion To Determine Jurisdiction in to a motion for summary reversal. Having converted the motion into a summary reversal, a discretionary form of relief, the Eleventh Circuit, in a mere conclusory fashion simply asserted that the standards for a summary reversal were not met. Rather than construing the Motion To Determine Jurisdiction, a pro se motion, liberally to achieve substantial justice, the Eleventh Circuit construed the motion to achieve its own end.

Eleventh Circuit’s Response to Jurisdictional Challenge

On April 15, 2002, the Eleventh Circuit stated: “Appellant’s “motion to determine jurisdiction,” and “motion to determine subject matter jurisdiction and standing,” which are construed as motions for summary reversal, and are DENIED.” See Order Denying Jurisdiction.

On May 17, 2002, the Eleventh Circuit stated:

“Appellant’s motion for clarification is GRANTED, and this Court’s April 15, 2002, Order clarified as follows: Appellant’s motions, which were construed as motions for summary reversal, were denied because Appellant failed to meet the standards for summary disposition. See Groendyke Transport v. Davis, 406 F.2d 1158, 1162 (5th Cir.) cert. denied, 394 U.S. 1012, 89 S.Ct. 1628, 23 L.Ed.2d 39 (1969).”

See Order Granting Clarification.

Citing the Law and omitting the facts, an all too familiar tactic of the Eleventh Circuit, is that decisions are made with recitation to a court case with no recitation to the facts of the instant case

What Do You Know From Reading The Order?

This post was designed with the decision first for the purpose of accentuating the lack of information in decision not to discuss jurisdiction. Reading only the decision above, answer the following questions:

  • Why does the Eleventh Circuit have jurisdiction?
  • What is the law regarding jurisdiction on appeal?
  • What are the facts that support the decision?
  • Why did the Eleventh Circuit construe the motion to determine jurisdiction as a motion for summary reversal?
  • Who benefited by construing the motion as a motion for summary reversal?

Law On Jurisdiction

[T]he Supreme Court has ruled that “it is not proper for federal courts to proceed immediately to a merits question despite jurisdictional objections.” In re Madison Guaranty Savings & Loan Association, 173 F.3d 866; 335 U.S. App. D.C. 327 (C.A.D.C. 1999)(citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (without proper jurisdiction, a court cannot proceed at all, but can only note the jurisdictional defect and dismiss the suit)”). “On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.Steel Co., 523 U.S. at 94. See also UNITED STATES of America v. Mery GIRALDO-PRADO, 150 F.3d 1328 (11th Cir. 1998) (“We have noted that a party may raise jurisdiction at any time during the pendency of the proceedings.”);

In a case involving Judge Graham, United States Of America v. Machado, No. 05-11420, D. C. Docket No. 97-00238-CR-DLG, 465 F.3d 1301pgs. 8,9 (11th Cir. 2006);2006 US App (11th) 398, the Eleventh Circuit held:

We are aware, of course, that “subject-matter jurisdiction . . . can never be forfeited or waived” and “[c]onsequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court,” United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 1785 (2002); see also Arbaugh v. Y& H Corp., ___ U.S. ___, ___, 126 S. Ct. 1235, 1240 (2006) (“The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”). That principle is not, however, an exception to the requirements for appellate jurisdiction, and if those requirements are not met we cannot review whether a judgment is defective, not even where the asserted defect is that the district court lacked jurisdiction.

The Eleventh Circuit had a duty to not only review its own jurisdiction, but that of the lower court as well. Even if the neither the parties raise the issue of subject matter jurisdiction the Eleventh Circuit is required to do so on its motion or sua sponte. See ALFRED L. BOCHESE v. TOWN OF PONCE INLET, No. 04-11542, 405 F.3d 964 (11th Cir. 2005)(“Although the parties have not raised the issue here, we are obliged to consider, sua sponte, the question of our subject matter jurisdiction to hear the case before us.“), http://www.ca11.uscourts.gov/opinions/ops/200411542.pdf.

Federal courts are “obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking. “As a threshold matter, therefore, we must initially determine both whether the district court had subject matter jurisdiction to consider Williams’ Rule 60(b) motion and whether this Court has jurisdiction to review the district court’s denial of his motion.” WAYNE BERTRAM WILLIAMS v. BRUCE CHATMAN, No. 06-16115 (11th Cir. 2007),,(citing Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004)). “An appellate court has a duty to consider sua sponte whether appellate jurisdiction is properly invoked.” John Andrew Mattingly v. Farmers State Bank, No.98-3234 (6th Cir. 1998), ELECTRONIC CITATION: 1998 FED App. 0262P (6th Cir.) File Name: 98a0262p.06 (citing Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976)).

“When a colorable question exists, an appellate court has an unflagging obligation to inquire sua sponte into its own jurisdiction.” Charlesbank Equity Fund Ii v. Blinds To Go, Inc., 370 F.3d 151 (1st Cir. 2004).

Construed or Screwed

“Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category. They may do so in order to avoid an unnecessary dismissal, to avoid inappropriately stringent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion’s claim and its underlying legal basis. ” Castro v. United States (02-6683) 540 U.S. 375 (2003). “Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” United States Of America v. Pierre Castma , No. 07-13531 (11th Cir. 2005)(quoting Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), cert. denied, 127 S. Ct. 1908 (2007)).See also United States Of America v. Gary William Holt, No. 04-15848, 417 F.3d 1172 (11th Cir. 2005)(“noting that a pro se motion should be liberally construed to afford review on any “legally justifiable base”)(citing Sanders v. United States, 113 F.3d 184, 187 (11th Cir.1997) (per curiam) (noting that a pro se motion should be liberally construed to afford review on any “legally justifiable base”)).

The clear intent of liberal construction is for the benefit of the pro se litigant and not to the detriment of the pro se litigant. In this matter, the Eleventh Circuit construed a Motion to Determine Jurisdiction to motion for summary reversal. This “construction” or recharacterization was to the detriment of Mason. The Eleventh Circuit took a mandatory motion which required it to assert facts and law to support both its jurisdiction and that of the lower court and converted it to a “summary reversal” motion. Had the Eleventh been unable to sufficiently support its jurisdiction and that of the lower court would have required a dismissal of the appeal. The Eleventh Circuit ran ahead to the finish line and saw who was going to win the race, consequently they changed the rules to guarantee the winner or outcome of the race. The Eleventh then construed the motion to determine jurisdiction into a motion for summary reversal which is a discretionary. Once the motion became discretionary, the Eleventh Circuit was free to avoid the outcome the facts would have demanded. It is difficult not to conclude that the rules were construed to achieve the desired outcome-vindication of Judge Graham.

Internal Operating Procedure

The Eleventh Circuit’s internal rules allows them to raise a jurisdictional issue at their discretion. 11th Cir. R. 31-1(e) (1999)states:

(e) Jurisdictional Question. If, upon review of the district court docket entries, order and/or judgment appealed from, and the notice of appeal, it appears that this court may lack jurisdiction over the appeal, the court may request counsel and pro se parties to advise the court in writing of their position with respect to the jurisdictional question(s) raised. The issuance of a jurisdictional question does not stay the time for filing briefs otherwise provided by this rule.

Motion To Determine Jurisdiction

Appellant’s Motion To Determine Jurisdiction was submitted on or about March 13, 2002. See Docket and Motion. This motion argued that the Eleventh Circuit did not have jurisdiction of the appeal because the alleged violations of preliminary injunctions, or orders that were granted on June 19, 2000, (DE #201), and July 25, 2000, (DE #246) were not lawful for the following reasons:

  • Magistrate is without legal authority to issue an injunction or a restraining order. See Motion, pps. 3,5-6.
  • These orders are invalid because the Defendants failed to file a complaint for an injunction or a restraining order.
  • These orders failed to meet the requirements for a “temporary Injunction” or “TRO”. See Motion, pg. 6,7.

Case Cited By Eleventh Circuit Supports Appellant

The Eleventh Circuit cited Groendyke Transport v. Davis, 406 F.2d 1158, 1162 (5th Cir.) cert. denied, 394 U.S. 1012, 89 S.Ct. 1628, 23 L.Ed.2d 39 (1969) for the proposition that a “summary reversal” was not warranted. However, Groendyke Transport actually supports Mason’s or the Appellant position. Firstly, Groendyke Transport, like the instant case involved the question of the validity of an injunction. Groendyke Transport, set forth two conditions that would warrant a summary disposal:

  • “The first comprises those cases where time is truly of the essence. This includes situations where important public policy issues are involved or those where rights delayed are rights denied.”
  • Second, are those in which the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case…

The where rights delayed are rights denied position favors Mason. The injunctions issued in the instant case concerned First Amendment rights. These injunctions prohibited direct communications with the government. Secondly, one of the injunctions, (D.E. #246)(“”Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.), implicated Florida Public Record requests. It is well settled and unremarkable that the “the loss of constitutional rights for even a minimal amount of time constitutes irreparable harm.” See Taubman Company v. Webfeats, 319 F.3d 770 (6th Cir. 2002). More importantly, according to the Supreme Court: “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.Elrod v. Burns, 427 U.S. 347, 373 (1976); same 11th Cir., Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983)(“It is well settled that the loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury justifying the grant of a preliminary injunction.“); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417 (11th Cir. 1984)(“first amendment rights violated sufficient to show irreparable injury because loss of first amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury“) .

The one of the parties is clearly right as a matter of law condition favors Mason the appellant. The best argument in support of the appellant is lack of legal citation or facts by the Eleventh Circuit. More importantly, the law favored Mason because a Magistrate can not issue an injunction. Assuming arguendo, a Magistrate could issue an injunction, Mason would have prevailed because order fails to meet the 4 prong requirements for a preliminary injunction.

BACKGROUND

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. 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, 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. “R&R” (D.E. 766), Order adopting R&R (D.E 791). See Banned Communications. In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue asked the Magistrate to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants. 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 on June 19, 2000 and July 25, 2000 in part stated:

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.” (). This order is dated July 25, 2000.

Judge Graham has expressly stated that the issuance of the injunctions by Magistrate Judge Frank Lynch, Jr. was not “clearly erroneous nor is it contrary to law. See Docket Entry No. 407. However, Congress and the law disagree as the law expressly states that: “Notwithstanding any provision of law to the contrary— 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 March 2, 2001, Highlands County Board of County Commissioners attorneys, Allen, Norton & Blue, filed a “DEFENDANTS’ MOTION FOR SANCTIONS IN THE FORM OF DISMISSAL OF PLAINTIFF’S ACTION AND SUPPORTING MEMORANDUM OF LAW“. See Docket Entry No. 511. This motion sought dismissal of the lawsuit due to alleged out of court communications with the Highlands County Government in violation the injunctions mentioned above,DE #201) and (DE #246). On April 9, 2001, the Defendants’ filed a second motion for sanctions in the form of dismissal of Plaintiff’s lawsuit for more alleged out of court communications between Mason and the Highlands County Government. See Docket Entry No. 646. On May 31, 2001, the Magistrate, Frank Lynch, Jr., prepared a Report and Recommendation, “R&R”, recommending that the lawsuit be dismissed because of these out of court communications between Mason and his local government, Highlands County Board of County Commissioners. Judge Graham accepted this R&R in whole with no changes or comments.

The Case was closed on June 20, 2001. Docket Entry No. 791. A Notice of Appeal was filed on June 25, 2001. (Docket Entry 795). District Case No. 99-14027-CV-Graham was assigned Eleventh Circuit Case No. 01-13664. Consequently, the court never reached the merits of the lawsuit as there were motions for summary judgments pending when 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).

Refusal To Cite Legal Authority

Judge Graham and his Magistrate, Frank Lynch, Jr. have repeatedly refused to cite legal authority for these orders, (DE #201) and (DE #246), which required Mason to seek the approval of private attorneys, Allen, Norton & Blue, prior to petitioning the government. See Court Orders: (DE #201), (DE #246);(Doc. #279);(Doc. 281);(Doc. #407);(Doc. #524);(Doc. #528);(Doc. #634);(Doc. 673);(Doc. 744);(Doc. 745);(Doc. 766);(Doc. 791);(Doc. 874, pg. 2);(Doc. 882, pgs. 1-2); (DE-890); (DE-928);(DE-931)).

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

June 12, 2008

Justice Turned On Its Head

Judge Donald L. GrahamJudge 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.


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.


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.


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.


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.


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.


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.


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


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 (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). 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).


.

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.

Do Staff Attorneys Decide Appeals At The Eleventh Circuit, U.S. Court of Appeals?

June 12, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct.

Questions For Consideration

If a mere pro se litigant filed an appeal which excoriated a supposed excellent jurist like U.S. District Judge Donald L. Graham, “Teflon Don”, and accused him of judicial misconduct that could be proven, what do you think the staff attorneys at the Eleventh Circuit would do? The answer is the allegations will be simply be ignored by deploying an unpublished opinion that omits material facts. The author would prefer the reader to read the rest of this post to see how this is possible, but for those who can’t wait, please see:

Are Staff Attorneys at the Eleventh Circuit, U.S. Court of Appeals Deciding Cases and Appeals?

It is widely rumored, especially among mere pro se litigants, that staff attorneys, not United States Senate confirmed United States Circuit Court Of Appeals Judges, decide appeals in many cases. While this post will take a look at a couple of cases that the Eleventh Circuit, U.S. Court of Appeal handled, there is no reason to believe that similar practices are not being deployed elsewhere. The overwhelming majority of opinions coming out of the U.S. Circuit Court of Appeals are unpublished opinions which until recently could not be cited as binding authority. The evidence presented here will prove beyond a resonable doubt that staff attorneys, using unpublished opinions, do in fact decide cases, especially mere pro se cases or appeals.

According to the Administrative Office of the U.S. Courts:

“The number of federal appeals court judgeships has not changed since 1990. In that same period, those courts’ caseloads increased by 41 percent. Of great aid to judges in the 12 regional appellate courts over those years have been the 12 court staff attorney offices…Judge Joel Dubina of the U.S. Court of Appeals for the Eleventh Circuit said, “We could not handle our caseload without the assistance of staff attorneys. The staff attorney office is an integral part of our court…”Core responsibilities vary among staff attorney offices, but in each appeals court they include review of all appeals filed by prison inmates without a lawyer’s help. Screening such “pro se” prisoner cases was the initial focus of staff attorney offices when they were formally authorized and established by Congress in 1982… Over time, the scope of the office’s substantive legal work expanded, involving staff attorneys in a larger percentage of the 60,000 federal appeals filed each year…Duties handled by staff attorney offices today range from screening all appeals, to drafting proposed opinions on preliminary matters, to preparing proposed orders, to reviewing pro se appeals for issues warranting oral arguments. Chief Judge William Wilkins said the productivity and reliability of the Fourth Circuit court’s staff attorney office allows judges and their law clerks to “minimize the time spent on the large number of pro se and counseled cases that do not present factual or legal issues that require oral argument for appropriate resolution.” “This enables us to allocate additional time to those more complex cases that are set for oral argument,” he said…In the Eleventh Circuit, staff attorneys, among other things, screen every appeal for possible jurisdictional defects. “We save the judges a lot of time by carefully going through volumes of handwritten and often imprecise legal arguments, and putting these in a form, along with citations to the record, briefs and applicable case law, that saves the judges time,” said Naomi Godfrey, the court’s senior staff attorney.”

See Staff Attorney Offices Help Manage Rising Caseloads.

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

It was U.S. 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 judgesare human beings.”

1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas – Little Rock School of Law ; Richard S. Arnold.Judge Arnold, now deceased, cannot be resting comfortably. In Anastasoff. v. United States, 223 F.3d 898 (8th Cir. 2000), Judge Arnold and his panel declared unpublished opinions to be unconstitutional. This opinion was subsequently vacated on other grounds, 235 F.3d 1054 (8th Cir. 2000) by an en banc court.

Cases Decided by Staff Attorneys

This post will refer the reader to three appeals that were decided by staff attorneys at the Eleventh Circuit, United States Court of Appeals: Case No. 01-13664, 01-15754, and 02-13418. Each of these appeals excoriates U.S. District Judge Donald L. Graham, however, you won’t see a word of the accusations leveled at Judge Graham in the opinions. U.S. District Judge Donald L. Graham was accused of the following documented acts in the above appeals:

  • Lying and Intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction during the entire pendency of the lawsuit from November 1999 to June 20, 2001 or about 19 months.
  • Judge Graham falsely completed a Civil Justice Reform Act Report, “CJRA” to conceal the fact that he had a motion for a preliminary injunction pending for more than 17 months.
  • Usurping authority by allowing a Magistrate, Frank Lynch Jr., to issue preliminary injunctions two times.
  • Usurping authority by allowing a Magistrate to dictate to a non-lawyer that he must seek the permission of private attorneys in order to speak with a local government.
  • Usurping authority by allowing a Magistrate to set restrictions on how Florida Public Records are to be accessed.
  • Allowing scores of motions to go undecided for months.
  • Intentionally misstating material facts in order to render a pre-filing injunction.
  • Disrespecting several well-established Supreme Court decisions proscribing certain acts of Judges.
  • Judge Graham has repeatedly and improperly denied access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions 18 separate times.
  • Judge Graham has been involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction which ultimately formed the basis of a criminal contempt complaint and conviction.
  • Judge Graham used the criminal contempt process to force the withdrawal of a lawsuit.
  • Judge Graham awarded a massive $200,000 in attorney’s fees to Highlands County against an indigent plaintiff, Marcellus Mason, not on the quality of the underlying lawsuit, but based upon Judge Graham’s speculation about Mason’s motive.
  • Judge Graham attempted to circumvent the appellate process by using intimidation.

For support of these allegations and others, see Core Allegations.

The three appeals mentioned above are fully set forth and explored in detail in the following posts:

Chief Circuit Judge J.L. Edmondson Uses Perfect Scam of Negative Definition To Defeat Complaints of Misconduct Under the Judicial Misconduct and Disability Act

June 8, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Purpose of this Post

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct. The overall scheme of all methods (direct appeal, mandamus, lawsuit, misconduct complaints) of disciplining federal judges have been undermined and defeated by Judge Graham’s cohorts at the Eleventh Circuit, see http://mmason.freeshell.org/methods.htm. States with have removed judges from office for the conduct that is listed in this post and elsewhere. This post will examine the perfect scam that Chief Judge J.L. Edmondson has used to defeat claims of judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. § 351, et.seq. The perfect scam is a “negative definition” of judicial misconduct. A negative definition is a “definition which states what a thing is NOT rather than what it is.” http://academic.csuohio.edu/polen/LC9_Help/2/25negative.htm. Judge Edmondson does not define misconduct he simply disagrees with every act that alleges misconduct in the complaint is judicial misconduct. Consequently, a negative definition is used to define judicial misconduct out of existence. Chief Judge J.L. Edmondson’s definition, or lack thereof, would suggest that federal judges are held to a lower standard than state court judges. Congress does not help as it chosen not to identify specific acts that it considers to be judicial misconduct for it has abrogated this responsibility and left it up to judges like Judge Edmondson to decide. Section 352 states:

(b) Action by Chief Judge Following Review.— After expeditiously reviewing a complaint under subsection (a), the chief judge, by written order stating his or her reasons, may—
(1) dismiss the complaint—
(A) if the chief judge finds the complaint to be—
(i) not in conformity with section 351 (a);
(ii) directly related to the merits of a decision or procedural ruling; or
(iii) frivolous, lacking sufficient evidence to raise an inference that misconduct has occurred, or containing allegations which are incapable of being established through investigation; or

It is a well known fact that Chief Judges summarily dismiss complaints of misconduct at a rate greater than 90 per cent. This is part of the reason why Justice Stephen Breyer was selected by the then Chief Justice Rehnquist to do a study of the problem. At the urging of Congressman James Sensenbrenner, former Chairman, U.S. House Judiciary Committee, in 2004, a committee was formed (The Judicial Conduct and Disability Act Study Committee) by Chief Judge Rehnquist to study the problem of federal judicial discipline. Judge Edmondson is of the apparent belief that legal error and judicial misconduct are mutually exclusive. As a consequence of this narrow view, Judge Graham can put on his robe and do anything he damn well pleases because “legal error” is not judicial misconduct.

Other Tactics Used by Judge Edmondson

The use of the negative definition tactic is fatal enough by itself to demolish almost all complaints of judicial misconduct. However, Judge Edmondson has used at least three other tactics that augment the negative definition tactic. Judge Edmondson has used:

  • Mischaracterization. Judge Edmondson characterizes your allegations of misconduct and abuse in such a manner that they fit easily within the categories for summary dismissal. For an example, see Complaint No. 05-0011.
  • Omission. Judge Edmondson omits specific allegations of misconduct and abuse from his summary dismissals. For example, in complaint No. 01-0054, Judge Edmondson states: “The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling” and/or ‘Action on the complaint is no longer necessary because of intervening events, and therefore moot”. Consequently, pursuant to 28 U.S.C. § 372(c)(3)(A) and (3)(B) and Addendum Three Rule 4 (a)(2), this Complaint is DISMISSED.”
  • Fails to test allegations of misconduct for veracity. Judge Edmondson does not test allegations of misconduct and abuse for veracity.
  • Failure to Investigate. Judge Edmondson does not investigate allegations of misconduct and abuse. Judge Edmondson does not ask the complainant for more information to support a charge, he simply states that the charge lacks factual support.

Specific examples of the above are set forth below in the “Not Judicial Misconduct” heading. When told of these allegations, Judge Graham’s Chief Judge, S.D. Fla., Federico Moreno offered the following tepid “endorsement”:

I am in receipt of your letter written to me as a Chief Judge of the Southern District of Florida about actions by Judge Donald Graham. In that letter, you also complained about the Chief Circuit Judge J.L. Edmondson. As you can understand one district judge cannot review the actions of another district judge. This rule applies to the Chief Judge of the District as well. It is before the Eleventh Circuit Court of Appeals in Atlanta that any complaint as to a ruling made by a District Judge can be made, I assure you that any decision rendered by Judge Graham was made in good faith upon what he perceived to be the law. Judge Graham has an impeccable reputation. However, if you feel that a judge has erred, the appellate judges in Atlanta are the ones who can decide what to do about it. Thank you for writing.

See Letter dated April 4, 2008.

Judicial Misconduct Complaints

The following complaints have been lodged against Teflon Don.

Not Judicial Misconduct

Judge Edmondson has expressly stated that each of the following documented acts of misconduct are not misconduct under the Act.

  • Lying and Intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction during the entire pendency of the lawsuit from November 1999 to June 20, 2001 or about 19 months.
  • Judge Graham falsely completed a Civil Justice Reform Act Report, “CJRA” to conceal the fact that he had a motion for a preliminary injunction pending for more than 17 months.
  • Usurping authority by allowing a Magistrate, Frank Lynch Jr., to issue preliminary injunctions two times.
  • Usurping authority by allowing a Magistrate to dictate to a non-lawyer that he must seek the permission of private attorneys in order to speak with a local government.
  • Usurping authority by allowing a Magistrate to set restrictions on how Florida Public Records are to be accessed.
  • Allowing scores of motions to go undecided for months.
  • Intentionally misstating material facts in order to render a pre-filing injunction.
  • Disrespecting several well-established Supreme Court decisions proscribing certain acts of Judges.
  • Judge Graham has repeatedly and improperly denied access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions 18 separate times.
  • Judge Graham has been involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction which ultimately formed the basis of a criminal contempt complaint and conviction.
  • Judge Graham used the criminal contempt process to force the withdrawal of a lawsuit.
  • Judge Graham awarded a massive $200,000 in attorney’s fees to Highlands County against an indigent plaintiff, Marcellus Mason, not on the quality of the underlying lawsuit, but based upon Judge Graham’s speculation about Mason’s motive.
  • Judge Graham attempted to circumvent the appellate process by using intimidation.

These allegations and others fully documented at: (1)http://mmason.freeshell.org/CoreAllegations.htm; or (2)Documented Acts of Misconduct by U.S. Dist. Judge Donald L. Graham. As of this date, the Judges at the Eleventh Circuit have allowed Teflon Don to escape rebuke and condemnation as Judge Graham has not been punished in any way for these acts. For example, many of these allegations were mentioned in a direct appeal and simply ignored by the appellate panel, see “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“. Petitions for mandamus met with a similar fate, see for example, Case No. 01-15754, “Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham“. Judge Graham’s behavior easily fits within positively defined definitions of judicial misconduct.

JUDICIAL MISCONDUCT DEFINED

Judicial Misconduct has been defined by Jeffrey M. Shaman, DePaul University Law, Steven Lubet, Professor, Northwestern University Law, James J. Alfini President and Dean, South Texas College of Law, U.S. Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit, in part as:

Judicial action taken without any arguable legal basis —and without giving notice and an opportunity to be heard to the party adversely affected—is far worse than simple error or abuse of discretion; it’s an abuse of judicial power that is “prejudicial to the effective and expeditious administration of the business of the courts.” See 28 U.S.C. § 351(a); Shaman, Lubet & Alfini, supra, § 2.02, at 37 (“Serious legal error is more likely to amount to misconduct than a minor mistake.

See Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/
F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement
.

“[A] judge is guilty of “oppression in office” when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the circumstances and amount to an excessive use of judicial authority.” State v. Colclazier, 2002 OK JUD 1, 106 P.3d 138.

“Where honesty or integrity are at issue, a single action can result in a finding of judicial misconduct.” In re District Judge Ronald F. Kilburn, Case No. 90-478, (Vermont Supreme Court 1991)(citing In re Hill, 152 Vt. 548, 572-75, 568 A.2d 361, 373-75 (1989)). See http://dol.state.vt.us/SUPCT/157/op90-478.txt.

“Canon 3A(5) is violated where there is a pattern of unreasonable delay or where a particular instance is so lacking in legitimate justification that it is willful. See Matter of Long, 244 Kan. 719, 724, 772 P.2d 814, 818 (1989) (Canon 3A(5) violated where delay is “significant, extensive, and unjustified”); Sommerville, 364 S.E.2d at 23 n.3 (sanctions appropriate under Canon 3A(5) where there is a pattern of delay resulting from either willful neglect of, or manifest inability to effectively perform, judicial duties); Matter of Alvino, 100 N.J. 92, 97 n.2, 494 A.2d 1014, 1016 n.2 (1985) (delay can violate Canon 3A(5) if “willful” or “typical of the judge’s work”);” See URL:http://www.libraries.vermont.gov/SUPCT/157/op90-478.txt.

“Legal error and judicial misconduct are not mutually exclusive.” In Re Feinberg, 5 NY3d 206,New York State Commission on Judicial Conduct.

The University of New Mexico, Institute of Public Law, Judicial Education Center, has put together a Judicial Ethics Handbook which defines judicial misconduct.

If Judge Edmondson had an affirmative definition like the ones described above, then Judge Graham would have to disciplined. If the states are able to cite and list specific examples of judicial misconduct, then there is no reason why the federal judiciary can not do the same. To simply say, no that is not misconduct as Judge Edmondson does reflexively, is not enough.

Pending Judicial Misconduct Complaints

It has been said that the Committee on Judicial Conduct and Disability, has become quite serious in investigating federal judges for misconduct. According to law.com, in March of this year, the Judicial Conference adopted the first-ever binding nationwide procedures for handling complaints of judicial misconduct. As a result of this, Mason submitted to complaints to both the Judicial Conference and Judge Edmondson again.

Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?

May 31, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Preface

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

“”Thumbing your nose at the U.S. Supreme Court is almost unheard of in the judicial system,” said Kary Moss, ACLU of Michigan Executive Director.” U.S. District Judge Donald L. Graham made a command decision on his own motion to restrict Marcellus M. Mason’s right of access to the courts without giving him due process of law or notice and opportunity’s respond prior to the issuance of a pre-filing injunction on September 20, 2001. This denial represents an apparent snub and disdain for the United States Supreme Court and the Congress. Even more outrageous, is that the Eleventh Circuit, U.S. Court of Appeal, has given its stamp of approval to Judge Graham’s disdain and contempt for the United States Supreme Court. The Eleventh Circuit has made the value judgment that Judge Graham’s career and reputation is more important than the life of a nobody like Marcellus M. Mason Jr. If Judge Graham and his enablers won’t respect the law and the United States Supreme Court then who should?

The Act That Defies the U.S. Supreme Court

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his 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. APPELLATE HISTORY. This injunction is commonly referred to under several different names: “leave to file injunction”, “vexatious litigant injunction”, “pre-filing injunction”, “filing injunction”, “1651 injunction”. This same injunction that was issued without notice and opportunity to respond also makes a “finding of bad faith”. At pages 5 and 6, Judge Graham specifically states:

It has become clear to the Court that Mason is proceeding in bad faith…Such activity is in bad faith and will not be permitted by the Court.

The sua sponte issued pre-filing injunction is unlawful for numerous reasons.

Definition of Willful

WILLFULLY – Committed voluntarily and purposely, with the specific intent to do something; voluntarily and intentionally assisting or advising another to do something that the person knows disobeys or disregards the law. A person does not act “willfully” if the person acts as a result of a good faith misunderstanding of the requirements of the law. See http://www.lectlaw.com/def2/w014.htm

.

Premise of This Post

Is Judge Donald L. Graham guilty of willfully defying the orders and opinions of the United States Supreme Court? If the reader wants to believe that Judge Graham is not willfully defying the United States Supreme Court in this case, then the reader will have to necessarily assume that Judge Graham is too stupid to know the law or is not competent. Judge Graham is many things, but not stupid and incompetent. This post will demonstrate that Judge Graham is arrogant and reckless. Defenders of Judge Graham who would say that his behavior has not been willful in this matter would have to make the following assumptions:

  • Well established legal principles that Judge Graham is legally presumed to know the law is not applicable in this matter.
  • Judge Graham, a federal Judge since 1992, has not read or is not otherwise familiar with the Eleventh Circuit’s or any of the other U.S. Circuit Court of Appeals opinions on pre-filing injunctions. Inherent in this assumption, you would also have to include the notion that Judge Graham who has free access to legal research services, Westlaw, Lexis Nexis, and host of free Internet Services such as Lexisone, Findlaw, and others, does not have access to the law. You would also have to assume, incorrectly, that the S.D. Fla. does not have a law library.
  • Judge Graham does not know that the right of access to the courts is constitutionally protected.
  • Judge Graham, a federal Judge since 1992, has not read or is not otherwise familiar with any of the Supreme Court’s many decisions dealing with the right of access to the courts
  • Judge Graham, a federal Judge since 1992, has not read or is not otherwise familiar with any of the Supreme Court’s many decisions dealing with due process.

The Supreme Court Says that A Judgment Issued in Violation of Due Process is Void

“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). “A void judgment is from its inception a legal nullity.” Boch Oldsmobile, at 909 F.2d 657, 661 (1st Cir. 1990). Lops v. Lops, 140 F.3d 927, 941 n. 19 (11th Cir. 1998) (“something that is null has no legal or binding force.”); Carter v. Fenner, at 136 F.3d 1000 (5th Cir. 1998)(“[a] void judgement is one which, from its inception, was a complete nullity and without legal effect.”). “Courts are constituted by authority, and they cannot go beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal.” Valley v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 354 (1920).

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.“).

Proof No. 1

A judge is legally presumed to know the law. U.S. v. HUMPHREYS (11th Cir. 1992). “Trial judges are presumed to know the law…” WALTON v. ARIZONA, 497 U.S. 639 (1990). The Eleventh Circuit and other courts are quick to assert this fact when a judge does not affirmatively address an aspect of law in a decision or opinion. Given this presumption, there is no reason not to apply it to this situation.

Proof No. 2

The best evidence that Judge Grahams knows that the right of access to the courts is constitutionally protected is Judge Graham’s own writing in the very sua sponte issued prefiling injunction of September 20, 2001. In this order, Teflon Don states:

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.

See pg. 7, Docket No. 878, (D.E. #878).

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).

Proof No. 3

Judge Graham knows that a constitutionally protected right is subject to due process. RODRIGUEZ v US, 169 F.3d 1342 (11th Cir. 1999) was a case about due process in which Judge Donald L. Graham presided over at the district court level, Case No. 97-1182-CV-DLG. See Findlaw.com, vlex.com. RODRIGUEZ cites Mathews v. Diaz, 426 U.S. 67 (1976)(“all persons, aliens and citizens alike, are protected by the Due Process Clause). It is crystal clear that Judge Graham knows of the Supreme Court’s definition and affinity for due process. Even more compelling evidence that Judge Graham knew the law is Judge Graham’s own writings. At pages 6 and 7, of the sua sponte issued pre-filing injunction, (DE #878), Judge Graham cites three cases for his nefarious deeds: Copeland v. Green, 949 F.2d 390 (11th Cir. 1991); Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986)(en banc)); Cofield v. Alabama Pub. Serv. Comm’n, 936 F.2d 512, 518 (11th Cir. 1991). In Copeland v. Green, 949 F.2d 390 (11th Cir. 1991) the court lays out the procedure followed by the trial court or district court prior to issuing a pre-filing injunction. In Copeland, the court noted: “The district court entered an order requiring Copeland to appear and show cause why he should not be sanctioned for this abuse of his access to the court.” It is quite clear that the litigant in Copeland received notice and opportunity to respond prior to the issuance of the pre-filing injunction. Judge BARD TJOFLAT’s dissent in Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986)(en banc)), “The district court, noting the volume and nature of Procup’s previous litigation, issued an order to show cause why an injunction should not issue prohibiting Procup from filing any further pleadings in the district court.” Lastly, in Cofield v. Alabama Pub. Serv. Comm’n, 936 F.2d 512, 518 (11th Cir. 1991) the court noted that “the district court, sua sponte, issued an order to show cause asking why Cofield should not be sanctioned for his overly litigious behavior.” What better evidence of willfulness than Judge Graham’s own writings!

Proof No. 4

Judge Graham presided over Damiano v. Federal Deposit Insurance Corporation, 104 F.3d 328 (11th Cir. 1997) in S.D. Fla. Case No. 90-8415 CIV-DLG. See Findlaw.com. This case in no small part addresses itself to due process and the Supreme Court’s landmark case on the sufficiency of due process, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317-20 , 70 S.Ct. 652, 658-60, 94 L.Ed. 865 (1950). This opinion expressly cites Mullane. Consequently, it can not be argued that Judge Graham is not aware of the requirements of due process unless you assume that Judge Graham does not read his own cases.

Proof No. 5

Judge Graham played to what he thought was ignorance on the part of Marcellus Mason. Judge Graham cites a host of different cases to support the idea that he can restrict the filings of a litigant. Judge Graham is very slick and he knew that Mason had acquired the ability to do legal research when he rendered the sua sponte issued pre-filing injunction, consequently Judge Graham made a conscious decision not to cite any any of the cases listed below that deal specifically with pre-filing injunctions . The cases cited by Judge Graham do not address pre-filing injunctions specifically. Peck v. Hoff, 660 F.2d 371 (8th Cir. 1981) is concerned with procedures for denying in forma pauperis. Incidentally, Judge Graham has defied the U.S. Supreme Court by defying in forma pauperis motions on some 18 occasions by refusing to offer a legally sufficient reason for these denials. See this site, post “Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts“. In re McDonald, 489 U.S. 180, 184 n.8 (1989), this citation stands for the proposition of inherent power generally and not the procedures in involved in invoking “inherent power”. Martin Trigona v. Shaw, 986 F.2d 1384, 1387 (11th Cir. 1993) this case deals with the authority to issue a pre-filing injunction, but not with the procedures for imposing an injunction, Cope v. Green, 949 F.2d 390 (11th Cir. 1991), Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986)(en banc)) ,

Proof No. 6

Judge Graham claims that he has inherent power to render a pre-filing injunction. See pgs. 6,7 (D.E. #878). 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., 501 U.S. 32, 50 (1991). Are we to believe that a federal judge who relies upon “inherent power” to issue an order is unaware of Supreme Court’s Chambers opinion? At the latest, Judge Graham would have became aware of Chambers would have been on October 16, 2002 when the Eleventh Circuit rendered their opinion and actually cited Chambers. See Appeal From Hell Opinion, pg. 10. As stated above, this appeal is joke and an exercise in artifice and dishonesty. See “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“. What has stopped Judge Graham from coming forward and admitting error?

Proof No. 7

Judge Graham has had numerous filings and documents since the institution of the sua sponte issued pre-filing injunction of September 20, 2001 that expressly quotes and cites the United States Supreme Court and others, but yet Teflon Don has been intransigent and has sat on his ass and did nothing. One of these filings was a judicial misconduct complaint, 05-0011 that was submitted January 31, 2005. This complaint specifically mentions Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991). On or about February 5, 2005, Judge Graham received a Petition for Writ of Mandamus in Eleventh Circuit Case No. 05-10623 that specifically mentions Chambers and a host of other legal authorities setting forth the due process requirements involved in issuing pre-filing injunctions. See pages 8-10, Petition for Writ of Mandamus. On or about February 13, 2004, Judge Graham received a Petition for Writ of Mandamus in Eleventh Circuit Case No. 04-11894 that specifically mentions Chambers and a host of other legal authorities setting forth the due process requirements involved in issuing pre-filing injunctions. See pages 11-15, Mandamus Petition. Judge Graham is in possession of a letter that mailed to him on May 3, 2008 that specifically sets forth Supreme Court requirements with respect to due process and the right of access to the courts and as of this date, May 31 2008, Judge Graham has refused to comply with the decisions and orders of the Supreme Court. On September 7, 2002, Judge Graham received a “MOTION TO PROCEED IN FORMA PAUPERIS AND SUPPORTING AFFIDAVIT, PLAINTIFF’S MOTION TO DISQUALIFY, PLAINTIFF’S DEMAND TO RESCIND INJUNCTION FORTHWITH, AND PLAINTIFF’S MOTION FOR PUBLICATION“, (D.E. 914). At pages 10-14, this motion specifically sets forth the legal requirements for issuing a pre-filing injunction and for invoking the “inherent power” of the court according to the United States Supreme Court. On January 31, 2003, Judge Graham rejected the authority of the United States Supreme Court. See (D.E. #928).

Enabling Acts of the Eleventh Circuit

Judge Graham and his enablers at the Eleventh Circuit, U.S. Court of Appeal see nothing wrong with Judge Graham disrespecting the United States Supreme Court. In what can only be described as a pure act of artifice and dishonesty, the Eleventh Circuit struck Marcellus M. Mason’s brief in a direct appeal, Case No. 01-13664, for arguing that the sua sponte issued pre-filing injunction of September 20, 2001 was not lawful because they said it was “beyond the scope of appeal”; however, when the Eleventh Circuit decided the appeal it then used the same sua sponte issued pre-filing injunction of September 20, 2001 to affirm Judge Graham. Equally remarkable is the fact that the Eleventh Circuit was quite unwilling to pass on the validity of this very same sua sponte issued pre-filing injunction of September 20, 2001. See full story at “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“. This a remarkable opinion that mocks the idea of “judicial independence”.

Judge Graham criminalized his own his disrespect and contempt for the United States Supreme Court by making the same sua sponte issued pre-filing injunction of September 20, 2001 the subject of a criminal contempt complaint. The Eleventh Circuit knew of this concocted criminalization and disdain for the United States Supreme Court by Teflon Don, but yet it sat idly by and did nothing while the clearly void sua sponte issued pre-filing injunction of September 20, 2001 being used to persecute and oppress Marcellus Mason. The Eleventh Circuit has deployed acts of artifice and dishonesty to avoid reviewing the sua sponte issued pre-filing injunction of September 20, 2001 for validity. See post this site, “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life“.

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).

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).

U.S. Dist. Judge William P. Dimitrouleas Reversed While Colleague Judge Donald L. Graham Affirmed by Killing The Appeal

May 1, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

It is hard not to conclude that Judge Donald L. Graham is more valued than his colleagues at the Southern District of Florida when Judge Graham “teflon don” is affirmed on appeal while his colleagues at the S.D. Fla. are reversed. This is the third of three posting on this site where this has happened. Judge Daniel T. K. Hurley met a similar fate. See posting this site, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge“, ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal“, and “Judge Graham Disagrees With The Fifth Circuit, U.S. Court of Appeals”. In each case the Eleventh Circuit chose to deploy an unpublished opinion to affirm and protect Judge Graham while his colleagues suffered reversals in published opinions. It is difficult to see how such a system advances the notion of equal justice. It would seem that justice is a function not of the “rule of law”, but of whether or not the judge is favored by the appellate courts.

U.S. Dist. Judge William P. Dimitrouleas was reversed on appeal by the Eleventh Circuit for Imposition of Sanctions beyond the litigant’s ability to pay. During the same time period, Judge Dimitrouleas’ colleague, U.S. Dist. Judge Donald L. Graham, “Teflon Don”, awarded $200,000 in attorneys’ fees against an indigent who was proceeding in forma pauperis but was nevertheless affirmed on appeal by the Eleventh Circuit. Judge Graham was affirmed by what can only be described as a very pernicious act in that the Eleventh Circuit affirmed Judge Graham by denying the indigent litigant the right to an appeal the mammoth award of $200,000 in forma pauperis. Moreover, the Eleventh Circuit had to take the following extreme measures to keep from reversing “Teflon Don” in the underlying merits appeal, Case No. 01-13664:

  • The Eleventh Circuit, though admittedly briefed, failed to review for validity the very orders that were used by Judge Graham to justify dismissal of the case under Fed.R.Civ.P. 41(b). See Documents Nos. 201 and 246. The Eleventh Circuit was quite willing to discuss violations of these orders, but not their validity. See Post, “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity
  • The Eleventh Circuit, though admittedly briefed, failed to review the issue as to whether or not Judge Graham should have disqualified or not. See post,”Are Allegations of Misconduct Reviewable on Appeal?
  • The Eleventh Circuit struck Mason the Appellant/Plaintiff’s brief for arguing an order that it deemed beyond the scope of appeal and then turned around used the very same order to affirm Judge Graham. “Putrid Dishonesty:Beyond the Scope of Appeal”

    The On Law Imposing Sanctions Beyond Litigant’s Ability to Pay

    Attorneys fees awards may not bankrupt a party. “A court should refrain from imposing a monetary award so great that it will bankrupt the offending parties or force them from the future practice of law.Baker v. Alderman, 158 F.3d 516 (C.A.11 (Fla.), 1998).

    Sanction orders must not involve amounts that are so large that they seem to fly in the face of common sense, given the financial circumstances of the party being sanctioned. What cannot be done must not be ordered to be done. And, sanctions must never be hollow gestures; their bite must be real. For the bite to be real, it has to be a sum that the person might actually pay. A sanction which a party clearly cannot pay does not vindicate the court’s authority because it neither punishes nor deters. MARTIN v. AUTOMOBILI LAMBORGHINI EXCLUSIVE, INC., 307 F.3d 1332 (11th Cir. 2002).

    Judge Dimitrouleas

    In Martin v. AUTOMOBILI LAMBORGHINI EXCLUSIVE, INC., Judge Dimitrouleas had his decision to award sanctions against litigants vacated because it was beyond the litigants ability to pay. The court advised that “when exercising its discretion to sanction under its inherent power, a court must take into consideration the financial circumstances of the party being sanctioned.

    Judge Graham Affirmed For An Even More Egregious Violation

    This post will only address the narrow legal point that attorney’s fees can not be awarded if they bankrupt the Plaintiff or the Plaintiff has no ability to pay. The underlying merits of the lawsuit is fully discussed at the Attorneys’ Fees Webpage. The only legal point being raised here is that the district court can not make such a grotesque award even if a Plaintiff’s lawsuit was totally frivolous, which this clearly was not the case, given the financial insolvency of Mason. Judge Graham knew that Mason was proceeding as an indigent having been awarded in forma pauperis status, “IFP” to initiate the lawsuit. See Docket Entry No. 3. Moreover, it was Judge Graham and his Magistrate, Frank Lynch Jr., who said: “it does not appear as though the Plaintiff has any financial ability to pay any attorney’s fees which may be assessed against him in this case.Docket Entry No. 882, pgs. 6-7.
    Even more egregious, this award based upon a “bad faith finding” in a sua sponte issued pre-filing injunction. It is well settled that a “bad find” finding and pre-fling injunctin both require due process or notice and opportunity to respond prior to its according to both the United States Supreme Court and the Eleventh Circuit, U.S. Court of Appeal. However, Judge Graham has defied both of these courts as it refused to give Mason any notice, see this site’s post “Florida Judge Thumbs His Nose at U.S. Supreme Court Rulings on Due Process And Attorneys’ Fees” and “Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts“.

    Eleventh Circuit Sticks In The Knife

    Making this massive award even more pernicious, Judge Charles R. Wilson, Eleventh Circuit, U.S. Court of Appeal ruled that it was “frivolous”, without stating why, to appeal this massive award. See this site, post entitled “Judge Wilson Rules Appeal Of Award $200,000 Fees Frivolous“. On October 17, 2002, while denying a motion for clarification, the Eleventh Circuit, for the second time, asserted that it was frivolous to file an appeal of a $200,000 award in attorney’s fees. See Order dtd Oct. 17, 2002. The bottom line is that Mason never got a chance to fight of this judgment.

Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham

April 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 U.S. Supreme Court once said: “But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” Hutto v. Davis, 454 U.S. 370 (1982). This post is a yet another perfect example of how the “unpublished” Opinion is used to defy the authority of the United States Supreme Court. What is clear from this post is that if the Eleventh Circuit, U.S. Court Of Appeal, does not like the facts or the law involved in a case, it will simply make a terse one sentence “opinion” ignoring both the facts and the law. “The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See “Opinion“, Case No. 01-15754. In this matter, Case No. 01-15754, the Eleventh Circuit declined to honor a petition for mandamus as a notice of appeal and perform meaningful appellate review as required by the U.S. Supreme Court. The petition attacks a sua sponte issued pre-filing injunction that was rendered on September 20, 2001 and excoriates Judge Graham for his misconduct and mismanagement. It is no wonder that Judge Graham feels that he is above the law and that he is the “Teflon Don”.

In addition, on a parallel track, a direct appeal, Case No. 01-13664, is already pending when Judge Graham renders the sua sponte issued pre-filing injunction of September 20, 2001. The handling of this matter yields even more dishonest and evasive measures.

  • The Eleventh Circuit struck Mason’s appellate brief for arguing against the sua sponte issued pre-filing injunction of September 20, 2001 because they claimed it was “beyond the scope of appeal”. However, when the Eleventh Circuit rendered its opinion affirming Judge Graham it then used the same sua sponte issued pre-filing injunction to affirm Judge Graham. See full story of this despicable act at this site, post entitled, “Putrid Dishonesty:Beyond the Scope of Appeal
  • The Eleventh Circuit refused to test the allegations of misconduct leveled at Judge Graham for veracity, even though admittedly fully briefed, it declines to review the issue of whether or not Judge Graham abused his discretion by failing to disqualify. See full story, this site, post entitled, “Are Allegations of Misconduct Reviewable on Appeal?

The Eleventh Circuit had to make a choice. It could save Judge Graham from his record, or it could follow binding precedent as set forth by the United States Supreme Court. It chose to save Judge Graham from the consequences of his own misbehavior and hubris. Is the Eleventh Circuit free to ignore the edicts of the United States Supreme Court?

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

United States Supreme Court

A document intended to serve as an appellate brief may qualify as the notice of appeal required by Rule 3. So long as such a document is filed within the time allowed by Rule 4 for a notice of appeal and satisfies Rule 3(c)’s requirements as to the content of such a notice, it may be treated as the “functional equivalent” of the formal notice demanded by Rule 3.” SMITH v. BARRY ET AL. 502 U.S. 244 (1992) (Syllabus). See also Eleventh Circuit’s Finch v. Vernon, 845 F. 2d 256, 259-260 (11th Cir. 1988) (citing United States v. Rogers, 788 F.2d 1472, 1475 (11th Cir.1986) (notice of appeal requirement is satisfied by any statement clearly evincing the party’s intent to appeal); Yates v. Mobile County Personnel Board, 658 F.2d 298, 299 (5th Cir. Unit B Oct. 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 … and is thus generally ignorant of procedural rules.”).”).

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. 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.

If a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.“); Rinaldo v. Corbett, 256 F.3d 1276, 1279-80 (11th Cir.2001)To perform its function a notice of appeal must specify the parties taking the appeal, designate the judgment or order being appealed, and name the court to which the appeal is being taken. Fed. R.App. P. 3(c)(1). That is all.Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228 (11th Cir. 2007).

The Defendant, Highlands County Board of County Commissioners, and U.S. Dist. Judge Donald L. Graham also received a copy of the mandamus petiton. 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.

Basis of Mandamus or Appeal

On September 20, 2001, Judge Graham rendered a pre-filing injunction, sua sponte, against Marcellus Mason. See Document No. 878. This type of order is also referred to as “Vexatious Litigant injunction“, “pre-screening injunction”, and “leave to file injunction”. This order specifically states: “THIS CAUSE came before the Court sua sponte.” See Document No. 878, pg. 3. There is a string of U.S. appellate courts and state courts, including Florida and Georgia that have declared sua sponte issued pre-filing injunctions issued without notice and opportunity to respond to be invalid. See Case Law On Pre-Filing Injunctions Section, Judge Graham Disagrees With The 1st, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, And DC Circuit Courts Of Appeal.

A mandamus petition was docketed as being received on October 2, 2001 by the Eleventh Circuit. See Receipt. This petition attacks the sua sponte issued pre-filing injunction of September 20, 2001. This petition also excoriates Judge Graham and takes him to task for the following:

  • Graham has usurped the power of law enforcement.
  • Graham has usurped the power of the “Legislature.”
  • Graham improperly interjected himself into matters under the Florida Public Records Act.
  • Grant has allowed significant and material pretrial motions to languish in the Court without making a decision. Petitioner will show that Graham has allowed motions and appeals to go for months without being addressed. Petitioner will show that Graham has granted summary judgments without addressing filings by this Petitioner, which attacks the summary judgment. Graham has repeated refused to rule on the Petitioner’s Motions For Summary Judgment.
  • Graham has had Petitioner’s Motion for a Preliminary Injunction to languish in his Court and die on the vine without a ruling on the merits, despite the fact that the motion has been pending since November 24, 1999.
  • Graham has failed to conduct proper “de novo” reviews when required. Graham has effectively undermined the will of Congress by allowing a Magistrate Judge to decide dispositive matters without the express authorization of all the parties. The Magistrate Judge has been granted “de facto” dispositive authority by Graham.
  • Graham has been dishonest in claiming that matters have been litigated when they have not been litigated.
  • On numerous occasions, Graham has exercised judicial authority without explaining the law and the facts that underlie his decisions. In this respect Graham has made a host of arbitrary and capricious decisions.
  • Graham has been guilty of gross mismanagement and malfeasance in every case to which this Petitioner has been a party to.

See Petition For Mandamus, pgs. 3,8-12,18-23.

Is The Eleventh Circuit An Advocate for 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.

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

Personal Responsibility and Integrity of the Judges

On February 6, 2004, Judge Stanley Marcus, Judge Rosemary Barkett, and Judge Susan Black were sent a letter via U.S. certified mail informing them of the legal atrocities in this matter. See Letter. However, all declined to answer or take the appropriate legal action as required by the United States Supreme Court.


Judge Graham Misstates Material Facts and Law To Support Pre-Filing Injunction

April 27, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Should Judges Be Allowed to Intentionally Misrepresent Material Facts With Impunity?

This post will examine an order rendered by U.S. Dist. Judge Donald L. Graham, “Teflon Don”. The order at issue is a pre-filing injunction or a vexatious litigant injunction that was issued by Teflon Don, sua sponte on September 20, 2001. Though not the point of this post, but it is well settled that a sua sponte issued pre-filing injunction is invalid because it violates due process, or notice and opportunity to respond prior to its issuance. For more discussion and case law on sua sponte issued pre-filing injunctions, see post this site entitled “Judge Graham Disagrees With The 1st, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, And DC Circuit Courts Of Appeal. The importance of “notice and opportunity to respond” will become readily apparent upon reading this post. Mason actually filed two lawsuits, Case No. 99-14027 and 01-14230; neither of which Judge Graham himself adjudged to frivolous. The purpose of this post is to demonstrate a dishonest tactic used by judges to reach the desired outcome. This post will discuss and document the act of intentionally misstating material facts. Lastly, this post will examine whether intentionally misstating material facts, a despicable and dishonest act, is considered judicial misconduct. Judge Graham has been guilty of outright lying before by intentionally misrepresenting the law to Mason. See Liar 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

The Misstated Fact and Misrepresentation

Judge Graham stated that Marcellus Mason filed eleven lawsuits. He then uses inference to suggest that Mason filed eleven lawsuits that lacked merit. As will be proven below, Teflon Don’s words do not match reality because:

  • Mason actually filed one lawsuit at the instance of the pre-filing injunction on September 20, 2001. Technically this one lawsuit was four lawsuits consolidated into one lawsuit in the very early pre-discovery stages at a time when the pro se Plaintiff was unaware of the rules regarding amending complaints.
  • Judge Graham actually counts a lawsuit filed by the Defendant, Highlands County, as a lawsuit filed by Mason. The irony is that the Defendant, Highlands County, filed a lawsuit seeking a prefiling injunction which Judge Graham rejected in February 2001 or just six months before he rendered the filing injunction, sua sponte, of September 20, 2001. Mason initiated no new lawsuits between February 2001 and September 20, 2001.
  • Judge Graham counts five lawsuits in the eleven lawsuits that he claims Mason “filed” where Judge Graham declined to allow Mason to initiate a lawsuit by simply denying in forma pauperis motions without stating a reason for denying the motion. According to Judge Graham’s own definition of “filing”, a lawsuit is not filed until the filing fee is paid. Moreover, Judge Graham has a documented history of denying in forma pauperis motions without stating a reason having done it to Mason 18 times. See IFP History.
  • Judge Graham does not state that he declined to reach the merits of the lawsuit that was filed because he declined to pass upon summary judgment motions that were submitted by the Plaintiff and Defendants. See Docket for pending summary judgment motions. (Doc. 507); (Doc. 667); (Doc. 668); (Doc. 706); (Doc. 797);(Doc. 769);(Doc. 770). Judge Graham chose to dismiss the lawsuit because of alleged hostile and irrelevant out court communications between Mason and Highlands County. See below, “The Dismissed Lawsuit”.
  • In a docket that contains almost one thousand entries, Judge Graham fails to cite one single motion that Mason filed in the case that lacked merit. Rule 11, Fed.R.Civ.P. is designed to punish and deter litigants from filing “frivolous” filings or motions. “Federal Rule of Civil Procedure 11 provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support.” Lectlaw.com.
  • Judge Graham fails to disclose that his mere speculations about Mason’s motive in filing a lawsuit is immaterial as a matter of law. Consequently, even if Judge Graham was a soothsayer and could somehow prove that Mason had a bad motive in filing a lawsuit, such a motive is not a defense to a well grounded lawsuit.

The Misstated and Misleading “Facts”

In order to justify his pre-filing injunction, Judge Graham made the following statements.

Plaintiff Marcellus M. Mason (“Mason”) has filed eleven (11) cases and/or counterclaims in this District, all against either the Highlands County Board of County Commissioners, the Highland Library Cooperative and/or various board members or employees of the County and Library. (collectively the “Defendants”). Each case relates to his prior employment by Defendants and Defendants’ treatment of Mason after his termination.

Docket Entry No. 878, pps. 3-4.

Mason’s original action against Defendants was case no. 99-14027. (the “Original Action”). After vexatious and relentless litigation on the part of Mason, 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 Entry No. 878, pps. 3-4.

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.

Docket Entry No. 878, pg. 5.

The True Amount of Lawsuits Filed

At pages 1, 2, and 3 of Judge Graham’s sua sponte issued pre-filing injunction, he attempts to list (11) eleven lawsuits that he claims were filed in the S.D.Fla. by Marcellus Mason. See Docket Entry Number 878. According to Judge Graham himself, ” A Complaint is not considered filed until the filing fee is paid.” See 00-14202, (DE #10, dtd. 11-2-2000); 00-14201, (DE #10, dtd. 11-21-2000). Five of these lawsuits had no filing fee paid, and according to Judge Graham, not filed:

These 5 lawsuits were dismissed without prejudice and are “non-suits” simply because Judge Graham denied Mason in forma pauperis status and stated no reason for this denial. Judge Graham has a history of arbitrary denials of in forma pauperis motions, having done it to Mason 18 times without stating a reason. See IFP History.

Of the 6 remaining lawsuits that Judge Graham claims was filed by Mason, Case No. 14240-CV-Graham was actually filed by Highlands County against Mason. Mason even prevailed on this lawsuit as on January 16, 2001, Judge Graham and his Magistrate Frank Lynch, Jr. concluded:

However, at this point, none those other cases have totally dismissed with prejudice. There are viable claims pending in those cases. * * * While there are other pending cases between these parties, there is nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look for justifying injunctive relief.

Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01).

Of the five remaining lawsuits, Case No. 01-14230-CV-Graham, was removed from state court by the Defendants after the injunction of September 20, 2001 where they knew the case would be automatically assigned to Judge Graham. Judge Graham improvidently dismissed this case because of an improperly granted res judicata application. Judge Graham asserts that the claims in this lawsuit was due to be dismissed because of a prior lawsuit, Case No. 99-14027-CV-Graham. Case No. 99-14027-CIV-Graham/Lynch was filed on February 4, 1999. See Docket Entry No. 1. This lawsuit, Case No. 01-14230-CV-Graham, asserts claims due to Highlands County continuing violations of Mason’s rights by issuing a series “No Tresspass Warning” to Mason every six months, 6-30-99, 12-30-99, and 6-26-00, thereby prohibiting Mason from using the Sebring Public Library. See Complaint, Document No. 1, pgs. 24, 25, 29. If you read the Complaint and Exhibits, you will discover that Highlands County issued three “No Tresspass Warning” to Mason after the prior lawsuit, Case No. 99-14027 was filed on February 4, 1999. Judge Graham’s application of res judicata evinces two absurdities. Firstly, in order to apply res judicata to Case No. 01-14230-CV-Graham those claims would have to have existed on February 4, 1999 when the former lawsuit Case No. 99-14027 was filed. This would have been impossible for claims that did not exist until 6-30-99, 12-30-99, and 6-26-00. Judge Graham is of the apparent belief that Highlands County may commit any tortious or illegal act against Mason and not be sued because of this case. In a word, Judge Graham has immunized Highlands County against all future lawsuits brought by Mason. Judge Graham has taken this errant view of the law elsewhere against Mason . See post this site, “Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata“.

Lastly, of the remaining “filed” four lawsuits, Case Nos. 99-14042-CV-Graham, 99-14257-CV-Graham, 99-14314-CV-Graham were consolidated into one case, 99-14027-CV-Graham.

Information regarding the nature of these lawsuits is fully set forth in html form or Microsoft Word.

Honesty and Judicial Opinion Writing

Thesis: A judge’s opinion should accurately portray the facts. A judge’s honesty and integrity lie at the very heart of that system. In re Shenberg, 632 So. 2d 42, 47 (Fla. 1992).

Legal Experts State that Judge’s Opinions Often Don’t Reflect Reality

There is one form of judicial misconduct that I think clinches the case against Judge Edwards’ position: lack of candor in judicial opinions. One of the worst things a judge can do is to ignore or misstate the critical facts or critical legal issues in a case. Since this kind of misconduct is not generally considered a “crime” nor an impeachable offense, it would fall squarely within the realm of judicial misbehavior that Judge Edwards leaves to the judiciary to regulate..
Professor Monroe Freedman:
Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

Self-Regulation of Judicial Misconduct Could be Mis-Regulation, 89 Michigan Law Review 609 (1990). (Code A90N).

Judicial Misconduct

A feature of this blog is describing conduct that Chief Judge J.L. Edmondson, Eleventh Circuit, and others, do not consider to be judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. §§ 351-364. This posting will demonstrate that federal judges can intentionally misstate material facts or outright lie with near absolute impunity. Chief Judge J.L. Edmondson, and others, assert that such acts, even if true, do not constitute judicial misconduct. See Complaint of Judicial Misconduct No. 05-0020. Moreover, according to Judge J.L. Edmondson’s interpretation of the law, even if Judge Graham were involved in a pattern and practice of total disregard for clearly established law and binding precedent such behavior would still not rise to the level of judicial misconduct. Judge Edmondson’s interpretation also holds that the the aggregate of individual acts does not constitute judicial misconduct. See Complaint of Judicial Misconduct No. 05-0011. For More Support, Complaint Nos. 05-0008, 05-0012, 05-0013, 05-0020, 05-0021. Switching vernacular for the moment, according to Judge Edmondson there aint no judicial misconduct.

Judge Edmondson seems to disagree with his own Judicial Conference who has clearly stated that a pattern and practice intentionally disregarding clearly establish law could be misconduct.

[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.

http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf :Pg. 8.

Judicial Independence advocates state:

Appellate courts serve as a moderating influence by correcting mistakes made by lower courts. The very function of appellate courts also encourages lower courts to adhere to closely to the law and applicable precedents: If a trial court judge knows that an appellate court is likely to reverse a certain decision, she is less likely to stretch the boundaries of the law.

Constitution Project, THE NEWSROOM GUIDE TO JUDICIAL INDEPENDENCE

If the Constitution Project is correct, then Teflon Don should have suffered a reversal on appeal. However, this is not what has happened as the Eleventh Circuit has aggressively fought off all attempts at appellate review of the sua sponte issued pre-filing injunction at issue. See APPELLATE HISTORY: AN EXERCISE IN FUTILITY. Aided by the “unpublished” opinion, the Eleventh Circuit has raised trickery, artifice, and chicanery to new heights or new lows depending upon your point of view. The clear intent of the Eleventh Circuit is not to ever pass on the validity of this sua sponte issued pre-filing injunction and reverse Teflon Don. The Eleventh Circuit has done the schiester lawyer proud.

LEGAL REQUIREMENTS OF PRE-FILING INJUNCTIONS

“[B]efore a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court to make “substantive findings as to the frivolous or harassing nature of the litigant’s actions… To make such a finding, the district court needs to look at “both the number and content of the filings as indicia” of the frivolousness of the litigant’s claims.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). See May vs. Shell Oil Company, 2000 U.S. Dist. LEXIS 14786, *7 (S.D. Fla. 2000)(“courts have a duty to ensure that frivolous or meritless lawsuits do not interfere with their constitutional function:”)[1]; Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985)(holding that an injunction’s purpose is to fashion a remedy to stem the flow of frivolous actions);Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989)(“Litigiousness alone will not support an injunction restricting filing activities.”); Ruderer v. United States, 462 F.2d 897, 899 (8th Cir. 1972) (“affinity for litigation, standing alone, would not provide a sufficient reason for issuing such an injunction.”).

Nowhere in the sua sponte issued pre-filing injunction does it identify one single lawsuit that Mason filed that was frivolous. As a matter of act, Judge Graham is precluded by law from asserting that D.C. Case No. 99-14027-CV was without merit because Judge Graham refused to rule on pending summary judgments by both Highlands County and Mason. A court does not have the duty to protect itself from non-frivolous litigation. It is not unlawful to prosecute a meritorious action. See Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). “ Access to the courts is a fundamental tenet of our judicial system; legitimate claims should receive a full and fair hearing no matter how litigious the plaintiff may be.” In re Oliver, 682 F.2d 443, 446 (3rd Cir. 1982). It was Judge Graham himself who adopted the following: “However, at this point, none those other cases have totally dismissed with prejudice. There are viable claims pending in those cases. * * * While there are other pending cases between these parties, there is nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look for justifying injunctive relief.” Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01). Furthermore, at no time during any litigation that Mason was involved in did Judge Graham impose any Fed.R.Civ.P. Rule 11 sanctions or threaten to do so for filing motions that lacked a substantial basis.

Importance of Motive in Filing a Lawsuit

“[A}n objectively reasonable effort to litigate cannot be sham regardless of subjective intent.” Professional Real Estate Investors, Inc.,v. Columbia Pictures (91-1043), 508 U.S. 49 (1993). see also Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983)(“The filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the Act.”). “Hostility between parties or their counsel ought not to invalidate a lawsuit brought to obtain proper legal relief for potentially meritorious claims.” Colombrito v. Kelly, 764 F.2d 122 (2nd Cir. 1985). “The rule generally prevailing is that, where a suitor is entitled to relief in respect to the matter concerning which he sues, his motives are immaterial; that the legal pursuit of his rights, no matter what his motive in bringing the action, cannot be deemed either illegal or inequitable; and that he may always insist upon his strict rights and demand their enforcement.” Johnson v. King-Richardson Co., 36 F.2d 675, 677 (1st Cir. 1930) see also MASTERSON et al.v.PERGAMENT, 203 F.2d 315 (Sixth Cir. 1953)(“The motive of the stockholder in filing a derivative action is immaterial.”). “Courts will generally not inquire into the motives which actuate the plaintiff in bringing his action, if he has a legal right which he seeks to protect. It is no defense to a valid cause of action that the motive or ulterior purpose of the plaintiff in bringing the suit is based on animosity or malice. Where the plaintiff shows a right to the relief sought, it is immaterial that he is seeking it for purposes other than the ascertainment and enforcement of the rights which he relies.” 1 Fla. Jur. 2d, Actions, Section 29, Page 289. See also CHI., R.I. & PAC. RY. v. Dowell, 229 U.S. 102, 114 (1913) (“If the plaintiff had a cause of action which was joint and had elected to sue both tort-feasors in one action, his motive in doing so is of no importance.”); Chi., Rock Island RY. v. Whiteaker, 239 U.S. 421, 424-5 (1915) (“ the motive of plaintiff, taken by itself, does not affect the right to remove” and that “if there is a joint liability he has an absolute right to enforce it, whatever the reason that makes him wish to assert the right.“).

The Dismissed Lawsuit, Case No. 99-14027-CIV-Graham/Lynch

Judge Graham states he dismissed a case because of Mason’s “repeated refusal to comply with the Court’s rules and orders“. Case No. 99-14027-CIV-Graham/Lynch was filed on February 4, 1999. See Docket. This was an employment discrimination lawsuit based upon Marcellus Mason’s termination by Highlands County Board of County Commissioners and Heartland Library Cooperative in November 1998. The case was dismissed, not on the merits of the case, but based upon banned and irrelevant out of court communications between Highlands County and Mason. See Report and Recommendation,”R&R” (D.E. 766), Order adopting R&R (D.E 791). This case was an involuntary dismissal pursuant to Rule 41(b), Fed.R.Civ.P. due to Mason’s alleged violations of the following orders issued in this case on June 19, 2000, (DE #201), and July 25, 2000, (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 #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.

Incidentally, Mason has maintained that these orders are invalid because they violate the First Amendment, Tenth Amendment, and Magistrate’s Act, 28 U.S.C. § 636(b)(1)(a)(Magistrate may not issue an injunction); however, the Eleventh Circuit has declined to review these orders for validity on multiple occasions. See posting, Eleventh Circuit Repeatedly Refuses To Review Orders For Validity. In a later filed lawsuit, Judge Graham’s Magistrate admitted: the court “dismissed the remaining claims on their merits as sanction for the continued communication of antagonistic emails directly to the defendants in contempt of this Court’s orders“, Case No. 01-14310, (DE #79).

Judge Graham could have decided the case on the facts but he didn’t. On June 20, 2001, when Judge Graham dismissed this case, both the Plaintiff and the Defendants had summary judgment motions pending that the district court failed to act on. (DE # 507); (DE # 667); (DE# 668); (DE # 706);(DE # 797);(DE # 769);(DE # 770);(DE #785). See Complete Docket Listing.

Judge Graham Disagrees With The 1st, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, And DC Circuit Courts Of Appeal

April 25, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

It is not surprising that Judge Graham, “Teflon Don“, a district judge, would disagree with the First, Second, Third, Fourth, Fifth Circuit, Ninth, Tenth, and Eleventh U.S. Court of Appeal because Judge Graham has similarly disagreed with the United States Supreme Court. See Postings this site, Florida Judge Thumbs His Nose at U.S. Supreme Court Rulings on Due Process And Attorneys’ Fees and Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts. Similarly, Teflon Don has disagreed with the Fifth Circuit’s holdings on Prior Restraints and Injunctions. See “Judge Graham Disagrees With The Fifth Circuit, U.S. Court of Appeals“. In this post, Judge Graham issues a pre-filing injunction, sua sponte. Sua Sponte is: (“Latin for “of one’s own accord; voluntarily.” Used when the court addresses an issue without the litigants having presented the issue for consideration.” Legal Information Institute.) Judge Graham did not give Mason, the litigant, notice and opportunity either before or after he rendered this pre-filing injunction. It is black letter law that the litigant must be given notice and opportunity to respond or due process, prior to the issuance of any pre-filing injunction. Judge Graham summarily dismisses this notion with the greatest of ease. Teflon Don is a bad mother-shut your mouth!

Pre-Filing Injunction

On September 20, 2001, Judge Graham rendered a pre-filing injunction, sua sponte, against Marcellus Mason. See Document No. 878. This type of order is also referred to as “Vexatious Litigant injunction“, “pre-screening injunction”, and “leave to file injunction”. This order specifically states: “THIS CAUSE came before the Court sua sponte.” See Document No. 878, pg. 3. There is a string of U.S. appellate courts and state courts, including Florida and Georgia, who have consistently vacated pre-filing injunctions issued without notice and opportunity to respond. For the time challenged, you may simply refer to the Case Law authority section below for the long line of courts who routinely reject sua sponte issued pre-filing injunctions. However, the purpose of this post is to also examine the actions of the judges charged with the responsibility of correcting this type of behavior and to examine what the consequences are for a judge who exhibits a reckless disregard for the law. What is crystal clear in this matter, Teflon Don has suffered nothing.

Teflon Don Knows he Is Flaunting the Law

Defendant Highlands County filed a lawsuit, Case No. 00-14240, against Mason asking for a pre-filing injunction. However, on January 16, 2001, Judge Graham and his Magistrate Frank Lynch, Jr. said the following:

However, at this point, none those other cases have totally dismissed with prejudice. There are viable claims pending in those cases. * * * While there are other pending cases between these parties, there is nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look for justifying injunctive relief.

Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01).  Between January 16, 2001 when Judge Graham made the statement above, and September 20, 2001, when Judge Graham rendered the pre-filing injunction sua sponte, Document No. 878, Mason did not file any new lawsuit. How is possible to go from havingnothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look for justifying injunctive relief to rendering a pre-filing injunction with no new lawsuit filed in between?’

Additionally, as further proof that Teflon Don is willfully flaunting the law is the fact that Judge Graham was presented with a motion specifically requesting a due process hearing with respect to the sua sponte issued prefiling injunction of September 20, 2001 on 23, 2002. See Document 914, pgs. 19-24. At page 1, this motion asserts: “The injunction violated Mason’s well-established due process rights. It is inexcusable that a federal judge would knowingly issue this type of injunction in violation of Mason’s due process rights.” On January 31, 2003, Judge Graham denied the motion and refused to comply with Mason’s due process requests even though Judge Graham was in possession of a motion citing the same cases that are cited on this post.

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

Document No. 928. It can not be argued that Judge is not intentionally disrespecting the law.

Judicial Misconduct

A feature of this blog is describing conduct that Chief Judge J.L. Edmondson, Eleventh Circuit, and others, do not consider to be judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. §§ 351-364. This posting will demonstrate that federal judges can intentionally disregard well established law and binding precedent with near absolute impunity. Chief Judge J.L. Edmondson, and others, assert that such acts, even if true, do not constitute judicial misconduct. Moreover, according to Judge Edmondson’s interpretation of the law, even if Judge Graham were involved in a pattern and practice of total disregard for clearly established law and binding precedent, such behavior would still not rise to the level of judicial misconduct. See Complaint of Judicial Misconduct No. 05-0011. For more Support, see Complaint Nos. 05-0008, 05-0012, 05-0013, 05-0020, 05-0021. According to Judge Edmondson, even if an invalid sua sponte issued prefiling injunction formed the basis of a criminal contempt complaint and conviction, such conduct would still not be considered judicial misconduct. Switching vernacular for the moment, according to Judge Edmondson there aint no judicial misconduct.

Judge Edmondson seems to disagree with his own Judicial Conference who has clearly stated that a pattern and practice of intentionally disregarding clearly established law could be misconduct.

[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.

http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf :Pg. 8.

Judicial Independence advocates state:

Appellate courts serve as a moderating influence by correcting mistakes made by lower courts. The very function of appellate courts also encourages lower courts to adhere to closely to the law and applicable precedents: If a trial court judge knows that an appellate court is likely to reverse a certain decision, she is less likely to stretch the boundaries of the law.

Constitution Project, THE NEWSROOM GUIDE TO JUDICIAL INDEPENDENCE

If the Constitution Project is correct, then Teflon Don should have suffered a reversal on appeal. However, this is not what has happened as the Eleventh Circuit has aggressively fought off all attempts at appellate review of the sua sponte issued pre-filing injunction at issue. See APPELLATE HISTORY: AN EXERCISE IN FUTILITY. Aided by the “unpublished” opinion, the Eleventh Circuit has raised trickery, artifice, and chicanery to new heights or new lows depending upon your point of view. The clear intent of the Eleventh Circuit is not to ever pass on the validity of this sua sponte issued pre-filing injunction and reverse Teflon Don. The Eleventh Circuit has done the schiester lawyer proud.

Constitutional Right of Access To The Courts Generally

Dissent by Judge Berzon;Dissent by Chief Judge Kozinski, Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)
Pre-filing orders infringe the fundamental right to access the courts. They are properly reserved for extreme situations where there is absolutely no possibility that the allegations could support judicial relief and filing the suit is a burden on both the court and the opposing party — a costly exercise in futility…The First Amendment right to “petition the Government for a redress of grievances” — which includes the filing of lawsuits — is “one of `the most precious of the liberties safeguarded by the Bill of Rights.’ ” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524 (2002) (quoting United Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222 (1967)).

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).

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’.

Open Letter to Judge Donald L. Graham Dated April 3, 2008

April 3, 2008

Judge Donald L. GrahamJudge Donald L. Graham

scales.gifJustice Turned On Its Head!


Thursday, April 03, 2008

RE: FYI: DC Case No. 99-14027-CV-Graham/Lynch

Dear Mr. Graham:

As you well know, I have nothing but the utmost disrespect and disdain for you personally. I recently spent 41 days in jail because you framed me. See http://mmason.freeshell.org/framed.htm#quick . I believe this is a criminal act on your part. I can tell you that I am more determined than ever to see that you are impeached and led off in handcuffs like I was for your criminal behavior. I don’t care how long it takes or what I have to go through, but I won’t stop trying to hold you accountable under the law. Do you understand? Do you understand? If you type http://mmason.freeshell.org/openletter/ you will see a directory with all the letters I am sending out in my new letter writing campaign. This letter is located at http://mmason.freeshell.org/openletter/Graham08282008.rtf and as an open letter and a post to my blog at: https://mcneilmason.wordpress.com.

As I examine an officially filed court document, Docket No. 934, http://mmason.freeshell.org/DE-934/de934.pdf , it is not quite clear to me what the purpose of our little chat was on January 14, 2005. It appears that you are trying to circumvent the appellate review you know is coming. This document has no signature, nor is signed by any judge, consequently it is not clear to me what this document purports to be. This is not a legal document. Given that it is not signed by any judge, or anybody else for that matter, I can only assume that it is only someone’s personal opinion. The law requires injunctions or changes to injunctions to be put in writing. “[I]f the district judge neither puts pen to paper nor identifies an authoritative document, nothing of legal significance has happened–for oral statements are not judgments and under Rule 65(d) have no legal effect, and until the judge enters something meeting the general description of an injunction or other judgment, the matter remains pending in the district court.” Hispanics United v. Village of Addison IL, 248 F.3d 617, 620-21 (7th Cir., 2001). “Oral statements are not injunctions. A judge who proclaims “I enjoin you” and does not follow up with an injunction has done nothing.” When a judge does not record an injunction or declaratory judgment on a separate document, the defendant is under no judicial compulsion. …[a]n opinion or statement in court “is not itself an order to act or desist; it is a statement of reasons supporting the judgment. The command comes in the separate document entered under Fed.R.Civ.P. 58, which alone is enforceable. There must be a separate document, with a self-contained statement of what the court directs to be done.” Bates v. Johnson, 901 F.2d 1424, 1427-28 (C.A.7 (Ill.), 1990).

As you well know, you issued a “pre-filing injunction” sua sponte on September 20, 2001. I’ve done a great deal of research on sua sponte issued pre-filing injunctions and have found that every U.S. Court of Appeal, including the Eleventh Circuit, and other jurisdictions that I have run across have rejected sua sponte issued pre-filing injunctions. See http://mmason.freeshell.org/SuaSponte.htm . These courts, including the Eleventh Circuit, have stated unequivocally that sua sponte issued pre-filing injunctions are violative of due process. Any order that violates due process is void.

If the purpose of our little chat on or about January 14, 2005 was to modify the sua sponte injunction of September 20, 2001. The law does not allow you to sua sponte modify a sua sponte issued filing injunction. I will require due process and something in writing stating how the sua sponte issued pre-filing injunction was modified. See 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.”). In Weaver v. Sch. Bd., 2006 U.S. App. LEXIS 8128 (unpublished) (11th Cir. 2006), the Court held that a litigant was entitled to “notice and an opportunity to be heard” before a restriction was imposed on the litigant’s ability to challenge an injunction. Otherwise, I assume that the sua sponte issued pre-filing injunction has not been modified and you will receive requests accordingly. Moreover, with respect to the case being “closed” and Rule 60(b), Fed.R.Civ.P.: “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).

You have proven to me that you are not constrained by the rule of law. You have a long history of lawlessness and misconduct that includes, but is not limited to, the following:
• You have lied and intentionally misrepresented the law.
• You usurped legal authority by allowing a Magistrate to issue an injunction which is prohibited under 28 U.S.C. 636(b)(1)(a) and ordering me not to communicate with my government, Highlands County Board of County Communications.
• You refused to rule on a motion for a preliminary injunction that had been pending for more than 17 months.
• You allowed scores of other important motions to simply linger without addressing them.
• You have abused the criminal contempt procedure by taking a void sua sponte issued pre-filing injunction and making it the basis of criminal contempt information.
• You have used the criminal contempt process to force the withdrawal of a lawsuit.
• You have awarded a massive $200,000 in attorney’s fees to Highlands County against an indigent me, not on the quality of the underlying lawsuit, but based upon your mere speculation about my motive.
• You have repeatedly improperly denied me access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions.
• You have falsely completed a Civil Justice Reform Act Report, “CJRA” in order to conceal the fact the fact that you had a motion for a preliminary injunction pending for more than 17 months.
Support for these allegations are fully set forth at: http://mmason.freeshell.org/CoreAllegations.htm and at https://mcneilmason.wordpress.com and
numerous other places. Mr. Graham, I am incapable of simply accepting this kind of lawlessness and behavior and moving on. In a word, I simply will not move on under any set of circumstances.

Mr. Graham you have enjoyed a pyrrhic victory at the cost of your reputation and that of your colleagues. It is kind of selfish of you to put your colleagues in the position that you have placed them in. You have subjected your colleagues at the Eleventh Circuit to ridicule by forcing them to make lawless and dishonest decisions in order to conceal your lawless behavior and hubris. I mock them at: https://mcneilmason.wordpress.com and layout their entire repertoire of tricks and dishonesty at: http://mmason.freeshell.org/methods.htm . I have defined you with your record. Anytime somebody wants to know something about you, they Google or Yahoo your name and it leads to one of my many websites and pages.

Mr. Graham, it would be in your best interests and those of your colleagues if you comport yourself to the rule of law. What have you gained by all of your lawless behavior? You have damaged your own reputation and are in the process of destroying other judges’ reputation as well. It says something about your character to put other judges in the position you have placed them.

Ultimately, I am seeking public scrutiny of your record. When that goal is reached, and I won’t quit my efforts until that time, the public outcry for disciplinary action against you and your enablers will be overwhelming. In the interest of the Federal Judiciary and your friends, you should consider resigning and firing Judge Lynch.

Marcellus Mason


Are Allegations of Misconduct Reviewable on Appeal?

March 27, 2008

Judge Donald L. Graham
judgegraham.jpg

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 Meaningless Appeal

Marcellus Mason filed appellate briefs with the Eleventh Circuit, U.S. Court of Appeals, in two separate cases, 01-13364 and 01-15754, accusing U.S. Dist. Judge Donald L. Graham of the following misconduct and mismanagement:

  • Lying and intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for about 19 months.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction in clear violation of law and 28 U.S.C. § 636 (b)(1)(A) which clearly states:
    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 injunction relief,…”
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction to prohibit lawful and protected out of court communication between a citizen and his government.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction placing restrictions on how public records are accessed under the Florida Public Records Act that the State of Florida does not allow. Judge Graham has refused to state where a federal judge gets the legal authority to administer public records under the Florida Public Records Act.
  • Allowing scores of significant pre-trial motions to go undecided for months without taking any action.
  • Involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction or vexatious litigant injunction which ultimately formed the basis of a criminal contempt complaint and conviction. See Framing An Innocent Person.

In an unpublished opinion, [Case No. 01-13664] the Eleventh Circuit, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus have expressly stated that allegations of judicial misconduct are not reviewable on appeal. Theses allegations were not tested for veracity they were simply ignored. Specifically, in the opinion rendered on October 16, 2002, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus asserted:

“Mason also raises issues that relate to non-sanction matters, e.g., .. the denial of his motions to disqualify the district court and magistrate judges…”

See Opinion, page 10. This is the sum total of appellate review as to whether Judge Donald L. Graham should have been disqualified due to misconduct. There is absolutely no discussion as to whether the allegations of misconduct are true or not.

Similarly, a petition for mandamus [Case No. 01-15754] was submitted to the Eleventh Circuit on or about October 2, 2001. This petition accused Judge Graham of misconduct. The Eleventh Circuit, Judges Rosemary Barkett, Jr., Susan H. Black, and Stanley Marcus, simply ignored the allegations of misconduct by stating only the following in a one sentence unpublished “opinion” :

The ” petition for writ of mandamus and petition for writ of prohibition” is DENIED.

mmason.freeshell.org/15754/mandamus_denied.pdf .

mandamus


References
Case No. 01-13664 Appellant’s Brief

Case No. 01-15754 Mandamus Petition