Posts Tagged ‘validity’

Eleventh Circuit, US Court of Appeal Uses Unpublished Opinion of Three Judge Panel To Overrule Binding Published Opinion of An En Banc Court

August 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

Judicial Misconduct and Pending Complaints

Appointments

Brief History of The Eleventh Circuit

Definition of En Banc

Prior Panels Decisions Are Legally Binding

Background

Definition of An Injunction

Semantic Tap Dancing and Characterization

Definition of A Prior Restraint

Judge Graham and the Eleventh Circuit’s Apparent Nebulous Legal Reasoning And Utter Disregard For Bernard v. Gulf-Oil Co. And The First Amendment

Discovery Orders


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?“. 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.


Point of This Post

The Eleventh Circuit, U.S. Court of Appeal, wanted to achieve the desired outcome so badly that it deployed an unpublished decision rendered by a three judge panel to overrule a legally binding opinion of an en banc court.  Specifically, Bernard v. Gulf-Oil Co., 619 F.2d 459, 476 (5th Cir. 1980) affirmed Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) was overruled by a mere three judge panel consisting of Circuit Judges, Stanley F. Birch, Jr., Hon. Stanley Marcus,  and Hon. Susan H. Black.  This post will compare Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, Case No. 01-13664-A,  (11th Cir. 2002), an unpublished decision, to Bernard v. Gulf-Oil Co., 619 F.2d 459, 476 (5th Cir. 1980), a published opinion Mason v. Heartland Library Cooperative involves a level of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 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 used a three judge panel and an unpublished opinion to achieve this pre-determined outcome even at the expense of overruling an en banc court.  Specifically, the following two “orders” were at issue on appeal:

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.

“Orders regulating communications between litigants…pose a grave threat to first amendment freedom of speech. Accordingly, a district court’s discretion to issue such orders must be exercised within the bounds of the first amendment and the Federal Rules.” In re Sch. Asbestos Litig., 842 F.2d 671,680 (3d Cir. 1988). These orders are prior restraints and injunctions.  Among other things, there are two huge problems with these orders.  Firstly, these orders were issued by a Magistrate who can not issue an injunction.  Secondly, since these orders are prior restraints and as such, they are presumptively unconstitutional. “[T]he principal purpose of the First Amendment’s guaranty is to prevent prior restraints.”  In re Providence Journal Company at ¶17, infra. In order to achieve the desired outcome the Eleventh Circuit uses the following tactics that are deceitful and intentionally misleading:

  • It refuses to discuss whether these orders are really injunctions. There is no definition of an injunction and why these orders don’t fit within the definition of an injunction.
  • The term prior restraint is not used.  Mason’s right’s under the first amendment is not discussed.
  • The validity of these orders are not discussed in any manner. In a word, the Eleventh Circuit simply refuses to discuss the validity of these orders while it was quite willing to discuss Mason’s alleged violations of these patently illegal orders.

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. What happens if the appeals courts disregards the rule of law? 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 Circuit 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.


Judicial Misconduct and Pending Complaints

Complaint Status
Judicial Conference pending

Reconsideration
pending

June 25, 2008
pending

July 9, 2008
pending

July 15, 2008
pending

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, Binding National Rules Adopted for Handling Judicial Misconduct Complaints, in March of this year, the Judicial Conference adopted the
first-ever binding nationwide procedures for handling complaints of judicial misconduct. U.S. Dist. Judge Donald L. Graham has escaped discipline for his abusive and possible criminal behavior.  As a result of this, Mason submitted complaints to both the Judicial Conference and Chief Judge J.L. Edmondson, Eleventh Circuit, US Court of Appeal, again.  These complaints are governed by 28 U.S.C. §§ 351-364,

The Judicial Improvements Act of 2002” formerly “The Judicial Misconduct and Disability Act“.

Previously, Chief Judge J.L. Edmondson, had been misconstruing the statute and summarily dismissing complaints of misconduct by simply regurgitating the statutory language at 28 U.S.C. § 352 which allows him to dismiss complaints that are “directly related to the merits of a decision or procedural ruling“.
Judge Edmondson is alone in his view that legal error and judicial misconduct are mutually exclusive.  For more discussion on “legal error” and judicial misconduct, see article Chief Circuit Judge J.L. Edmondson Uses Perfect Scam of Negative Definition To Defeat Complaints of Misconduct Under the Judicial
Misconduct and Disability Act
.

On Tuesday, June 25, 2008, a new complaint of judicial misconduct was filed against Judge Graham.  Additionally, complaints of misconduct were initiated against Judge Graham on July 9, 2008 and
July 15, 2008
.



Appointments

Judge Donald L. Graham (1992), Judge Stanley F. Birch, Jr. (1990),  and Hon. Susan H. Black(1992)  are appointments of President George H.W. Bush.  Judge Stanley Marcus is a 1997 appointment of President William J. Clinton.


Brief History of The Eleventh Circuit

Bernard v. Gulf-Oil Co., 619 F.2d 459, 476 (5th Cir. 1980) was decided on June 19, 1980 and therefore binding precedent within the Eleventh Circuit, U.S. Court of Appeal.  In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Court held:

This is the first case to be heard by the United States Court of Appeals for the Eleventh Circuit, established October 1, 1981 pursuant to the Fifth Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995, and this opinion is the first to be published by the Eleventh Circuit. Under P.L. 96-452 the United States Court of Appeals for the Fifth Circuit was divided into two circuits, the Eleventh and the “new Fifth.” This court, by informal agreement of its judges prior to October 1, 1981, confirmed by formal vote on October 2, 1981, has taken this case en banc to consider what case law will serve as the established precedent of the Eleventh Circuit at the time it comes into existence. We hold that the decisions of the United States Court of Appeals for the Fifth Circuit (the “former Fifth” or the “old Fifth”), as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit…The old Fifth followed the absolute rule that a prior decision of the circuit (panel or en banc) could not be overruled by a panel but only by the court sitting en banc. The Eleventh Circuit decides in this case that it chooses, and will follow, this rule.


Definition of En Banc

En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case, rather than a panel of them. It is often used for unusually complex cases, or cases considered of unusual significance. Appellate courts in the United States sometimes grant rehearing en banc to reconsider a decision of a panel of the court (a panel generally consisting of only three judges) where the case concerns a matter of exceptional public importance or the panel’s decision appears to conflict with a prior decision of the court...Cases in United States Courts of Appeals are heard by a three-judge panel. A majority of the active circuit judges may decide to hear or rehear a case en banc. Parties may suggest an en banc hearing to the judges, but have no right to it. Federal law states en banc proceedings are disfavored but may be ordered in order to maintain uniformity of decisions within the circuit or if the issue is exceptionally important. Each court of appeals also has particular rules regarding en banc proceedings. Only an en banc court or a Supreme Court decision can overrule a prior decision in that circuit; in other words, one panel cannot overrule another panel.  See http://en.wikipedia.org/wiki/En_banc.


Prior Panels Decisions Are Legally Binding

A three judge panel decision or opinion binds all other subsequent appellate panels except an en banc court or the United States Supreme Court.  The Eleventh Circuit has stated: “Under our prior precedent rule, a panel cannot overrule a prior one’s holding even though convinced it is wrong. See, e.g., Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997) (‘The law of this circuit is ’emphatic’ that only the Supreme Court or this court sitting en banc can judicially overrule a prior panel decision.’  ‘[I]t is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.'”  United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir.1998) (en banc).


Background

Marcellus M. Mason, Jr. of Sebring, Fl. filed an employment discrimination lawsuit against the Highlands County Board of County Commissioners and the Heartland Library Cooperative and other governmental entities and their individual government employees in February 1999.  See Docket Sheet. This case was ultimately assigned to Judge Donald L. Graham, “Teflon Don”, 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 and constitutionally protected and legal communications between Highlands County and Mason. See “R&R” (D.E. 766), Order adopting R&R (D.E 791).  See Banned Communications.

On June 13, 2000 , the Government Defendants through their attorneys,  Maria Sorolis and Brian Koji, filed a “DEFENDANTS’ MOTION FOR PRELIMINARY INJUNCTION, (D.E. 199)” which specifically requested:  “Defendants move the Court for an injunction prohibiting Plaintiff from contacting any of the Defendants and/or their supervisory employees“.  Defendant’s counsel, Maria Sorolis and Brian Koji, cited no legal authority for the requested relief.

On July 6, 2000, the Government Defendants through their attorneys,  Maria Sorolis and Brian Koji, filed a “DEFENDANTS’ RENEWED MOTION FOR PRELIMINARY INJUNCTION, (D.E. #231)“, and requested the following relief:

Defendants respectfully renew their Motion for a Preliminary Injunction prohibiting the Plaintiff from contacting the supervisory employees of the Defendants or the individual Defendants directly, and directing Plaintiff to make all public records requests through the undersigned counsel.

This motion, as the first motion cited no legal authority for the requested relief. These requests or motions for preliminary injunctions were granted on June 19, 2000 and July 25, 2000, respectively.  These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL  to ask for permission to speak with his local government in Sebring, Florida.  These orders in pertinent 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.

(DE #246).  This order is dated July 25, 2000.

Judge Graham has expressly stated that the issuance of these 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).   Judge Graham has NEVER at any time cited legal authorities for these patently illegal orders even though there have been relentless requests.  See for example, and note that this list is not collectively exhausted, Case No. 99-14027 see Plaintiff’s  motions and responses, (Doc.#200);(Doc. #239); (Doc. #262);(Doc.  #264);(Doc. #284);(Doc.#334);(Doc. #509);(Doc. #515);(Doc. #526);(Doc. 554);(Doc. 632, pg.5);(Doc.#633);(Doc. 652);(Doc. 663); (Doc. 735); (Doc. 736); (Doc.738); (Doc. 783); (Doc. 787, pgs 2-3); (Doc. 810); (Doc. 812); (Doc.813); (Doc. 817); (Doc. 829), (Doc. 845);and the court’s 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).

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”, (D.E. #766), recommended 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.  See (D.E. #791).

Additionally, in his Report and Recommendation that recommends that the lawsuit be dismissed because of alleged violations of the orders of June 19, 2000, (D.E. #201) and July 25, 2000, (D.E. #246), the Magistrate admits that the validity of these orders were being challenged, but he declines to assert legal authority for these orders by stating only:

The Plaintiff alludes to this Court’s rulings, issued June 19 and July 25, 2000, directing that he should not contact any of the Defendants or individual Defendants, including their supervisory employees, regarding any matter related to this case except through their counsel of record. If the Plaintiff was represented, his attorney would know that this is proper procedure. The Plaintiff questions this Court’s authority to enter an “injunction” as he calls it preventing him from contacting the parties directly. This Court has entered numerous orders on this issue in ruling on Plaintiff’s many requests for clarification ito vacate, etc., of this issue and has attempted to clearly point out to the Plaintiff that it is a discovery issue and not one appropriate for injunctive relief. The Plaintiff has appealed those orders to the District Court and they have been affirmed by Judge Graham.

See Report and Recommendation, (D.E. #766, pg. 3, ¶5).  This case was closed on June 20, 2001.

Case Closure

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).


Definition of An Injunction

28 U.S.C. § 636(b)(1)(A) states:

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…,”

The Eleventh Circuit scrupulously and meticulously avoids using the word injunction or prior restraint in their opinion.  The Eleventh Circuit admits the validity of the orders, (D.E. #201) and (D.E. #246), in question were being challenged on appeal.

On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state law rights to petition Florida government officials and to request public records.

See Opinion, Pg. 9.   Courts have defined injunctions in the following manner:

In this matter, Magistrate Lynch prohibits direct communication with the government as he expressly states:

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.

In a separate action, Mason v. Kahn, Case No. 08-1143 (D.C. Dist. 2008), the Court refers to the orders in question as injunctions.  See (D.E. #3)(“In this action, plaintiff alleges that the issuance of the June and July 2000 injunction orders…plaintiff demands that the injunction orders issued in his employment discrimination case be declared unconstitutional. “).  In the entirety of the Eleventh Circuit’s 14 page Opinion there is no discussion as to whether the orders in question are injunctions.  Similarly, in an old Fifth Circuit decision,  Lewis v. S. S. Baune, 534 F.2d 1115 (5th Cir. 1976), that the Eleventh Circuit is bound by, see Bonner v. City of Prichard, supra; the Court held that an order which restricted communications between litigants without benefit of the attorneys involved amounted to an unconstitutional injunction:

It prohibited appellant from “discussing, directly or indirectly, settlement . . . with the plaintiffs” and from “contacting, communicating, or in any way interfering with the attorney-client relationship”. What the District Court in effect enjoined was a settlement between the parties, however amicably reached, if the claimants’ attorneys were not consulted. This was too sweeping a restraint by the lower court.


Semantic Tap Dancing and Characterization

The Eleventh Circuit opts to use the phrase “discovery order” as opposed to injunction or prior restraint.  For example:

  • On 19 June 2000, the magistrate judge issued discovery order prohibiting Mason from contacting the defendants… See Opinion, pg. 3.
  • On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state law rights to petition Florida government officials and to request public records.  See Opinion, pg. 3.

Judge Graham’s Magistrate, Frank Lynch, Jr. , who issued the orders never called them “discovery orders”.  The Magistrate in granting the Defendant’s Motion for a Preliminary Injunction characterizes his order thusly:  “this Court is considering this Motion as a pretrial discovery issue and not an injunction issue per se”  See (DE #201). Similarly, on July 25 in granting the Defendants’ Renewed Motion For Preliminary Injunction, (D.E. #231) The Magistrate use the same characterization:  “this Court is considering this issue as a pretrial discovery issue and not an injunction issue per se…” See (DE #246).

On appeal these orders these orders are attacked by Mason the Appellant as illegal injunctions that violate his “free speech” rights.

  • These orders, (Doc. 201) and (Doc. 246), “preliminary injunctions” are invalid because this issue was not referred to the Magistrate pursuant to 28 U.S.C. § 636(b)(1)(A).  See Initial Brief, pg. 6.
  • A Magistrate does not have the legal authority to issue an injunction.  See Initial Brief, pg. 6.
  • The district court punished the Plaintiff for exercising his right of “free speech” by dismissing this meritorious lawsuit. Plaintiff has a clear right to communicate with his government about the matters in this controversy, litigation notwithstanding.

In their opinion, The Eleventh Circuit scrupulously and meticulously avoids using the word injunction or prior restraint.  The word injunction is used one time in the very verbose 14 page opinion.  See Opinion, pg. 12 (“Moreover, the magistrate judge and district court attempted to clarify with Mason that the Orders were not injunctions, but rather necessary for the orderly litigation of the case.”).  As stated above, the Defendants filed Motions For Preliminary Injunction; however, rather than use the term Motion for Preliminary Injunction, the Eleventh Circuit uses generic terms to refer to these motions:

  • “Heartland moved to enjoin Mason from contacting them… ”  See Opinion, pg. 3.
  • “Heartland renewed their motion based on Mason’s continued contact with them…”  See Opinion, pg. 3.
  • “On 25 July 2000, the magistrate judge granted Heartland’s motion…”  See Opinion, pg. 3.

Judge Graham’s Magistrate, Frank Lynch, Jr., Injunction or “Pretrial Discovery Issue and Not An Injunction Per Se”  were rendered on June 19, 2000 and July 25, 2000, which 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.”

(DE #246).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.


Definition of A Prior Restraint

The orders in question prohibit direct communication with the government by a mere pro se litigant, Marcellus M. Mason, are properly characterized as prior restraints.  The order of June 19, 2000 states:

[T]he 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.  Plaintiff shall correspond only with Defendants’ counsel.

See (DE #201).

“The term “prior restraint” describes orders forbidding certain communications that are issued before the communications occur. “ . Temporary restraining orders and permanent injunctions — i. e., court orders that actually forbid speech activities — are classic examples of prior restraints.” Alexander v. United States 509 U.S. 544,550 (1993). “Prior restraint has traditionally been defined as a “predetermined judicial prohibition restraining specified expression…” Bernard v. Gulf-Oil Co., 619 F.2d 459, 476 (5th Cir. 1980).  “A prior restraint is generally judicial rather than legislative in origin, although an enabling statute may authorize the judicial suppression of publication. The essence of prior restraint is that it places specific communications under the personal censorship of the judge.” id at ¶22.  “Prior restraints are “administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur. Test Masters at ¶45, infra. According to the United States Supreme Court, a prior restraint comes to the Court with a heavy presumption against its validity. New York Times Co. v. United States, 403 U.S. 713, 714 (1971). This presumption is so strong it has been described a virtually insurmountable. In re Providence Journal Company, 820 F.2d 1342 (1st Cir. 1986)(“pure speech–speech not connected with any conduct–the presumption of unconstitutionality is virtually insurmountable.”). This presumption is so strong that the Supreme Court has refused to uphold prior restraints even where national security, id. at ¶21, and the defendant’s sixth amendment right to a fair trial have been involved, id. at ¶22.   In over two hundred years, the U.S. Supreme Court composed of nine Article III Judges, has never upheld a prior restraint on pure speech, In re Providence Journal Company, supra,, however, a mere Magistrate, Frank Lynch, Jr, issues these injunctions with ease.

In Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559 (Fed. 5th Cir., 2005), the Fifth Circuit termed an order issued by Judge Vanessa D. Gilmore an injunction order:

[T]he district court’s injunction order enjoined Singh from communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, its staff, or TES’s counsel, counsel’s employees, or counsel’s staff. The district court’s injunction was prompted by allegations from TES that Singh and his employees had called TES dozens of times a day, including seventy-one times on one day in May 2003. TES alleged that the calls included the screaming of obscenities.

This order prohibited communications between the parties, like the “discovery order” in this matter, was declared by the Testmasters Court to be a prior restraint. Id. at ¶45. Moreover, the  Testmasters Court held that even an acrimonious and hostile relationship between the parties would not justify a prior restraint.

The district court prohibited Singh from “communicating directly with . . . TES employees, staff or TES’s counsel, counsel’s employees, or counsel’s staff.” To quote selectively from the district court, the court found that the parties had demonstrated an “immaturity” and “mean-spirited[ness],” and that Singh was pursuing “vexatious litigation.” However, despite the perhaps need of these parties to never speak again, the court did not detail, and the record does not reflect, any “exceptional circumstances” to justify permanently enjoining Singh from generally communicating with TES, TES’s counsel and their staff and employees. The district court’s order enjoining Singh from communicating with TES employees, TES’s counsel, and its counsel’s employees was a prior restraint limiting Singh’s first amendment rights, and because the injunction order is not supported by exceptional circumstances, it is an unconstitutional restraint on Singh’s free speech rights. (emphasis added)


Judge Graham and the Eleventh Circuit’s Apparent Nebulous Legal Reasoning And Utter Disregard For Bernard v. Gulf-Oil Co. And The First Amendment

Amendment I, U.S. Const. states:

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

“Case law is not always necessary to clearly establish a right. A right may be so clear from the text of the Constitution or federal statute that no prior decision is necessary to give clear notice of it to an official.”  Rowe v. City Of Fort Lauderdale, 279 F.3d 1271 (11th Cir. 2002).  Notwithstanding case law and Bernard v. Gulf-Oil Co., it should be clear to all that communications with the government is constitutionally protected speech of the highest order.  The Eleventh Circuit and Judge Graham have shown a complete and utter disregard for Bernard v. Gulf-Oil Co., and its holdings. Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, Case No. 01-13664-A,  (11th Cir. 2002), is a fourteen page opinion.  This opinion is little more than propaganda as it does not discuss the validity of the orders or injunctions in question.  The first ten pages of this opinion ostensibly states the “facts of the case”.  The last four pages are dedicated to discussion of the legal issues or how the law is applied to the facts.  At page nine, the Eleventh Circuit admits:

On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.

This represents the sum total of the legal discussion of this issue.  However, at page 12, the Eleventh Circuit asserts the following:

Moreover, the magistrate judge and district court attempted to clarify with Mason that the Orders were not injunctions, but rather necessary for the orderly litigation of the case.

See Opinion. However, the en banc decision of the Eleventh Circuit, Bernard v. Gulf-Oil Co., 619 F.2d 459, 476 (5th Cir. 1980), expressly rejected this line of reasoning for issuing a prior restraint. “[T]he general presumption against prior restraints is not mitigated by a claim that the fair and orderly administration of justice is at stake.” In addition to the above, the Eleventh Circuit also disregarded Bernard v. Gulf-Oil other holdings.

  • The expression that is restrained is protected.  id at 39. “Material unequivocally not protected by the Constitution may be the subject of a prior restraint if sufficient procedural safeguards are provided. This possibility does not exist in the present case because the communications proscribed by the order are constitutionally protected. id at 40. In this matter, the Eleventh Circuit refuses to recognize Mason’s right to communicate with the government about any subject without restriction.
  • A prior restraint comes with a heavy presumption against its constitutionality and   imposes on the issuing court rigid requirements to justify prior restraints. The prior restraint must prevent direct, immediate and irreparable damage, and it must be the least restrictive means of doing so.  id at 47. Neither Judge Graham nor the Eleventh Circuit attempt to make such a showing.

Discovery Orders

The Eleventh Circuit characterizes the orders in question as “discovery orders”.  However, neither the Eleventh Circuit in their opinion, or the Magistrate in his orders, (DE #201) and (DE #246), identify which discovery rule forms the legal basis of these orders.  Discovery is governed by the Federal Rules of Civil Procedure 26-37. See pg. 13, “INFORMATION ON REPRESENTING YOURSELF IN A CIVIL ACTION (NON-PRISONER), United District Court, South Carolina”.  “‘Discovery’ refers to the process of obtaining facts and information about the case from the other party in order to prepare for trial.”  id.  Neither the Eleventh Circuit nor the Magistrate identify any of the known discovery methods that were prohibited or abused.  Assuming arguendo, that these orders were actually “discovery orders”, they would be still be invalid because the Federal Rules of Civil Procedure does not create jurisdiction to restrict requests for public records.  In re Infant Formula Antitrust Litigation, MDL 878 v. Abbott Laboratories, 72 F. 3d 842, 843 (11th Cir. 1995). Florida Courts have repeatedly held that the Federal Rules of Civil procedure or any court rules have do not affect a person’s right under Florida Public Records law. See B.B. v. Dep., Children & Family Serv., 731 So.2d 30, 34 n.4 (Fla.App. 4 Dist. 1999)(“Section 119.01 is not intended to expand or contracts rights under court procedural rules.”); Wait v. Florida Power & Light Co., 372 So.2d 420, 425 (Fla. 1979)(“[W]e do not equate the acquisition of public documents under chapter 119 with the rights of discovery afforded a litigant by judicially created rules of procedure.”) If the Florida Supreme Court declines to place restrictions on the right of access to Florida’s Public Records, then who in the hell Teflon Don to do so? Secondly, and more importantly, mere labels like “discovery orders” can not be used to undermine rights created by the the Constitution. The United States Supreme Court and the Congress has expressly prohibited federal judges from imposing its will on litigants by making rules or orders that abolish or nullify a right recognized by the substantive law of the state. In Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941), the Supreme Court held:

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

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

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

Advertisements

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).

Judge Graham Thumbs Nose At US Supreme Court And Rejects the First Amendment’s Petition Clause

May 17, 2008

Judge Donald L. GrahamJudge Donald L. Graham, “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).

Purpose of This Post

The goal of this post is to seek help getting the injunctions in this post subject to appellate review. As demonstrated below, Mason has been unable to obtain appellate review of these orders. Where are the Defenders of the First Amendment?

“Preliminary Injunctions” Implicating Free Speech

“The right of petition is one of the freedoms protected by the Bill of Rights,… Certainly the right to petition extends to all departments of the Government.” California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508 (1972).

On June 19, 2000 and July 25, 2000, U.S. District Judge Donald L. Graham’s Magistrate, Frank Lynch, Jr., issued the following preliminary injunctions which 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.” (DE #246). This order is dated July 25, 2000. The Defendant referenced in these orders is a government defendant, Highlands County Board of County Commissioners. See heading Background, below. Amazingly enough, Judge Graham has stated that these orders are not “clearly erroneous nor is it contrary to law“. See Document No. 407. Judge Graham also disagrees with the Congress who has stated: “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)

Goddamn It, I Have the Power

Mason made numerous attempts at getting Teflon Don to state the legal basis for these massive exercises of power in rendering the above orders. However, Judge Graham has refused to share with the legal community and Mason the legal authority for these orders. Judge Graham and his Magistrate, Frank Lynch, Jr. ‘s replies have included, but are not limited to the following:

Docket No. 279 Docket No. 281
Docket No. 407

Docket No. 524

Docket No. 528
Docket No. 634
Docket No. 744 Docket No. 745 Docket No.874 Pg. 2
Docket No. 882
Docket No. 890

Docket No. 928

Docket No. 931

In fact, as documented below, the Eleventh Circuit, U.S. Court of Appeal has avoided appellate review of these orders like they were a highly contagious plague.

Judge Graham’s Hubris

Judge Graham is of the apparent belief that he is not bound by the orders of the United States Supreme Court, “SCOTUS”. Judge Graham has a history of defying the Supreme Court’s holdings anytime he disagrees with them. See Florida Judge Thumbs His Nose at U.S. Supreme Court Rulings on Thumbs His Nose And Attorneys’ Fees and Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts. Judge Graham disagrees with his colleagues at the DC Circuit who have stated: “The limits placed by the First Amendment on the Government extend to its judicial as well as legislative branch.” Equal Emp. Opp. Comm. v. The Catholic Univ., 83 F.3d 455 (D.C. Cir. 1996). Other courts, including the old Fifth Circuit Circuit whom Judge Graham is legally bound to follow, have found orders such as the orders as described here to be unconstitutional. see Lewis v. S. S. Baune, 534 F.2d 1115 (5th Cir. 1976)(reversing an order which prohibited appellant from “discussing, directly or indirectly, settlement . . . with the plaintiffs” and from “contacting, communicating, or in any way interfering with the attorney-client relationship” as “too sweeping a restraint”); Bernard v. Gulf-Oil Co., 619 F.2d 459, 466 (5th Cir. 1980) (en banc), aff’d, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981),( explicitly held that requiring the litigant to meet the Court’s “post-communication filing requirements” of constitutionally protected communication was unconstitutional.). Additionally, in Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) the court held that an order which enjoined a litigant “from communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, its staff, or TES’s counsel, counsel’s employees, or counsel’s staff” constituted an invalid prior restraint and a unconstitutional limitation on free speech.

LACK OF APPELLATE REVIEW

The speech and orders described in this post have not been subjected to appellate review. It is, among other things, for this reason that Judge Graham can be accurately described as “Teflon Don”. In what can only be described as judicial treachery and dishonesty, the Eleventh Circuit, on a direct appeal spent an amazing 14 pages talking about the violations of the orders in this post, but none about their validity. This appeal has been described as the appeal from hell, see post entitled “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“. The Eleventh Circuit appears to be hell bent on not reviewing these orders for validity as it has absolutely refused to conduct appellate review of these orders on multiple occasions while asserting a different reason each time for its refusal to review these orders. See post “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“. Can Judge Graham be called anything other than “Teflon Don”?

U.S. Supreme Court on the Petition Clause

The First Amendment guarantees “the right of the people . . . to petition the Government for a redress of grievances.” The right to petition is cut from the same cloth as the other guarantees of that Amendment, and is an assurance of a particular freedom of expression. In United States v. Cruikshank, 92 U.S. 542 (1876), the Court declared that this right is implicit in “[t]he very idea of government, republican in form.” Id., at 552. And James Madison made clear in the congressional debate on the proposed amendment that people “may communicate their will” through direct petitions to the legislature and government officials.McDonald v. Smith, 472 U.S. 479, 482 (1985). The Supreme Court has consistently stated that any system of prior restraints of expression bears a heavy presumption against its constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963);Near v. Minnesota, 283 U.S. 697, (1931);New York Times Co. v. United States, 403 U.S. 713 (1971). This burden is so heavy that in over two centuries, the Supreme Court has never sustained a prior restraint involving pure speech, such as the one at issue here. See Matter of Providence Journal Co., 820 F.2d 1342, 1348 (1st Cir. 1986). “[P]ure speech–speech not connected with any conduct”. id. The presumption of unconstitutionally of prior restraints has been described as “virtually insurmountable” by Supreme Court judges and others. id.(citing Near, 283 U.S. at 713). “Prior restraint has traditionally been defined as a “predetermined judicial prohibition restraining specified expression . . . .The essence of prior restraint is that it places specific communications under the personal censorship of the judge.Bernard v. Gulf-Oil Co., 619 F.2d 459, 470 (5th Cir. 1980) (en banc) aff’d, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981).

Banned Communications

The right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so. It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors.Eastern R. Conference v. Noerr Motors, 365 U. S. 127 (1961). Judge Graham has banned the following lawful and protected communications with the Highlands County Government.

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

(D.E. 511, ¶6, PG.3)

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

D.E. 511, ¶7, PG.3)

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

D.E. 511, ¶8, PG.4)

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

D.E. 511, ¶9, PG.4)

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

D.E. 511, ¶10, PG.4)

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

D.E. 511, ¶11, PG.4)

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

D.E. 511, ¶15, PG.5)

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

(D.E. 646, ¶10, PG.3)

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

(D.E. 646, ¶11, PG.4)

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

(D.E. 646, ¶12, PG.4)

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

(D.E. 646, ¶13, PG.4)

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

(D.E. 646, ¶14, PG.4)

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 bearing Case No. 99-14027-CIV-Graham. The case was originally assigned to then Chief Judge Edward Davis who retired. On February 20, 1999, Judge Davis allowed Mason to proceed in forma pauperis, “IFP”, or to proceed without paying the required filing fee for a lawsuit. Docket Entry No. 3. This case was ultimately assigned to Judge Donald L. Graham and Magistrate Frank Lynch Jr., Case No. 99-14027-CV-Graham/Lynch. After protracted litigation, the case was dismissed, 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.” (DE #246). 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).

On September 20, 2001, Judge Graham affirmed his authority to prohibit out of communication between Mason his government, Highlands County. (“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.”). See pg. 4, (D.E. # 878) .

Federal Magistrate John J. O’Sullivan Omits Material Facts In Order to Deceive

May 11, 2008

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

Purpose of this Post

This post will take a Report and Recommendation,”R&R” of Federal Magistrate John J. O’Sullivan and demonstrate that he intentionally omitted material facts for the sole purpose of deception. Judge O’Sullivan, suggests without stating, that the Eleventh Circuit had reviewed two orders for validity when knew or should have known that they didn’t. If the Eleventh Circuit had declared the orders in question to be valid and constitutional, all Judge O’Sullivan needed to do was say so. Admittedly, this post presumes that Magistrate John J. O’Sullivan reads the documents that he references in his R&R and that he reads the documents that support a pending motion. The purpose of this post is to:

  • Question the personal integrity of Federal Magistrate John J. O’Sullivan.
  • Vindicate the personal integrity of Marcellus Mason.
  • To show the extreme measures federal judges will employ to protect each other.
  • To help make the argument that “judicial independence” equals judicial non-accountability.
  • To show how a judge can fit the “facts” around desired outcome and place the document beyond public scrutiny.
  • To demonstrate that the federal judicial process needs the disinfectant of sunlight and public scrutiny.

Magistrate John J. O’Sullivan left out the material fact that the Eleventh Circuit, on appeal, refused to discuss the validity of two orders, though fully briefed, (DE# 201 and 246), that it claimed that Marcellus Mason violated. It is really quite a remarkable story in that the Eleventh Circuit spent 14 pages talking about Mason’s supposed violations of these orders, but none talking about their validity which is the reason the appeal was filed in the first place. It could have saved itself some pages and “judicial resources” by simply recognizing the orders are not legal in the first place. However, the Eleventh Circuit chose to give the illusion of “meaningful appeal”.

Pertinent History [Case No. 99-14027-CV-Graham/Lynch]

On June 15, 2000, Docket Entry 199, and July 12, 2000, Docket Entry 231, Maria Sorolis and Brian Koji, Allen, Norton Blue asked Judge Graham’s Magistrate, Frank Lynch, Jr., to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants, the Highlands County Board of County Commissioners. These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL. These orders were granted by the Magistrate, Frank Lynch, Jr., on June 19, 2000 and July 25, 2000.

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

(DE #201). This order is dated June 19, 2000. Additionally, these orders directed that Mason contact these same lawyers prior to making public records request under Florida law. Between June 19, 2000 and July 25, 2000, Mason repeatedly challenged the jurisdiction of the district court via motions and the like. Judge Graham and the Magistrate absolutely refused to state where they got the legal authority from to issue these orders.

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

(DE #246).

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

Judge Graham has held that the above are orders are not “clearly erroneous nor is it contrary to law.” Specifically Judge Donald L. Graham held:

On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary Defendants in this action. Upon notice that Plaintiff was violating this order, Defendants filed a Renewed Motion For Preliminary Injunction. On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants’ Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. Magistrate Judge Lynch also ordered that Plaintiff shall only correspond with Defendants’ counsel.

Plaintiff then moved to rescind the July 25, 2000 order, however, on August 15, 2000, Magistrate Judge Lynch denied Plaintiff’s Motion to Rescind. Plaintiff appeals the August 15, 2000 ruling. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch’s ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).

See Docket Entry No. 407 dated November 2, 2000.

Impetus Of Judge O’Sullivan’s Statement

The act that precipitated Judge O’Sullivan’s statement was a “Motion to Vacate Conviction”, in Case No. 02-14020-CR-Moore, Document No. 106. Case No. 02-14020-CR-Moore was a criminal contempt case based upon Mason’s alleged non-compliance with a clearly void sua sponte issued pre-filing injunction. This is an interesting matter in and of itself, however discussing the nature of this case is not the purpose here. For more information see, mcneilmason.wordpress.com, generally, and specifically a post entitled “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life“. The “Motion to Vacate Conviction” was filed on 07/17/2007, (D.E. #106). Among other things, this motion sought to have the following orders rendered by Judge Graham and his Magistrate, Frank Lynch, Jr., declared unconstitutional:

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), datd 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 motion sought declaratory relief pursuant to Rule 60(b) Fed.R.Civ.P. which in pertinent part states:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (4) the judgment is void;

A Rule 60(b)(4) is not subject to any time limitation. Carter v. Fenner, 136 F.3d 1000,1006 (C.A.5 (La.), 1998); Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130 (C.A.11 (Fla.), 1994)(“the time within which a Rule 60(b)(4) motion may be brought is not constrained by reasonableness”). At page 3, this motion specifically asserts:

On October 16, 2002, the Eleventh Circuit decided the direct appeal, D.C. Case No. 99-14027-CV-Graham, 11th Cir. Case No. 01-13664. In the entirety of the very verbose 14 page (unpublished) opinion, there is no discussion as to why the so-called “discovery orders”,[(D.E. #201); ,[(D.E. #246)] were or were not violative of the First Amendment; however, there is ample discussion about Mason’s so-called violation of these “discovery orders.”

At page 23, this motion specifically requests the following remedy:

A declaration that the so-called “discovery orders”, Case No. 99-14027-CV- Graham, (D.E. #201, dtd. 6-19-2000) and (D.E. #2461, dtd. 7-25-2000), are unconstitutional.

The “Motion to Vacate Conviction”, Document No. 106, uses nine pages, 15-23, of small type, 10 point, to argue that the orders are invalid and unconstitutional. Apparently, Judge O’Sullivan is unable to reach the desired outcome so he just ignores the arguments.

The Defendant, Highlands County Board of County Commissioners, in the lawsuit who was the beneficiary of the court’s largess with respect to the above orders filed no brief against this motion. Consequently, the motion should have been granted by default pursuant to Local Rule 7.1.C which states:

C. Memoranda of Law. Each party opposing a motion shall serve an opposing memorandum of law not later than ten days after service of the motion as computed in the Federal Rules of Civil Procedure. Failure to do so may be deemed sufficient cause for granting the motion by default.

Judge O’Sullivan’s Act of Deception

The following is a direct quote from the Report and Recommendations authored by Federal Magistrate Judge John J. O’Sullivan.

The undersigned notes that in his appeal to the Eleventh Circuit, appellate Case no. 01-13664, the defendant made essentially the same arguments he makes here with respect to Judge Lynch’s Orders (DE# 201 and 246). See Mandate (DE# 929 in 99-cv-14027-DLG, 4/18/03). The defendant argued that the Orders (DE# 201 and 246) violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records. Id. at 11. Notwithstanding the defendant’s arguments, the Eleventh Circuit affirmed the district court’s dismissal of case no. 99-cv-14027-DLG based on the defendant’s continued violations of the orders issued in that case. Accordingly, the defendant’s request for a declaration that Judge Lynch’s Orders (DE# 201 and 246) are unconstitutional should be DENIED.

Report and Recommendations, R&R, Doc. No. 118. If the Eleventh Circuit had declared the orders in question to be valid and constitutional, all Judge O’Sullivan needed to do was say so. Instead Judge O’Sullivan chose to engage in the act of stating deceptive truisms that purposedly evaded the issue. Every word of the Magistrate’s statement is true and there in lies the danger. When the general public or the legal community reads the statement of a federal judge they automatically assume them to be true. If a litigant disagrees with a decision of a judge, he or she is automatically branded a mere “disgruntled litigant”; consequently, the “disgruntled litigant” is not to be believed. There is another alternative and that is the Judge could be untruthful as Judge O’ Sullivan is here. The clear and unmistakable intent of Judge O’Sullivan’s statement is to suggest the orders, DE# 201 and 246, in question were reviewed for validity by the Eleventh Circuit on appeal in Case No. 01-13364. If Judge O’Sullivan read the document he referenced, DE# 929, or page 3 of the motion, Document No. 106, then he clearly would have noticed that the only review of these orders, DE# 201 and 246, consisted solely of the following statement:

On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.”

DE# 929, is 17 pages consisting of three documents: (1)a cover letter from the Eleventh Circuit; (2)a mandate from the Eleventh Circuit; (3)An unpublished “opinion”, Case No. 01-13664, a direct appeal. The quoted statement comes from page 11 of the document and page 9 of the opinion. The undisputed fact is that Judge O’Sullivan was being untruthful. Yet again, Teflon Don, avoids scrutiny again.

Fifth Circuit, US Court of Appeal

The Fifth Circuit, U.S. Court of Appeal has rejected a similar injunction as unconstitutional. According to the Fifth Circuit, U.S. Court of Appeal, Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) an order that an order enjoined a litigant “from communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, its staff, or TES’s counsel, counsel’s employees, or counsel’s staff” constituted an invalid prior restraint and a unconstitutional limitation on free speech. Judge Vanessa D Gilmore in Test Masters who was reversed, while Judge Graham has escaped appellate review because the Eleventh Circuit has declined to review his orders or injunctions for validity in what has to be a record number of times. See this mcneilmason.wordpress.com posting “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“. Yet again, Judge Graham has avoided appellate rebuke while his colleagues have not be so fortunate. Judge Graham has frequently benefited by such disparate treatment. See postings, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge” and ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal“. The myth of the “Teflon Don” grows larger!

Pertinent History [Case No. 99-14027-CV-Graham/Lynch]

On June 15, 2000, Docket Entry 199, and July 12, 2000, Docket Entry 231, Maria Sorolis and Brian Koji, Allen, Norton Blue asked Judge Graham’s Magistrate, Frank Lynch, Jr., to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants, the Highlands County Board of County Commissioners. These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL. These orders were granted by the Magistrate, Frank Lynch, Jr., on June 19, 2000 and July 25, 2000.

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

(DE #201). This order is dated June 19, 2000. Additionally, these orders directed that Mason contact these same lawyers prior to making public records request under Florida law. Between June 19, 2000 and July 25, 2000, Mason repeatedly challenged the jurisdiction of the district court via motions and the like. Judge Graham and the Magistrate absolutely refused to state where they got the legal authority from to issue these orders.

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

(DE #246).

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

Judge Graham has held that the above are orders are not “clearly erroneous nor is it contrary to law.” Specifically Judge Donald L. Graham held:

On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary Defendants in this action. Upon notice that Plaintiff was violating this order, Defendants filed a Renewed Motion For Preliminary Injunction. On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants’ Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. Magistrate Judge Lynch also ordered that Plaintiff shall only correspond with Defendants’ counsel.

Plaintiff then moved to rescind the July 25, 2000 order, however, on August 15, 2000, Magistrate Judge Lynch denied Plaintiff’s Motion to Rescind. Plaintiff appeals the August 15, 2000 ruling. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch’s ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).

See Docket Entry No. 407 dated November 2, 2000.

Eleventh Circuit, U.S. Court of Appeal

Case No. 01-13664. The Eleventh Circuit,
Judge Stanley F. Birch, Jr., Judge Susan H. Black, and Judge Stanley Marcus, rendered a prolix 14 page opinion on October 16, 2002 that does not discuss the validity of these orders. It is quite remarkable in that The Eleventh Circuit is single-mindedly focused on alleged out of court communications with his government by Mason as alleged violations of the orders above while steadfastly refusing to review the validity of these orders. On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.” See Pg. 10. Even though The Eleventh Circuit admitted the orders in question were being tested for validity on appeal, The Eleventh Circuit refused to review these orders for validity.

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.

Judge Graham Disagrees With The Fifth Circuit, U.S. Court of Appeals

April 23, 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, a district judge, would disagree with the Fifth Circuit, 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.

In Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559 (Fed. 5th Cir., 2005), the district court “enjoined Singh from “communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, staff, counsel, counsel’s employees, or counsel’s staff.” Similarly, Judge Graham “enjoined” Mason from communicating with his local government, Highlands County Board of County Commissioners. However, Judge Vanessa D Gilmore in Test Masters who was reversed, while Judge Graham has escaped appellate review because the Eleventh Circuit has declined to review his orders or injunctions for validity in what has to be a record number of times. See this site’s posting “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“. Yet again, Judge Graham has avoided appellate rebuke while his colleagues have not been so fortunate. Judge Graham has frequently benefited by such disparate treatment. See postings, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge” and ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal“. The myth of the “Teflon Don” grows larger!

Judge Graham Disagreements With The Fifth Circuit

Judge Graham has multiple disagreements with the Fifth Circuit. Specifically, “Teflon Don”, holds the following disagreements with the Fifth Circuit:

  • Judge Grahams disagrees that his orders or injunctions but “pre-trial discovery issues”.
  • Judge Graham has ruled that Federal Magistrate, Frank Lynch, Jr. may issue an injunction so long as he calls it a “pre-trial discovery issue and not an injunction per se”
  • Judge Graham can prohibit or enjoin direct communication between a pro se Plaintiff and his local government
  • Judge Graham is not required to comply with Rule 65, Fed.R.Civ.P.
  • Judge Graham has the power to dismiss a lawsuit due to lawful out of court communications with the Government

Judge Graham’s Injunction or “Pretrial Discovery Issue and Not An Injunction Per Se”

Judge Graham’s Magistrate, Frank Lynch, Jr., rendered the following orders on June 19, 2000 and July 25, 2000, which 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.”

(DE #246).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.

Communications Outlawed by Judge Graham

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

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

D.E. 511, ¶6, PG.3).

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

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

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

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

Acrimony and Vitriol Between the Test Master’s Litigants

The district court’s injunction was prompted by allegations from TES that Singh and his employees had called TES dozens of times a day, including seventy-one times on one day in May 2003. TES alleged that the calls included the screaming of obscenities. TES also claims that Singh’s counsel, Sharon Naim, contacted TES’s president, Roger Israni, and threatened to file suit against TES in other states. TES taped the phone conversation and offered it as evidence that Singh had Naim call Israni directly, which is against the rules of professional conduct for lawyers. TES avers that another person acting on behalf of Singh called the accounting department of TES’s counsel, pretended to be a TES staff member, and obtained billing and insurance information about TES. TES also recorded a conversation with another of Singh’s counsel who called TES offices in August 2003, pretending to be a student in order to gain information about TES. TES contends that it has a recording of that conversation. Finally, TES alleges that Singh sent a letter to TES’s insurer, informing the insurer that it should not cover TES’s costs should TES lose in court. In addition, TES’s counsel and Singh did engage in a verbal and physical altercation in the hallway outside the district courtroom in California after TES’s counsel accused Singh of verbally and physically threatening them. Singh denies threatening TES’s counsel. The district court in California had to order the parties and their counsels to go straight from the courtroom to their cars and threatened them with jail time if another incident occurred.
See Test Masters at 579.

Court’s Legal Analysis

Prior restraints are “administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). The district court’s order enjoining Singh from having any future communication with the specified persons was a prior restraint. Any system of prior restraints on communication bears a heavy presumption against its constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (quotation marks omitted). Prior restraints are unconstitutional limitations on free speech except in exceptional circumstances. Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

Court’s Conclusion

The district court prohibited Singh from “communicating directly with . . . TES employees, staff or TES’s counsel, counsel’s employees, or counsel’s staff.” To quote selectively from the district court, the court found that the parties had demonstrated an “immaturity” and “mean-spirited[ness],” and that Singh was pursuing “vexatious litigation.” However, despite the perhaps need of these parties to never speak again, the court did not detail, and the record does not reflect, any “exceptional circumstances” to justify permanently enjoining Singh from generally communicating with TES, TES’s counsel and their staff and employees. The district court’s order enjoining Singh from communicating with TES employees, TES’s counsel, and its counsel’s employees was a prior restraint limiting Singh’s first amendment rights, and because the injunction order is not supported by exceptional circumstances, it is an unconstitutional restraint on Singh’s free speech rights.Testmaster at 579.

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

April 22, 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 second of two posting on this site where this has happened. Judge Daniel T. K. Hurley met a similar fate. See posting this site, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge“. It is difficult to see how such a system advances the notion of equal justice. It would seem that justice is a function not of the “rule of law”, but of whether or not the judge is favored by the appellate courts.

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

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

    A US Circuit Judge On the Potential Dangers of Unpublished Opinions

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

    Publication

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

    The Law on Rule 41(b) Dismissals

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

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

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

    Facts Supporting Rule 41(b) Dismissal

    Judge Graham

    On June 20, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:
    [I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” See Docket Entry No. 201

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

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

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

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

    In this case, the Eleventh Circuit stated:

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

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

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

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

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

    See Opinion, pg. 10.

    On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.

    See Opinion, pg. 9.

    Judge Ungaro-Benages

    The case was dismissed because of the following:

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

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

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

    Additional Issues Faced by Judge

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

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

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

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

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

      See Opinion, pg. 10.

      On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.

      See Opinion, pg. 9.

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

April 21, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham

Who Are the Defendants?

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

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

(1) Notwithstanding any provision of law to the contrary—
(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief,..
.” 28 U.S.C. 636(b)(1)(a).

On June 20, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:
[I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” See Docket Entry No. 201

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

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

Communications Judge Graham Deemed Unlawful

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

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

D.E. 511, ¶6, PG.3).

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

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

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

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

Mere Technicalities

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

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

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

Judge Graham’s Opinion

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

June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary injunction prohibiting the Plaintiff from contacting any of the Defendants in this action…On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants’ Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch’s ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).

See Docket Entry 407.

Definition of Injunction

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

Appellate Oddessy and Gauntlet

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

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

    Case No. 01-13664-A

    The panel that sat for this appeal included: Judge Stanley F. Birch, Jr., Judge Stanley Marcus, and Judge Susan Black. The Eleventh Circuit pulled very some very dishonest acts of trickery and chicanery in this unpublished opinion and appeal. One of these acts was stating that Marcellus Mason violated these injunctions and that Judge Graham was justified in dismissing the lawsuit based upon these alleged violations, but the Eleventh Circuit absolutely refused to review these same orders for validity. The appellate review consisted solely of the following acknowledgment: “On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records…” See Case No. 01-13664 Opinion, Pg. 9. In this very verbose and prolix opinion, there is no other discussion about the validity of these orders. When told that they had “overlooked” or “forgot” to test the very validity of the orders they claimed that Mason had violated, Judge Stanley F. Birch and the Eleventh Circuit replied: “The petition(s) for rehearing filed by Appellant, Marcellus M. Mason, Jr., is DENIED“. See Order. Perhaps the most egregious act of dishonesty that the Eleventh Circuit pulled in this appeal was that they struck Mason’s brief for arguing against a sua sponte issued prefiling injunction because it was “beyond the scope of appeal”; and when the Eleventh Circuit rendered its opinion, it used the very same sua sponte issued pre-filing injunction or vexatious litigant injunction, that it claimed was “beyond the scope of appeal”to affirm “teflon don”. See “Putrid Dishonesty:Beyond the Scope of Appeal“.

Eleventh Circuit Repeatedly Refuses To Review Orders For Validity

April 12, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham

PURPOSE OF THIS PAGE

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

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

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

A US Circuit Judge On the Potential Dangers of Unpublished Opinions

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

First Amendment

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


Pertinent History [Case No. 99-14027-CV-Graham/Lynch]

On June 15, 2000, Docket Entry 199, and July 12, 2000, Docket Entry 231, Maria Sorolis and Brian Koji,Allen, Norton Blue asked Judge Graham’s Magistrate, Frank Lynch, Jr., to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants, the Highlands County Board of County Commissioners. These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL. These orders were granted by the Magistrate, Frank Lynch, Jr., on June 19, 2000 and July 25, 2000.

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

(DE #201). This order is dated June 19, 2000. Additionally, these orders directed that Mason contact these same lawyers prior to making public records request under Florida law. Between June 19, 2000 and July 25, 2000, Mason repeatedly challenged the jurisdiction of the district court via motions and the like. Judge Graham and the Magistrate absolutely refused to state where they got the legal authority from to issue these orders.

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

(DE #246).

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

Judge Graham has held that the above are orders are not “clearly erroneous nor is it contrary to law.” Specifically Judge Donald L. Graham held:

On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary Defendants in this action. Upon notice that Plaintiff was violating this order, Defendants filed a Renewed Motion For Preliminary Injunction. On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants’ Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. Magistrate Judge Lynch also ordered that Plaintiff shall only correspond with Defendants’ counsel.

Plaintiff then moved to rescind the July 25, 2000 order, however, on August 15, 2000, Magistrate Judge Lynch denied Plaintiff’s Motion to Rescind. Plaintiff appeals the August 15, 2000 ruling. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch’s ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).

See Docket Entry No. 407 dated November 2, 2000.

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


ELEVENTH CIRCUIT REFUSES APPELLATE REVIEW

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

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


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

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

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

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

Eleventh Circuit Uses Concocted Procedural Arguments to Avoid Appellate Review

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

  1. Case No. 01-13664. The Eleventh Circuit,
    Judge Stanley F. Birch, Jr., Judge Susan H. Black, and Judge Stanley Marcus, rendered a prolix 14 page opinion on October 16, 2002 that does not discuss the validity of these orders. It is quite remarkable in that The Eleventh Circuit is single-mindedly focused on alleged out of court communications with his government by Mason as alleged violations of the orders above while steadfastly refusing to review the validity of these orders. On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.” See Pg. 10. Even though The Eleventh Circuit admitted the orders in question were being tested for validity on appeal, The Eleventh Circuit refused to review these orders for validity.
  2. Case No 01-15754 Among other things, The Eleventh Circuit, Judge Susan H. Black, Judge Rosemary Barkett, and Judge Stanley Marcus. The Eleventh Circuit, again refuses to address this issue. In fact, the entirety of the opinion is: The Eleventh Circuit “petition for writ of mandamus and petition for writ of prohibition” is DENIED.”
  3. Case No. 02-13418. This lawsuit was filed against Judge Graham and his Magistrate, Judge Frank Lynch, Jr., for issuing these orders. In an opinion rendered on Dec. 6, 2002, The Eleventh Circuit, Judge Ed Carnes,Charles R. Wilson, and Phyllis A. Kravitch, again declined to discuss the validity of these orders while asserting in a mere conclusory fashion that the Judges have absolute immunity. In reading the opinion, one can not determine what the judges are immune from.
  4. Case No. 01-13664. Mason filed a Appellant’s Renewed Motion For Summary Reversal on or about September 25, 2002. Yet again The Eleventh Circuit refuses to discuss the validity of these orders.
  5. Case No. 01-11305. On April 26, 2001, the Eleventh Circuit, Judge Ed Carnes, yet again refused to review the validity of theses orders.“With regard to his requests for relief from the order granting the defendants’ motions for preliminary injunction, which the court construed as preliminary discovery motion, Mason has alternative remedy. He may either comply with the district’s courts discovery order and challenge it on appeal from the final judgment, or refuse to comply with the order and challenge its validity if cited for contempt”. See Mandamus Petition. Was Mason supposed to wait until the end of trial to get his First Amendment rights back? The Eleventh Circuit has answered this question with a resounding no. “[I]t is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.KH Outdoor, LLC v. Trussville, 458 F.3d 1261, 1271-1272 (11th. Cir. 2006); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). The Eleventh Circuit declined to review these orders via interlocutory appeal because they were characterized as “discovery orders” by the district court”. However, it is well established that an appellate court is not bound by a district court’s characterization of its own orders with respect to appellate jurisdiction. United States v. Hylton, 710 F.2d 1106 (5th Cir. 1983). United States v. Jorn, 400 U.S. 470 (1971).

  6. Judge Graham and Magistrate Refuse to Cite Legal Authority

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

    Docket No. 279 Docket No. 281
    Docket No. 407

    Docket No. 524

    Docket No. 528
    Docket No. 634
    Docket No. 744 Docket No. 745 Docket No.874 Pg. 2
    Docket No. 882
    Docket No. 890

    Docket No. 928

    Docket No. 931

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

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

    Docket No. 281

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


    BANNED OUT OF COURT DIRECT GOVERNMENT COMMUNICATIONS

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

    D.E. 511, ¶6, PG.3)


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

    D.E. 511, ¶7, PG.3)


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

    D.E. 511, ¶8, PG.4)


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

    D.E. 511, ¶9, PG.4)


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

    D.E. 511, ¶10, PG.4)


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

    D.E. 511, ¶11, PG.4)


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

    D.E. 511, ¶15, PG.5)


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


    (D.E. 646, ¶10, PG.3)


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

    (D.E. 646, ¶11, PG.4)


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

    (D.E. 646, ¶12, PG.4)



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

    (D.E. 646, ¶13, PG.4)


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

    (D.E. 646, ¶14, PG.4)