ELEVENTH CIRCUIT

On January 25, 2002, Judge Donald L. Graham awarded $200,000 in attorney's fees against an indigent Plaintiff.  See Docket Entry No. 891, (D.E. #891).  This massive award was not based upon the quality of the lawsuit or whether it was frivolous or not, because Judge Graham had summary judgments submitted by both the Plaintiff and the Defendant that he refused to rule on.  Quintana v. Jenne, 414 F.3d 1306 (Fed. 11th Cir., 2005)("prevailing defendants may receive attorney's fees only when the plaintiff's case is "frivolous, unreasonable, or without foundation "). 

The Eleventh Circuit, United States Court of Appeal, said that it was frivolous to file an appeal of an award of $200,000 in attorney's fees.  This appeal was assigned Case No. 02-10868-A by the Eleventh Circuit.  On August 23, 2002, the Eleventh Circuit, and Judge Charles Wilson, stated: "Appellant's motion for leave to proceed on appeal in forma pauperis is DENIED because the appeal is frivolous.  Pace v. Evans, 709 F.2d 1428 (11th Cir. 1983)."   See Order dtd. Aug. 23, 2002.  The Eleventh Circuit does not state why it thinks an appeal of a $200, 000 award of attorney's fees is frivolous.  On October 17, 2002, denying 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.   

TABLE OF CONTENTS

Report and Recommendation

Order Adopting Report and Recommendation

Final Judgment

Notice of Appeal

INJUNCTION OF SEPTEMBER 20, 2001

CASE SUMMARY

(D.E. #XX)=Docket Number.  

QUICK FACTS

Trial Court Docket available on this website.  

This was a civil case filed in February 1999, Case No. 99-14027-CIV-Graham, Marcellus M. Mason v.  Heartland Library Cooperative, Highlands County Board County Commissioners, et.al.. Marcellus Mason was permitted to proceed without paying the filing fee or in forma pauperis, "IFP" because he was unable to pay a filing fee of $150.00.  See Docket Entry No. 3, (D.E. #3).  This Case was originally assigned to Judge Edward Davis who retired during the pendency of this lawsuit.  Judge Donald L. Graham was ultimately assigned this case.  This case was closed on June 20, 2001 because Mason was alleged to have communicated with Highlands County in violation of an injunction rendered by Magistrate Judge Frank Lynch.  On June 20, 2001, when the case was closed there were summary judgment pending by both the Plaintiff and the Defendant.  See Docket Entries Nos.  507, 667, 668, 705, 706 by the Plaintiff and Nos. 769, 770, 731, 698, 699 by the Defendants.   Consequently, he facts supporting the lawsuit were not considered by Judge Graham.  

The Award of Attorney's fees was based upon invalid sua sponte issued pre-filing injunction rendered after the case was closed and on appeal.   

On June 25, 2001, Mason filed a notice of appeal.  (D.E. #795).   The Eleventh Circuit docked this case under docket No. 01-13664-A.  On September 20, 2001, Judge Graham issued a pre-filing injunction "sua sponte" or on his own motion.  See Injunction, below.  U.S. Court of Appeals, including the Eleventh Circuit,  have routinely, without variation rejected sua sponte issued filing injunctions, or filing injunctions issued without notice and opportunity to respond prior to issuance as violative of due process.  See mmason.orgfree.com/RejectSuaSponte.htm .

LAW ON AWARDING ATTORNEY'S FEES.

The law on awarding attorney's fees in civil rights cases is controlled by the Supreme Court's case, Christianburg Garment Co. v. EEOC , 434 U.S. 412 (1978).  "In Christianburg Garment Co. v. EEOC , 434 U.S. 412 (1978), the Supreme Court enunciated the relevant criteria governing an award of attorney's fees to a prevailing Title VII defendant. The Court held that attorney's fees awards in such cases are appropriate "upon a [district court's] finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christianburg , 434 U.S. at 421 ."  Sayers v. Stewart Sleep Center, Inc., 140 F.3d 1351 (11th Cir. 1998).  

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).  

REPORT AND RECOMMENDATION AWARDING $200,000 IN LEGAL FEES  

Judge Graham's Magistrate, Frank Lynch, Jr., wrote the following:

The District Court dismissed the Plaintiffs claims, with prejudice, for the Plaintiff's repeated refusal to comply with the Court's rules and orders. The District Court also entered an order on September 20, 2001, in this case and other associated cases filed by the Plaintiff, ordering the Plaintiff-to be permanently enjoined from filing any additional pleadings in the cases he presently has filed or from filing any new lawsuits relating in any way to his former employment and/or subsequent interactions with the Defendants without receiving prior written permission from the Court. In that order,  Judge Graham specifically found this present case to be "vexatious and relentless litigation on the part of Mason ." Judge Graham referred to various statements in e-mails and pleadings filed by the Plaintiff to support the Court's order enjoining the Plaintiff from filing any further pleadings. In previous Orders and Reports and Recommendations, this Court has also referred to various excerpts from the Plaintiffs pleadings and e-mails to counsel for the Defendants in which it is clear that the Plaintiff had no intention of abiding by the Court's rules, the law applicable to cases of this nature and is motivated by bad faith and vexatious behavior. 2. Judge Graham's order of September 20, 2001, refers to various e-mails from the Plaintiff which state: See Report and Recommendation, "R&R", (D.E. #882, pgs. 1-2). Judge Graham's order of September 20, 2001, also makes a specific finding of bad faith . Judge Graham stated, "It has become clear to the Court that Mason is proceeding in bad faith. See Report and Recommendation, "R&R", (D.E. #882, pgs. 3). Judge Graham stated that such activity is in bad faith and will not be permitted by the Court. Even though bad faith is not a prerequisite to an award of attorney's fees to a prevailing defendant, if the plaintiff is found to have brought such a civil rights action or to have continued such an action in bad faith, there will be an even stronger basis for charging him with attorney's fees incurred by the defense. Here, it is clear that based upon Judge Graham's previous findings of bad faith,...See Report and Recommendation, "R&R", (D.E. #882, pgs. 3). "This takes the case beyond the analysis of frivolity."  See Report and Recommendation, "R&R", (D.E. #882, pgs. 4). The Plaintiff has filed numerous affidavits seeking in forma pauperis status in this and in the many other lawsuits that he has filed . The District Court has denied his request for in forma pauperis status in respect to filing of his lawsuits . Nevertheless, the Court should consider those financial affidavits, signed under oath, in respect to the Plaintiffs ability to pay any award of attorney's fees in this case. "See Report and Recommendation, "R&R", (D.E. #882, pgs. 6). Based upon the financial affidavits filed by the Plaintiff herein, this Court finds it hard to believe that he could pay an award of $403,350 .66 in attorney's fees . In fact, there are very few individual litigants who appear before this Court who would have the financial ability to pay such an award without subjecting that individual to financial ruin . As the Eleventh Circuit stated in Durrett, the District Court should ascertain whether, in light of the plaintiffs ability to pay, a reduced assessment would fulfill the deterrent purpose without subjecting the plaintiff to financial ruin . This Court finds that such a reduction is appropriate in this case." See Report and Recommendation, "R&R", (D.E. #882, pgs. 7). This Court is willing to give the Plaintiff the benefit of the doubt and reduce the award of attorney's fees to a level which this Court believes would act as a deterrent to any reasonable person, keeping in mind that this Court does not believe that it is going to "cost" the Defendants any money since the Plaintiff does not appear to have the financial ability to pay anything . Based upon all of the foregoing, this Court is going to recommend to the District Court that the total attorney's fees of $403,350 .00 be reduced to a total of $200,000.00. See Report and Recommendation, "R&R", (D.E. #882, pgs. 8).  

ORDER ADOPTING REPORT AND RECOMMENDATION

Judge Graham did a mere one page "de novo" review and adopted in the Report and Recommendation in its entirety on January 25, 2002.  See Docket Entry No. 891, (D.E. #891).

FINAL JUDGMENT

NOTICE OF APPEAL

A Notice of Appeal was filed on February 7, 2002.  See Docket Entry, (D.E. #896).  

INJUNCTION OF  SEPTEMBER 20, 2001.  

On September 20, 2001, Judge Graham rendered a pre-filing injunction against the Plaintiff Marcellus M. Mason sua sponte or own his motion. "" See Docket Entry NO. 878, (D.E. #878, pg. 3).  This order requires that Mason seek the permission of the court prior to filing a lawsuit or any motion concerning a lawsuit already filed.  This is extraordinary action and only to be applied in the most extreme circumstances.  The legality of this injunction need not be argued in length here because such arguments are set forth in two links presently on this website. See http://mmason.orgfree.com/SuaSponte.htm and mmason.orgfree.com/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm . Suffice it to say that this pre-fling injunction was issued sua sponte, and thus has been declared, without variation by every federal court to have considered the matter.   This injunction also makes a "finding of bad faith".  Such a finding requires due process as well. " A court should be cautious in exerting its inherent power and "must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees."  See Byrne v. Nezhat, 261 F.3d 1075 (11th Cir., 2001). For more legal authority on bad faith, see mmason.orgfree.com/badfaith.htm .  

CASE SUMMARY

The Defendant(s) in this case and all other related cases,  the Highlands County Board County Commissioners, is a GOVERNMENT.  Highlands County is located Sebring, Florida which is South Central Florida.  Judge Graham's office is in Miami, Florida, or approximately 160 miles from where I reside in Sebring, Florida. Maria Sorolis and Brian Koji of Allen, Norton & Blue reside and work in Tampa, Florida, or some 90 miles away from Sebring, Florida.  Court papers are filed in Fort Pierce, Florida, or some 75 miles away from Sebring, Florida. 

On June 19, 2000 and July 25, 2000, a Magistrate Judge, Lynch, issued the following directives:

               “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),
              page 2 of 2 pages.

“Plaintiff shall correspond only with Defendants' counsel including
              any requests for public records.” (DE #246), page 2 of 2 pages.
              “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),
         page2 of 2 pages.

Judge Graham and his Magistrate, Frank Jr., (Frank Lynch Jr), decided they had the authority to prohibit me from speaking to my government out of court unless I had the permission of Allen, Norton, & Blue, a private lawfirm.  Judge Graham and his Magistrate, Frank Jr., (Frank Lynch Jr) have never stated where they got this authority from.   On June 20, 2001, Judge Graham decided to dismiss my lawsuit because he alleged that I communicated with my government, Highlands County Board County Commissioners, without the permission of private for profit attorneys.  See  (DE #766), page 2, page 3, page 4, and page 5; Pdf  format   (DE #791), page 2.  Pdf format.  I repeatedly and incessantly challenged the jurisdiction of the court with  respect to these illegal injunctions, (DE #201), page 2,  (DE #246), page 2  ,  however, Judge Graham absolutely refused to state where he got the legal authority to issue the orders in question.  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), page 2,(DE #246), page 2,;(Doc. #279);(Doc. 281);(Doc. #407, pg. 2  );(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).