Undermining
an Appeal Right
See how the Eleventh Circuit undermines an appeal that
attacks Judge Donald L. Graham for misconduct. The
Allegations of misconduct never reach the light of day.
Additionally, the Eleventh Circuit is also adept at undermining
a petition for mandamus to conceal Judge Graham's
misconduct.
Judge Graham's Blog A quick summary of Judge
Donald L. Graham's Lawless and Arrogant Behavior
Refusal to
Discuss Appellate Issues
Describes how the Eleventh Circuit evades issues on appeal in
order to get the desired outcome. The Eleventh Circuit is quite
adept at this tactic.
Judge DONALD L. GRAHAM:
"I CAN CONCOCT A
VOID ORDER THAT VIOLATES YOUR DUE PROCESS RIGHTS AND MISSTATES MATERIAL
FACTS AND HOLD YOU IN
CRIMINAL CONTEMPT !!!"
The Eleventh Circuit and Judge
Donald L. Graham have used a patently illegal "filing injunction" to
gain a conviction for criminal contempt of a wartime U.S. Army veteran
that has never been convicted of crime in his life. They have
managed to do this through a series of "unpublished opinions" that turn the "rule
of law" on its head, but rather it is the "law of the
ruler".
The story is incredible and seemingly fanciful, but it is well
documented with actual record documents.
AUSA, Robert Waters, who failed in his duty to
investigate the matters discussed here, stated in his Information:
Beginning
on or about September 20, 2001, and continuing to on or about November
1, 2002, in Highlands County, Dade county, and elsewhere, in the
Southern District of Florida, the defendant, MARCELLUS M . MASON, Jr .,
did willfully and knowingly disobey and resist a lawful order of a
Court of the United States, that is, the order issued by the Honorable
Donald L . Graham, United States District Judge, on September 20, 2001,
in the Southern District of Florida, in the case of Marcellus M . Mason
v. Highlands County Board of County Commissioners, et al ., Case
Numbers ...
Marcellus Mason was convicted of criminal contempt for
violating this "filing injunction" or
order of September 20, 2001,
notwithstanding the following facts:
The Eleventh Circuit have refused to allow Mason the
opportunity to appeal this filing injunction on several occasions and
for a different reason each time. See Direct Appeal, Case
No. 01-13664, and Mandamus Case No. 01-15754,
Case No. 04-11894 [see below]
[PDF,
04-11894], 05-10623-I.
The goal posts keep shifting.
The contempt trial itself was violative of Mason's
rights. The Federal Public Defender filed absolutely no pretrial
motions. Mason was not allowed his sixth amendment right to
confront and cross-examine Judge Graham. Mason did not "file" any
documents. Mason's right to a speedy trial under the sixth
amendment was violated. For a full accounting see Contempt
Abuse.
Case No. 99-14027SUMMARY
Marcellus M. Mason, Jr. originally filed a lawsuit in the Southern
District of Florida bearing Case No.99-14027-CIV-Graham. This
case was ultimately assigned to Judge Donald L. Graham. This case
has had multiple appeals and petitions for mandamus associated with it.
e.g.. Eleventh Circuit Case Nos. , 01-11305, 01-15754-A,
01-13664, 01-11850 ; This case has had almost 1000 docket entries
on the Pacer System. SeePacer
Docket Sheet. The Defendant in this case and all other
related cases, the Highlands County Board County Commissioners,
is a GOVERNMENT entity. Highlands
County is located Sebring, Florida which is in South Central
Florida. Judge Graham's office is in Miami, Florida, or
approximately 160 miles from where Mason resides in Sebring,
Florida. Maria Sorolis
[msorolis@anblaw.com] and Brian Koji [bkoji@anblaw.com ]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. This lawsuit alleges
discrimination, among other things, under Title VII, the ADA, and
violations of §§ 1981, 1983, 1985 against the Highlands
County Board County Commissioners and other government defendants
and/or their agents. Maria
Sorolis[msorolis@anblaw.com], Allen,
Norton & Blue, asked Judge Graham's court for injunctions that
would prohibit Marcellus Mason, a non-lawyer, from speaking to his
government directly [Highlands County Board of
County Commissioners] and prohibit him from making
Florida Public records request directly to his government [Highlands
County Board of County Commissioners]. On June 19, 2000 and July 25,
2000, Judge Donald L. Graham's Magistrate, Frank Lynch issued two
injunctions, (Docket Entry Nos. 201 and 246) "government speaking
prohibitions", the Magistrate Judge, Frank Lynch, Jr., issued the
following directives:
“Plaintiff
shall be
prohibited from contacting any of the Defendants,including
their supervisory employees and/or the
individualDefendants,
regarding any matter related to this
case.”(DE
#201)
Using literal and mathematical substitution for Judge
Graham's "order" yields the following:
“Plaintiff
shall be
prohibited from contacting any of the [GOVERNMENTS],including
their supervisory employees and/or the
individual[GOVERNMENTS],
regarding any matter related to this
case.”
“Plaintiff
shall correspond only with Defendants' counsel
includingany
requests for public records.” (DE
#246), page 2 of 2
pages.
On September 20, 2001, Judge Graham reaffirmed his
prohibition of
direct communication with the Government.
[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.
Using literal and mathematical substitution for Judge Graham's
order yields the following:
including
continual attempts to
directly communicate with the [GOVERNMENT] rather their attorneys, the
Court enjoined Mason from any further contact with the [GOVERNMENT] or
[GOVERNMENT] 'S employees. Mason, however, ignored the Court's order
and
continued to contact the [GOVERNMENT] .
Judge Graham ultimately dismissed this
case on June 20, 2001, not on the merits, but because Marcellus Mason
dared to communicate with his government, the Highlands County Board of County
Commissioners, directly.
The case was promptly noticed for appeal on June 25, 2001. See Eleventh Circuit's
receipt. After Judge Graham got tired of inquiries from
Marcellus Mason about his legal authority to issue the "government speaking
prohibitions", Judge Graham refused to answer the inquiries and then
issued the "filing injunction" on
September 20, 2001 [Docket
Entry No.
878].
LEGAL PROBLEMS ASSOCIATED WITH FILING
INJUNCTION
ISSUED
WITHOUT NOTICE AND OPPORTUNITY TO RESPOND
The fact the filing injunction was issued without notice and
opportunity to respond makes the filing injunction illegal and
void. Judge Graham proudly exclaims on the very first page of
narrative [page 3] of the filing
injunction: "THIS CAUSE
came before the Court sua sponte."
Sua sponte means on his own or
Judge Graham's motion. Sua Sponte issuance of filing injunctions
are patently illegal and void because a
party must be given notice and opportunity to respond prior to
the issuance of a filing injunction. In GILBERT LAU v. MARK M. MEDDAUGH,
Docket No. 99-9363 Decided: October 05, 2000), U.S. 2nd Circuit Court
of
Appeals, the Court stated: ""[t]he
unequivocal rule in this circuit is that the district court may not
impose a filing injunction on a litigant sua sponte without providing
the litigant with notice and an opportunity to be heard.""
More importantly, the Eleventh Circuit, USCA, Judge Graham's boss has
stated:
Inherent Authority. At
page 6, Judge Graham asserts that he is using his inherent authority to
issue the filing injunction: ""[t]he
unequivocal rule in this circuit is that the district court may not
impose a filing injunction on a litigant sua sponte without providing
the litigant with notice and an opportunity to be heard.""
The ultimate authority on law in the United States, The United States
Supreme Court, whom Judge Graham appears to have little respect for,
has stated:
"A court must, of course,
exercise caution in invoking its inherent power, and it must comply
with the mandates of due process..."
REFUSED TO
ALLOW APPELLATE REVIEW BY DISHONEST AND DIRTY TRICKS
On direct appeal, The Eleventh Circuit Case No. 01-13664-A, struck
Appellant/Plaintiff Marcellus Mason's brief for arguing against
the filing injunction or order of September 20, 2001 because the
Eleventh Circuit claimed the filing injunction was beyond the scope of
appeal. However, when the Eleventh Circuit rendered their
decision on October 16, 2002, it then used this same
injunction of September 20, 2001 to affirm Judge Graham and conceal
his misconduct. The filing injunction was needed to justify Judge
Graham's Fed.R.Civ.P. Rule 41(b) dismissal of the underlying civil
case. FAILURE TO
INDENTIFY FRIVOLOUS LITIGATION
Mason has never filed any lawsuit that was adjudged to be frivolous,
nor does Judge Graham identify any lawsuit that was frivolous.
Courts enter filing injunctions to stop the filing of frivolous
lawsuits, not meritorious ones. “Absent
extraordinary circumstances, such as a demonstrated history of
frivolous and vexatious litigation, or a failure to comply with
sanctions imposed for such conduct, a court has no power to prevent a
party from filing pleadings, motions or appeals authorized by the
Federal Rules of Civil Procedure.” Richardson Greenshields
Securities, Inc v. Lau, 825 F.2d 647, 652 (2nd Cir. 1987).
It is not unlawful under to prosecute a meritorious action. See Bill Johnson's Restaurants, Inc.
v. NLRB, 461 U.S. 731, 743 (1983). “Access to the courts is a fundamental
tenet of our judicial system; legitimate claims should receive a full
and fair hearing no matter how litigious the plaintiff may be.”
In re Oliver, at 682 F.2d 446. “[A]ffinity for litigation,
standing alone, would not provide sufficient justification to issue an
injunction.” Castro
v. United States, 775 F.2d 399, 408 (1st Cir. 1985); In re Oliver, at 682 F.2d
446 (“litigiousness alone would not
support an injunction restricting his filing activities.”); Tripati, at 878 F.2d
353(“Litigiousness alone will not support an injunction restricting
filing activities.”); Ruderer
v. United States, 462 F.2d 897, 899 (8th Cir. 1972); Carter v. Electron, Inc.,
452 F. Supp. 944, 990 (S.D. 1977). “An adequate record for review should
include a listing of all the cases and motions that led the district
court to conclude that a vexatious litigant order was needed.”
De Long, at 912 F.2d
1148; Cok v. Family Court Of
Rhode Island, 985 F.2d 32, 35 (1st Cir.1993)(requiring a
sufficiently developed record be presented for review); Tripati, at 878 F.2d 353
(“injunctions are proper where the litigant's abusive and lengthy
history is properly set forth.). Cok, at 985 F.2d 32,
35(holding that it would have been helpful had the court identified
what previously filed frivolous cases); Urban v. United Nations,
768 F.2d 1497, 1500 (D.C. Cir. 1985)(holding that an injunction’s
purpose is to fashion a remedy to stem the flow of frivolous actions);Kondrat v. Byron, 587 F.
Supp. 994, 998 (N. D. Ohio 1984)(noting that injunctions are proper
when “ the plaintiffs had filed an uniquely large number of frivolous
cases”); De Long, at
912 F.2d 1148.
LACKED
JURISDICTION
Judge Graham did not have jurisdiction to enter the order of September
20, 2001 because of the following:
The filing injunction or order of September 20, 2001 was not a collateral issue
and the matter was on appeal since June 25, 2001.
Judge Graham was required to disqualify due to misconduct
and mismanagement long before he rendered the order of September 20,
2001. See Undermining
An Appeal Right. This misconduct and
mismanagement included, but is not limited to the
following: (1)refusing and never ruling on a motion for preliminary
injunction; (2)Allowing scores of pretrial motions to languish for
months without taking any action;(3)Lying and Intentionally
misrepresenting the law with respect to 42 U.S.C Section 1981 claims;
(4)Falsely completing a Civil Justice Reform Act Report (CJRA);
(5)Usurping legal authority by telling Mason he must seek the
permission of a private for profit law firm in order to communicate
with the government and request Public records under Florida law;
(6)criminal abuse of the contempt procedure.
COLLATERAL
ORDERS ARE MALLEABLE: HAVING IT BOTH WAYS
"The filing of a notice of appeal is
an event of jurisdictional significance — it confers jurisdiction
on the court of appeals and divests the district court of its control
over those aspects of the case involved in the appeal." Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982). In their
"unpublished order" of May 20, 2004, Case
No. 01-11894, denying
mandamus relief to Mason, the Eleventh concurred with the above:
[A]s a general rule, the filing of
a notice of appeal divests the district court of jurisdiction over
those aspects of the case that are the subject of the appeal.
However, it may not divest the district court of jurisdiction over
collateral matters not affecting the questions presented on appeal.
ELEVENTH CIRCUIT'S [CASE NO.
04-1194] MAY 2004 UNPUBLISHED OPINION
In this same
"unpublished order" of May 20, 2004, Case No. 01-11894, the Eleventh
Circuit and specifically Judge Ed Carnes and Judge Frank Hull
unambiguously assert:
The September
20, 2001 order did not relate to the issue on appeal, but instead
enjoined Mason from filing any further pleadings in the district
court without permission . Because the order related to collateral
issues, the district court had jurisdiction to issue it.
See page
4.
In stark contract to this bold assertion made by the Eleventh Circuit
on May 20, 2004, they had a different opinion on October 16, 2002
[Direct Appeal, Case No. 01-13664] when they used this same injunction
as part of their opinion to affirm Judge Graham.
Moreover, despite the closure of the case
by the district court, Mason's continual filing of motions with
the court addressing matters previously settled prompted the district
court to prohibit Mason from further filings without explicit
permission and initiate criminal contempt proceedings. Therefore,
the record supports the district court's implicit finding that a
sanction less than dismissal of the action with prejudice would have
had no effect. See Gratton, 178 F.3d at 1374.
This is a clear reference to the filing injunction rendered by
Judge
Graham on September 20, 2001, or three months after the case was
noticed for appeal on June 25, 2001.
Thus it
appears that the Eleventh Circuit can have it both ways. On the
one hand, the Eleventh Circuit can say the filing injunction is a
collateral issue when it suits their purposes and then make it part of
the same appeal and not a collateral issue when it wants to.
Lastly, and even more despicable, the Eleventh Circuit actually struck
Mason's brief for arguing against this order and then turned around and
used it against him. See Undermining
An Appeal. LYING TO
PROTECT JUDGE GRAHAM
Someone at the Eleventh Circuit has been willing to lie to protect
Judge Graham. For example, in their May 20, 2004 order, the
Eleventh Circuit stated:
Moreover,
Mason had an adequate alternative remedy to mandamus relief in that he
could have timely appealed the September 20, 2001 order, but did not do
so.
Seepage 4.
This assertion is clearly false as a petition for mandamus submitted to
the Eleventh Circuit, Respondents Judge Graham and Highlands County on
or about September 29, 2001 [11th Cir. Case No. 01-15754]. The
Eleventh Circuit received the mandamus petition on October
1, 2001 or just eleven days after Judge Graham rendered the filing
injunction on September 20, 2001. It simply ignored the petition
and refused appellate review. See No
Right to Mandamus Review. Moreover even though a direct
appeal, Case No. 01-13664, was pending at the time Judge Graham
rendered this order on September 20, 2001 and the briefs had not been
filed yet, the Eleventh Circuit refused to consolidate the two
cases.
The Eleventh Circuit's March 16, 2005 "unpublished order" [denying
mandamus relief] even contradicted their lie of May 20, 2004 by stating:
"Furthermore,
Mason appealed the dismissal of his case as well as the district
court's injunction order September 20, 2001 , which required
Mason to seek the court's permission to file any motions in his case,
including Rule 60(b) motions."
Additionally, and contrary to their March 16, 2005
"unpublished order "March 16, 2005 "unpublished order" ,the
May 20, 2004 Order also states:
Moreover,
Mason had an adequate alternative remedy to mandamus relief in that he
could have timely appealed the September 20, 2001 order, but did not do
so.
In
that appeal, Mason included arguments relating to the September 20,
2001 order entered after the notice of appeal was filed. This Court
granted, in part, the appellees' motion to strike Mason's brief,
holding that the portions of the brief that related to the September
20, 2001 order were beyond the scope of appeal.
It is quite clear that the Eleventh Circuit has no intention of
allowing Mason to have appellate review of the illegal and void filing injunction. The Eleventh
Circuit is even willing to lie about the matter.
JUDGE
GRAHAM INTENTIONALLY
MISSTATED
MATERIAL FACTS AND LIED IN ORDER TO RENDER THE FILING INJUNCTION Judge Graham lied about the number of
lawsuits that were filed by Mason. SeeLitigation
Summary for more information about lawsuits filed by Mason.
Mason filed only four lawsuits which were consolidate into one case,
99-14027-CV-Graham. For the purpose of
justifying this injunction, Judge Graham counted the following lawsuits
as being "filed": (1)Case No. 00-14202, (2)Case No. 00-14201, (3)Case
No. 00-14116, (4)Case No. 01-14074, (5)01-14078, See "filing injunction" pages
1-2.
Judge Graham stated, “Marcellus M.
Mason ("Mason") has filed eleven (11)cases and/or counterclaims in this
District…” According to Judge Graham's own definition of
“filing”, "A complaint is not
considered filed until the filing fee is
paid." See pg. 2 below.
See (pdf format), (DE
-10) Case No. 00-14201. Seealso(DE
-10) Case No. 00-14202. No filing fee was paid in either of
the above cases [(1)Case No. 00-14202, (2)Case No. 00-14201,
(3)Case
No. 00-14116, (4)Case No. 01-14074, (5)01-14078,] because
Judge Graham arbitrarily denied Mason the benefit of the in
forma pauperis, "IFP", statutes. In fact, Judge Graham has
a long history of
arbitrary denials of IFP status. SeeEleventh
Circuit and Judge
Graham make a mockery of the In Forma Pauperis Statutes.
Using Judge Graham's definition there were only 11 minus 5 or 6
lawsuits “filed.”
Case No. 00-14240 which Judge
Graham also counts, was filed by Highlands County,
not Marcellus Mason. Imagine that!! Now Judge Graham has only 5
lawsuits filed.
Case No. 01-14230
was filed in state court and removed to the S.D. Fla. by Highlands
County after Judge Graham crafted this injunction where they knew the
case would
be assigned to Judge Graham. SeeNotice
of Removal. Judge now has only four lawsuits that Mason filed, not
the 11 Judge Graham
concocted.
JUDGE GRAHAM HIMSELF ADMITS THAT A "FILING
INJUNCTION" WAS INAPPROPRIATE
Highlands County filed a lawsuit against Marcellus Mason, Case
No. 00-14240-CV-GRAHAM. Highlands County specifically
asked for the type
injunction that Judge Graham concocted on September 20.2001.
However, on
February 13, 2001 and January 16, 2001, Judge Graham and his Magistrate
stated:
“While there are other pending cases
between these parties, there is
nothing near the extent of the litigation which this Court and the
Eleventh Circuit Court of Appeals usually look to for justifying
injunctive relief.” See Case No. 00-14240 (DE
27, pg. 3) , (DE
33). In the
period between February 13, 2001 and September 20, 2001, Mason did not
file
any lawsuit in the S.D. FL.
