Sunday, October 19, 2008

Contempt Abuse Is Misconduct Under State Law But Is Not Judicial Misconduct Under the Federal Statutes

Federal Judicial Misconduct

U.S. District Judge Donald L. Graham is a rogue judge by any reasonable and objective standard.

Complaints of Judicial Misconduct against federal judges are currently governed by 28 U.S.C. §§ 351-364, formerly 28 U.S.C. § 372. Complaints under this act are supposed to be confidential. Judges like U.S. Circuit Chief Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeals have used 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." See http://academic.csuohio.edu/polen/LC9_Help/2/25negative.htm. Judge Edmondson does not define misconduct as he simply disagrees with every act that alleges misconduct in a complaint is not judicial misconduct. It is difficult, if not impossible to find an affirmative definition of what judicial misconduct is under the federal statutes. Consequently, a negative definition is used to define judicial misconduct out of existence. As a result of the way Judge Edmondson and his minions interpret the Judicial Misconduct and Disability Act and coupled with confidentiality and secrecy, it is virtually impossible to find information with respect to what constitutes judicial misconduct under the federal statutes. As a consequence of this lack of information, this post uses documented cases of judicial misconduct under state law on the premise that, at the very least, federal judges are held or should be held to the same standard as state court judges. What a radical concept! U.S. District Judge Donald L. Graham, given his entire record, would be removed from office under any state statute.


State Court Judges Disciplined For Contempt Abuse Under Judicial Misconduct Statutes


Richard S. Lawrence, a Judge of the Family Court, Nassau County, New York received an official admonition from the New York Commission on Judicial Conduct for contempt abuse. See URL: http://www.scjc.state.ny.us/Determinations/L/lawrence.htm. In this matter, the court concluded that Judge Lawrence's "failure to adhere to mandated contempt procedures -- which he clearly knew about but disregarded -- constitutes misconduct warranting public discipline". Judge Lawrence was found guilty of the following:
  • Failure to comply with well-established procedural safeguards for summary contempt.
  • Hastily incarcerating and detaining a litigant without procedural justification.
  • Improperly and repeatedly raising the sentence of litigant and his attorney. The Commission concluded: "Under these circumstances the escalation of the sentence -- from five days to ten days to twelve days -- was a gross abuse of discretion and a substantial overreaction to their efforts to protest his ruling."

In Disciplinary Counsel v. Karto, 94 Ohio St.3d 109;2002 Ohio 61; 760 N.E.2d 412; 2002 Ohio LEXIS 23,* (2002), Judge Steven Ray Karto, among other things, was disciplined for bringing a contempt action without formal proceedings and for threatening an individual with contempt. Judge Karto was suspended from the practice of law for six months and suspended without pay from his position as judge. As documented below, Judge Donald L. Graham was guilty of far more egregious conduct but suffered nothing.


U.S. Circuit Judge J.L. Edmondson Says Contempt Abuse Is Not Judicial Misconduct


U.S. Circuit Judge, J.L. Edmondson, Chief Judge, Eleventh Circuit, U.S. Court does not consider abuse of the federal contempt power to be judicial misconduct. See Complaint and Order, Case No. 02-0059; Combined Complaint And Order, Case No. 05-0011; Combined Complaint And Order, Case No. 05-0013.

U.S. Dist Judge Donald L. Graham has exhibited a total and utter disregard for the rule of law with respect to the federal contempt laws and procedures. It is difficult to argue that Judge Graham’s behavior has not been contemptuous and disdainful to the rule of law. Judge Graham’s defiance of well established law has inflicted the following damage on Mason:

  • Judge Graham has terrorized both Mason his children who had to live with Judge Graham’s reckless and lawless behavior.
  • 5 years supervised release probation
  • A special condition that precluded Mason’s use of the Internet. This is a really pernicious punishment as Mason made his living as a MCSE, Micrsoft Certified System Engineer, CNE, Certified Novell Engineer working on computer networking and internetworking systems.
  • $200,000 in legal fees when Judge Graham had ceded jurisdiction of the case.
  • Use of U.S. Marshal and Power of U.S Attorney to Stop Criticism of Judge Graham, See mcneilmason.wordpress.com, post “Power of US Government Used To Suppress Criticism of U.S. Dist. Judge Graham“.

In order to inflict this damage, Judge Graham intentionally disregarded prevailing legal standards and fundamental notions of due process which included, but is not limited to the following patently unlawful behavior:

  • Judge Graham denied Mason due process by disregarding the requirements of Federal Rule of Criminal Procedure 42(b) by failing to state “the essential facts constituting the criminal contempt charged” and describing them as such. The supposed show cause order rendered by Judge Graham describes “contemptuous acts” that are completely different from the information filed by the Government. The bench trial proceeded based upon the information and not the “essential facts” or “”contemptuous acts” listed in the show cause order. See “Judge Graham Violated Mason’s Due Process Rights by Disregarding the Criminal Contempt Procedure“.
  • Judge Graham used a clearly void sua sponte issued pre-filing that was rendered on September 20, 2001 [Docket Entry No. 878 or (D.E. 878)] to form the basis of a criminal contempt complaint and conviction. The information alleges a violation of this sua sponte issued pre-filing injunction. This sua sponte issued pre-filing injunction has multiple due process flaws and jurisdictional defects. This sua sponte issued pre-filing injunction lacks the requisite factual finding. This sua sponte issued pre-filing injunction misstates material facts. Judge Graham is willingly flaunting the law. See “Judge Graham Is Willfully Flaunting The Law“.
  • The Eleventh Circuit, U.S. Court of appeal assisted Judge Graham in denying Mason’s civil rights by repeatedly refusing to review this sua sponte issued pre-filing injunction for validity. See “The Co-Conspirators and Appellate Review“. This sua sponte issued pre-filing has never been reviewed for validity.
  • Judge Graham was motivated in part by his desire to intimidate and retaliate against Mason for filing 28 U.S.C. § 372(c) against him. See “Circumstantial Evidence and Judge Graham’s Motive “.
  • Judge Graham used the criminal contempt procedure to attempt to force Mason to drop a lawsuit against him. See “Contempt Abuse And Coercion To Drop Lawsuit Against Judge Graham “.
  • Judge Federico A. Moreno, a colleague of Judge’ Graham refuses to endorse Judge Graham’s abusive conduct with respect to the contempt procedure and conviction. Judge Moreno makes only the mitigating argument that Judge Graham did not act in bad faith. See “Chief Judge Federico A. Moreno Declines to Endorse Judge

Support for these allegations are fully set forth at “http://mmason.freeshell.org/blog/should_us_dist_judge_graham_be_criminally_indicted.htm” and “http://donaldlgraham.blogspot.com/2008/09/is-us-dist-judge-donald-l-graham.html“. These sites ask the question: “Is U.S. Dist. Judge Donald L. Graham a Criminal?” Additionally, even more outrageous conduct is set forth at: Egregious Documented Acts of Judicial Misconduct by Judge Donald L. Graham



Chief Judge Federico A. Moreno Declines to
Endorse Judge Graham


Chief Judge Federico A. Moreno, United States District Court, Southern District of Florida, was sent a letter on March 25, 2008 and told of the behavior described above and declined to endorse Judge Graham's behavior or deny any of the allegations listed above. In a letter dated April 4, 2008, Judge Moreno wrote:

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


Pattern And Practice


This post is part of an overall pattern and practice of using extreme measures and lawlessness to conceal the misconduct of Judge Graham. See Documented Allegations of Misconduct. The Administrative Office of the United States Courts, Judicial Conference, Committee on Judicial Conduct and Disability has stated:
[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.
See http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf.

The Eleventh Circuit's Chief Judge, J.L. Edmondson, has fought tooth and nail to keep from addressing a documented pattern and practice of disregarding well established law by Judge Graham. See mmason.freeshell.org/372c or mmason.freeshell.org/edmondson/edmondson. Judge Graham's misconduct and Judge's Edmondson's defense of Judge Graham's misconduct are fully documented in the following judicial misconduct complaints:
No. 01-0054; No. 01-0054-Judicial Council; No. 01-0068; No. 01-68-Judicial Council; INTERVENING MANDAMUS; No. 02-0006; No. 02-0006 -Judicial Council; No. 02-0029; No. 02-0034; No. 02-0052; No. 02-0059; COMPLAINTS FILED IN 2005; No. 05-0008; No. 05-0011; No. 05-0012; No. 05-0013; No. 05-0020; No. 05-0021.

The following complaints of judicial misconduct are currently pending against Judge Graham:

Posted by Marcellus Mason at 4:37 PM 0 comments
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Thursday, September 11, 2008

Is U.S. Dist. Judge Donald L. Graham a Criminal?

An Extract from, "U.S. Dist. Judge Donald L. Graham Uses Office To Commit Criminal Acts To Save His Career".

Purpose of This Post


The purpose of this post is to make the case that the United States Department of Justice, "USDOJ", should indict U.S. Dist. Judge Donald L. Graham on criminal charges and allow a jury to decide the dispositive fact issue of "intent". This post will document multiple instances where Judge Graham has demonstrated a complete and utter disregard for the rule of law. At the very least, the Dept. Of Justice should bring an indictment to set the boundary for where a "judicial act" ends and criminal conduct begins. At the bottom, Judge Graham's behavior is "only" arguably criminal which is enough to create a fact situation for a jury to decide. Under the facts described in this post, it is difficult to see how anybody not wearing a robe would not have been indicted and tried. While not the primary purpose of this post, the behavior of the individual judges of the Eleventh Circuit, U.S. Court of appeal is implicated as well. The Eleventh Circuit, with full knowledge of almost every allegation leveled herein, has taken extreme measures to avoid disciplining Judge Graham thereby enabling him by emblazoning an "S" on Judge Graham's chest. It appears that the Eleventh Circuit is composed of mere syncopants for Judge Graham. If Judge Graham is guilty of criminal conduct, then certain members of the Eleventh Circuit are co-conspirators. If Judge Graham and other federal judges were held to same ethical and moral standards as U.S. Army Officers, and there is no reason why they shouldn't be, then Judge Graham and other culpable judges would be court-martialed and others would be forced to resign their seat on the bench or "command".

This post will make the case that Judge Graham and others have violated 18 U.S.C. § 241 and 18 U.S.C. § 242 by willfully and deliberately violating Marcellus Mason's civil rights. These statutes are not so infrequently invoked by the DOJ to prosecute police officers who improperly and criminally violate civil rights. The case will be made by documenting the following:
  • Listing the standards for prosecutions based upon 18 U.S.C. § 241 and 18 U.S.C. § 242 .
  • Listing clearly unlawful acts committed by Judge Graham.
  • Prove intent of "bad faith" by offer of an affidavit under the penalty of perjury and an offer to take a polygraph test, with a challenge to Judge Graham and his supporters to do the same.
  • Prove intent of "bad faith" by circumstantial evidence.
  • Prove intent of "bad faith" by deductive reasoning. Judge Graham has intentionally misstated material facts in order to get the result he desired. This post will prove that Judge Graham had no reason to believe that his lawless behavior was taken for any known lawful reason, leaving only unlawful motives as the real possibilities for his lawless behavior.

Lastly, an ancillary or incidental purpose of this post to demonstrate how Judge Graham and his supporters like Chief Judge Larry Edmondson, Eleventh Circuit, U.S. Court of Appeals, and others cynically mock the American Bar Association, "ABA", and its' koolaid of "judicial independence".

Organization Of This Post


This was a rather large and somewhat time consuming post; consequently it has been shortened and the full text is available at: http://mmason.freeshell.org/blog/should_us_dist_judge_graham_be_criminally_indicted.htm. As this post accuses a Federal Judge, Donald L. Graham, of possible of criminal behavior it must have substantial factual and legal support. This post is divided into legal authority and factual support. This entire post can be read in less than five minutes by simply referring back to this section and following the support for each argument listed below. This post argues that Judge Graham should be criminally indicted because his behavior crossed the line between a "judicial act" and "criminal conduct". This post alleges criminal violations of civil rights and concealing U.S. Government documents. Firstly, under the guise of a "judicial act", Judge Graham committed a "criminal act by violating the civil rights of Marcellus Mason by manufacturing a criminal contempt complaint and conviction out of whole cloth. This allegation is supported by the following facts:
Secondly, Judge Graham gave himself permission to conceal and withhold from public scrutiny and the Clerk of Court documents belonging to the United States Government. Judge Graham acted in contravention of 18 U.S.C. § 2071.  See "Judge Graham Concealed United States Court Documents".


For the full incredible Story, See "U.S. Dist. Judge Donald L. Graham Uses Office To Commit Criminal Acts To Save His Career".

Posted by Marcellus Mason at 10:11 AM 0 comments

Tuesday, August 19, 2008

Eleventh Circuit Case No. 01-13664: The Appeal From Hell

Purpose of This Post


The purpose of this post is to set forth documentation to prove that the Eleventh Circuit, U.S. Court of Appeals, will take extreme measures to keep from holding U.S. Dist. Judge Donald L. Graham accountable for his abusive behavior and lawless decisions. This post examines two opinions of the Eleventh Circuit, an unpublished opinion and a published opinion, that were rendered within two days of each other. The published opinion declared "prior restraints" to be in violation of the first amendment. The unpublished opinion, which also involved prior restraints, declines to discuss the validity of the prior restraints. The unpublished opinion avoids appellate review of orders or injunctions that were rendered by Judge Grahams' Magistrate, Frank Lynch, Jr. Additionally, the unpublished opinion declines to discuss other important issues such as whether Judge Graham should have disqualified or not. Simply put, the unpublished Opinion was deployed to attain the desired result. In summary, the "rule of law" was a casualty in the unpublished opinion. Lastly, this post documents other cases where the Eleventh Circuit used unpublished opinions to make lawless decisions that are completely at odds with published opinions involving the same material facts.


Thesis


Unpublished dispositions mark out a zone where no law prevails, but only the predilections and preferences of the judges. Stated alternatively, unpublished opinions very often have nothing to do with the law or the facts. In fact, material facts are often omitted and "new facts" maybe conjured up. If a US Circuit Court Appeals Judge desires a certain outcome, he or she can whip out an unpublished opinion and get the desired outcome. No less a "disgruntled litigant", then former U.S. Circuit Judge Richard Arnold, now deceased, suggested such a thing could happen:


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 judge share 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. In fact, Judge Arnold felt uneasy about his own participation in unpublished opinions. Judge Arnold surely cannot be resting comfortably. In Anastasoff. v. United States, 223 F.3d 898 (8th Cir. 2000), Judge Arnold and his panel declared unpublished opinions to be unconstitutional. This opinion was subsequently vacated on other grounds, 235 F.3d 1054 (8th Cir. 2000) by an en banc court.

The Published Opinion


On October 18, 2002, the Eleventh Circuit decided Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002), a published opinion. On this date, the Eleventh Circuit was adamantly opposed to "prior restraints" and held:

The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend. I.
Weaver at ¶21.

"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, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). "The term prior restraint is used `to describe 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, 2771, 125 L.Ed.2d 441 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03 (1984)). "Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints." Id.
Weaver at ¶32.

In Weaver, the Eleventh Circuit held that a "cease and desist order" which prohibited false statements by a judicial candidate to be an unconstitutional prior restraint.

The Unpublished Opinion

Two days prior to deciding Weaver, October 16, 2002, the court decided another case involving a prior restraint, Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, No. 01-13664, (11th Cir. 2002). In Mason v. Highlands County, Judge Graham's Magistrate, Frank Lynch, Jr. issued the following injunctions:

“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 are clearly prior restraints according to the Eleventh Circuit's and the Supreme Court's definition as a mere Magistrate prohibited direct communication with the government defendants in this matter. In their unpublished opinion, the Eleventh Circuit, U.S. Circuit Judge Stanley F. Birch, Jr., Judge Stanley Marcus, and Judge Susan Black, while refusing to cite legal authority, apparently considered the following communications with the government to be unprotected speech.

  • "They claimed that, during the week of 5 February 2001 , Mason had demanded to yiew his personnel file from Highlands County's Human Resource Director Fred Carino, a named defendant in the case." 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. Opinion, pgs. 4,5.

  • They asserted that Mason made these requests of Carino without first requesting the documents from their counsel in compliance with the magistrate judge's order and became aggressive, disruptive, and threatening with Carino. Opinion, pgs. 5.

  • They indicated that they had produced the documents for Mason, and attached a copy of a letter from Carino to Mason reminding Mason that he was to correspond only with their counsel. Opinion, pgs. 5.

Case No. 01-13664 is a virtual cesspool of dishonesty and trickery. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell. It is impossible to exaggerate the odor that surrounds this opinion.

Eleventh Circuit Case No. 01-13664: The Unpublished Appeal From Hell

Eleventh Circuit Case No. 01-13664, an unpublished opinion, represents Circuit Judge Richard Arnold's worst fears. See "Eleventh Circuit Case No. 01-13664: The Appeal From Hell". This opinion is incredulous in the level of dishonesty involved. It is hard to imagine a more dishonest opinion. The tactics used by the Eleventh Circuit to reach the desired outcome, a vindication of Judge Graham personally, included, but is not limited to the following:

  • The Eleventh Circuit chose an unpublished opinion.
  • The opinion was never released the Internet.
  • The Eleventh Circuit denied a motion to proceed on appeal in forma pauperis.
  • The Eleventh Circuit attacked the Appellants briefs for superficial reasons such as not having "indexing tabs".
  • The Eleventh Circuit denied multiple requests to review its jurisdiction.
  • The Eleventh Circuit struck the Appellant's Brief for arguing against a sua sponte issued pre-filing injunction because they said it was "beyond the scope of appeal". The Eleventh Circuit made the Appellant go through the expense of filing all new briefs less any mention of the sua sponte issued pre-filing injunction. See Putrid Dishonesty:Beyond the Scope of Appeal”.
  • The Appellees filed their brief and argued in support of the sua sponte issued pre-filing injunction. The Eleventh Circuit granted the Appellant's motion to strike the Appellees Briefs, but declined to make the heavily insured Appellees all new briefs as they had done to the mere pro se Appellant. The Eleventh Circuit stated that it would not consider the sua sponte issued pre-filing injunction in its decision.
  • The Eleventh Circuit declined to review and omitted pertinent issues on appeal from discussion.
    1. The Eleventh Circuit declined to review the validity of the very orders that it claimed the Appellant [Mason] violated, the orders of June 19, 2000, (DE #246), and July 25, 2000, (DE #246), that caused the case to be dismissed. See Background.
    2. Judge Graham is accused of misconduct, abuse, and mismanagement and that Judge Graham should have recused or disqualified because of this behavior. There is no discussion of this issue in the appeal, much less a remedy. This issue and the allegations supporting it are simply ignored.
    3. The Appellant challenged the authenticity and relevancy of emails that were used as evidence of violations of out of court communications in violations the orders of June 19, 2000, (DE #246), and July 25, 2000, (DE #246).
    4. On October 16, 2002, when the Eleventh Circuit rendered its opinion, it then used the same sua sponte issued pre-filing injunction that it had previously said it was "beyond the scope of appeal" and struck the Appellant's brief to affirm Judge Graham.

See "Eleventh Circuit Case No. 01-13664: The Appeal From Hell". Similarly, along this same time interval, a petition for mandamus was filed which, among other things, accused Judge Graham of misconduct, abuse, and mismanagement. The petition met a similar and even worse fate. See Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham.



I Got Your Lawless Unpublished Depositions


In testimony before the House Judiciary Committee on "Unpublished Judicial Opinions", Judge Alex Kosinski stated:

Lawyers sometimes darkly suggest that unpublished dispositions make up a secret body of law wholly at odds with our published decisions—that unpublished dispositions mark out a zone where no law prevails, but only the predilections and preferences of the judges. We have discussed this among the judges of my court and are, frankly, baffled by the claim because none of us perceives that this is what we are doing. These claims are always made with reference to some unnamed earlier case; lawyers seldom, if ever, present concrete evidence of lawlessness in unpublished dispositions to back up their claims. This is surprising because if the practice were happening with any frequency, the losing lawyers would have every incentive to make a fuss about it.
Nevertheless, we have worried about claims like these, and so in recent years we have taken two initiatives to help discover whether unpublished dispositions are, in fact, in wholesale, lawless conflict with published precedents. First, in February and March 2000 we distributed a memorandum to all district judges, bankruptcy judges, magistrate judges, lawyer representatives, senior advisory board members, and law school deans within the Ninth Circuit, as well as other members of the academic community, seeking information on unpublished dispositions that conflicted with other published or unpublished decisions. The memorandum was also posted on the court's website. Responses were collected by e-mail, fax, and a response form at the website. Only six responses were received. Of these, we found two to be meritorious and, despite our instructions, both responses identified conflicts between two published Ninth Circuit decisions—conflicts of which we were already aware. No one identified an unpublished disposition that conflicted with a published opinion or with another unpublished disposition.
See URL: http://commdocs.house.gov/committees/judiciary/hju80454.000/hju80454_0f.htm. The Eleventh Circuit has a series of unpublished opinions that are directly at odds with published opinions

A Tale of Two Appeals, Same Facts, Same Law, Different Results.

Judge Graham has been affirmed on appeal while some of his colleagues at the S.D. Florida and other federal judges were reversed on the same set of facts. The Eleventh Circuit used unpublished opinions to affirm Judge Graham while his colleagues were reversed using published opinions. Essentially the Eleventh Circuit has created a secret underground body of law. See Tale of Two Appeals Home Page.

Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge U.S. District Judge Donald L. Graham was affirmed or upheld on appeal for the exact same set of facts that his colleague, Judge Daniel T. K. Hurley, at S.D. Fla. was reversed on appeal. In Martinez, v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir. 2004), the Eleventh Circuit vacated and remanded Judge Daniel T. K. Hurley's denial of an IFP application for failing to a reason for the denial. However, Judge Donald L. Graham in the same Court, Southern District of Florida, did the exact thing as Judge Hurley, but Judge Graham was affirmed. This fact can be verified in five minutes by reading mmason.freeshell.org/martinez.htm . Incidentally, Judge Graham has a documented history of denying in forma pauperis petitions without providing any explanation. See Judge Graham's History of Arbitrary IFP denials.


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

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. Similarly in World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995), U.S. District Judge Ursula Ungaro-Benages, United States District Court for the Southern District of Florida, was reversed on appeal for failing to make an explicit finding under Fed.R.Civ.P. 41(b), while U.S. District Judge Donald L. Graham, S.D. Fla., failed to make the same explicit finding, but was affirmed on appeal. See mmason.freeshell.org/WorldThrust.htm. As if this was bad enough, the Eleventh Circuit used an invalid sua sponte issued pre-filing injunction that issued on September 20, 2001 to make an implicit finding under Fed.R.Civ.P. 41(b) to justify a dismissal of a case that was closed three months earlier on June 20, 2001. The Eleventh Circuit used the very same invalid sua sponte issued pre-filing injunction that it struck Mason's brief for arguing because the Eleventh Circuit claimed that this sua sponte issued pre-filing injunction was "beyond the scope of appeal." For more see, mmason.freeshell.org/methods.htm

Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata

In Pleming v. Universal-Rundle Corp., 142 F.3d 1354 (11th Cir. 1999), U.S. Dist. Judge Marvin H. Shoob, Northern District of Georgia, a part of the Eleventh Circuit, was reversed on appeal for the same set of facts that Judge Graham was affirmed. Judge Shoob was victimized by a published decision while Judge Graham’s actions were saluted with an unpublished opinion. Other Judges in the Eleventh Circuit and particular judges at the Southern District of Florida have suffered reversals in published opinions for the same set of facts that Judge Graham has been affirmed for.

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

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:

Another One Bites the Dust: Same Set of Facts, Judge Graham Affirmed While Colleague Judge Forrester Reversed

U.S. Dist. J. Owen Forrester was reversed on appeal in a published opinion while U.S. Judge Graham was affirmed. Judge Forrester. In Arsenio Leal v. Georgia Department Of Corrections, 254 F.3d 1276 (11th Cir. 2001), the Eleventh Circuit held that a notice of appeal filed before the final judgment was issued met the legal requirements. In so doing, the Eleventh Circuit proceeded to the merits of the appeal and reversed. In stark contrast, Mason filed a notice of appeal prior to final judgment and the Eleventh Circuit, using an unpublished opinion, dismissed the appeal to avoid reaching the merits of the appeal. The order being appealed was a clearly void sua sponte issued pre-filing injunction.

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

Judge Vanessa D Gilmore in Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559 (5th Cir. 2005) who was reversed for issuing an unconstitutional prior restraint, 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".

Posted by Marcellus Mason at 11:46 PM 3 comments
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Wednesday, July 16, 2008

U.S. Dist. Judge Donald L. Graham Construes Recusal Statute To His Liking and Sets About Wreaking Havoc


Wednesday, July 16, 2008

J.L. Edmondson

c/o Thomas K. Kahn, Clerk
U.S. Court of Appeals for the 11th Circuit
56 Forsyth St. N.W.
Atlanta, Georgia 30303

RE: Complaint of Misconduct Against U.S. Dist. Judge Donald L. Graham[1]

Dear Judge Edmondson:

Please consider this complaint along with my prior complaints to further buttress my argument that Judge Graham has engaged in a pattern and practice of disregarding prevailing legal standards. On January 8, 2008, the Committee On Judicial Conduct And Disability, with whom you apparently disagree, proclaimed:

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

See Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement. I refer you specifically to the following complaints: No. 01-0054;No. 01-0054-Judicial Council;No. 01-0068;No. 01-68-Judicial; Council;No. 02-0052;No. 02-0059;No. 05-0008;No. 05-0011;No. 05-0012;No. 05-0013;No. 05-0020;No. 05-0021 and the Complaints dated June 25, 2008 and July 9, 2008 and the Motion for Reconsideration.

It is somewhat ironic that Judge Graham doesn’t respect your authority either even though you have been Judge Graham’s chief protagonist and apologist. Judge Graham has totally disrespected you and the opinion you authored in Bradley Murray v. Ray W. Scott, Jr., B.A.S.S., Inc., 253 F.3d 1308 (11th Cir. 2001).

Background Facts

I filed an employment discrimination lawsuit against the Highlands County Board of County Commissioners and Heartland Library Cooperative and other governmental entities and individual government employees in February 1999. The case was originally assigned to then Chief Judge Edward Davis who retired. On February 20, 1999, Judge Davis allowed me 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, http://mmason.freeshell.org/OverRuleFirstAmendment.htm.

In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue asked the Magistrate to grant them preliminary injunctions that required me to contact them before I could talk to the government defendants. These orders required me, 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). I appealed this matter, but the Eleventh Circuit just issued an unpublished opinion and ignored the above orders and Judge Graham’s failure to disqualify. This appeal, Case No. 01-13664-A , has been referred to as the “appeal from hell”. See mcneilmason.wordpress.com, post entitled “Eleventh Circuit Case No. 01-13664: The Appeal From Hell”.

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. This sua sponte issued pre-filing injunction, though clearly void, formed the basis of a criminal contempt complaint and conviction. See mcneilmason.wordpress.com, post entitled “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life”.

ALLEGATIONS OF MISCONDUCT SUPPORTED BY THE RECORD

Judge Graham has usurped authority by making decisions in a case, 99-14027-CIV, where he was legally disqualified. On May 7, 2002, Judge Graham issued an order recusing himself from Case No. 99-14027-CIV-Graham for “contempt proceedings only” by stating that:

[T]he undersigned district judge, to whom the above styled case has been assigned, hereby recuses himself for contempt proceedings only and refers the case the Clerk of Court for reassignment for contempt proceedings only pursuant to 28 U.S.C. § 455 and Local Rule 3.6..

See (D.E. #908). If your published opinions and that of the Eleventh Circuit mean anything, then Judge Graham was acting without legal authority for all actions taken in Case No. 99-14027-CV-Graham after May 7, 2002.

But when a district judge considers recusal, he must consider his potential conflict with regard to the overall case, not just his potential conflict for each separate issue or each stage of the litigation. See United States v. Feldman, 983 F.2d 144, 145 (9th Cir. 1992) ("[W]hen a judge determines that recusal is appropriate it is not within his discretion to recuse by subject matter or only as to certain issues and not others.").

See Bradley Murray v. Ray W. Scott, Jr., B.A.S.S., Inc., 253 F.3d 1308 (11th Cir. 2001). "Once a judge has disqualified himself, he or she may enter no further orders in the case.... His power is limited to performing ministerial duties necessary to transfer the case to another judge (including the entering of `housekeeping' orders." See In re: Bellsouth Corporation, In re: Terry Price and Lehr, Middlebrooks, 334 F.3d 941 (11th Cir. 2003)(quoting Moody v. Simmons, 858 F.2d 137, 143 (3rd Cir.1988)).

Judge Graham has used his usurped authority by taking the following adverse and abusive actions against me when he had no legal authority to act in Case No. 99-14027.

  1. On 09/13/2002, Judge Graham entered a final judgment against me which awarded $200,000 in legal fees against me. (D.E. #911).
  2. On 12/20/2002, Judge Graham has arrogated his own authority by arbitrarily denying the right to appeal in forma pauperis when he had no authority to act. (D.E. #927).
  3. 01/04/2005, Judge Graham refused to disqualify himself again. (D.E. #931).
  4. I submitted several requests to file motions for relief under Rule 60(b)(4) that Judge Graham failed to act on or to properly file with the Clerk of Court. These requests were dated: (1) December 11, 2004; (2) Friday, December 24, 2004; (3) December 28, 2004; (4) January 03, 2005. However, Judge Graham hand selected a request to file a motion and did actually file that request. See Letter dated 12/16/04, (D.E. #932). Judge Graham is cherry picking requests to file motions that he does not have the legal authority to decide.
  5. 01/9/2005, Judge Graham ordered me to come from my home in Sebring, FL to Fort Pierce, FL, some 80 miles for a “status conference” in Case No. 99-14027-CV. (D.E. #933).
  6. On 1/14/05, Judge used this “status conference” not to decide any motion, but to “advise” me “not to file any future pleadings” in a case that he had disqualified from. See (D.E. #934). Judge Graham used the so-called “status conference” for intimidation. In this unsigned document, (D.E. #934), Judge Graham ordered someone to file a document stating: “Mr. Mason cautioned that his actions may have adverse affect on his criminal case.” There was absolutely no discussion of the merits of the one page requests to file motions that I had submitted. Judge Graham knew that I was on probation at the time. Judge Graham ordered, Frank Smith, U.S. Probation, Robert Waters, Assistant U.S. Attorney, and Lynn Waxman, an appellate attorney, to be present at this “status conference”. Judge Graham refused to memorialize his usurped “authority and “commands” to writing. Judge Graham attempted to sua sponte modify the sua sponte issued pre-filing injunction of September 20, 2001, (D.E. #878). Rather than write an order himself, Judge Graham had a clerk to file an unsigned piece of paper.
  7. On 02/14/2005, Judge Graham has arrogated his own authority by arbitrarily denying the right to appeal in forma pauperis when he had no authority to act. See Order dated 02/14/2005 (D.E. #939). As a result of this adverse action, I lost my right to appeal his abusive behavior.

Judge Edmondson could you please help stop this man from terrorizing me and my family? It appears Judge Graham is above the law and will not be disciplined under any set of circumstances. Judge Edmondson, please keep in mind that other Judges and the legal community is watching how you handle this matter.

Sincerely,

Marcellus M. Mason

214 Atterberry Drive

Sebring, FL 33870

[1] An online version of this complaint is available at: http://mmason.freeshell.org/372c/Complaint_07152008.doc ; This document has embedded clickable links for ease of investigation by the Judicial Council and other interested parties. This complaint will also be featured in a post at http://donaldlgraham.blogspot.com .

Posted by Marcellus Mason at 1:11 PM 0 comments
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Saturday, June 21, 2008

U.S. Dist. Judge Donald L. Graham Disagrees With The United States Supreme Court Yet Again!


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 to 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 as the Eleventh Circuit, U.S Court of Appeal has refused to review this pre-filing injunction for validity. See Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review Sua Sponte Issued Pre-Filing Injunction. 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?

POINT OF THIS POST


This page will prove beyond a reasonable doubt that U.S. District Judge Donald L. Graham, "Teflon Don", has displayed a willful contempt or otherwise thumbing his nose at decisions of the United States Supreme Court, "SCOTUS". Judge Graham has freely admitted that he is legally bound to follow the decisions of both the Supreme Court and the Eleventh Circuit, U.S . Court of Appeal. See Skylark v. Honeywell Int'l, Inc., 2002 U.S. Dist. LEXIS 10554 (S.D. FLA 2002) ("In the case of the Southern District of Florida, the only courts it must be obedient to are [the Eleventh Circuit] and the Supreme Court of the United States."). Specifically, this post will address the single issue that Judge Graham eschewed well established law and the Supreme Court's edict that a well grounded lawsuit may not be enjoined even if it could be proven that a Plaintiff had a retaliatory motive in bringing the lawsuit. Other jurisdictions have similarly found that it is no defense to a valid cause of action that the motive or ulterior purpose of the plaintiff in bringing the suit is based on animosity or malice. Additionally, this post will demonstrate that Judge Graham has ignored binding precedent with impunity. In fact, what you will find is that the Eleventh Circuit has used unpublished opinions to contort the law and the facts to keep from rebuking Teflon Don. A perfect example of this tactic is set forth in a blog post entitled "Eleventh Circuit Case No. 01-13664: The Appeal From Hell". This appeal from hell is not consistent with the American Bar Association Statement that:
There are checks on the judiciary and channels to correct improper decisions. The appeal process affords litigants the opportunity to challenge a judicial ruling.

See About Us - ABA Standing Committee on Judicial Independence.

While not the subject of this post, this sua sponte issued pre-filing injunction is plagued with legal problems, including the following:


Motive

It is well-settled law that if a litigant has a valid claim, then the litigant can not as a matter law be guilty of bringing his action(s) in bad faith. Contrary to Judge Graham's personal opinion, the United States Supreme Court has expressly stated that a well founded lawsuit may not be enjoined even if the Plaintiff has a bad motive or a retaliatory motive in bringing the suit. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983)("The filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff's desire to retaliate against the defendant for exercising rights protected by the Act."). See also CHI. R.I. & PAC. RY. v. Dowell, 229 U.S. 102, 114 (1913) (“If the plaintiff had a cause of action which was joint and had elected to sue both tort-feasors in one action, his motive in doing so is of no importance.”); Chi., Rock Island RY. v. Whiteaker, 239 U.S. 421, 424-5 (1915) (“ the motive of plaintiff, taken by itself, does not affect the right to remove" and that "if there is a joint liability he has an absolute right to enforce it, whatever the reason that makes him wish to assert the right.“); Chicago, Rock Island & Pacific Railway Company v. Schwyhart("Again, the motive of the plaintiff, taken by itself, does not affect the right to remove. If there is a joint liability, he has an absolute right to enforce it, whatever the reason that makes him wish to assert the right."); Glorsky v. Wexler, 142 N.J. Eq. 55, 57 (1948) (“[a]n improper motive cannot defeat the enforcement of a lawful right “); Nika v. Danz, 199 Ill.App.3d 296(1990) (“Plaintiff is correct that a party's bad motives in commencing an action are not a valid defense to the action and are immaterial “); Williamson v. Osenton, 232 U.S. 619, 622-3(1914) (“[U]sually the court will not inquire into the motives of a party in doing an act such as making an assignment or changing his domicil, the court will not hold that one is not a citizen of a State when, in fact, he is a citizen, solely because his purpose in becoming such a citizen was to enable him to bring a suit.”). Hostility between parties or their counsel ought not to invalidate a lawsuit brought to obtain proper legal relief for potentially meritorious claims.” Colombritov. Kelly, 764 F.2d 122 (2nd Cir. 1985). " Courts will generally not inquire into the motives which actuate the plaintiff in bringing his action, if he has a legal right which he seeks to protect. It is no defense to a valid cause of action that the motive or ulterior purpose of the plaintiff in bringing the suit is based on animosity or malice. Where the plaintiff shows aright to the relief sought, it is immaterial that he is seeking it for purposes other than the ascertainment and enforcement of the rights which here lies." 1 Fla.Jur. 2d, Actions, Section 29, Page 289.

The Act that Defies The United States 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. EVEN MORE INCREDIBLE IS THE FACT THAT THE ELEVENTH CIRCUIT REFUSES TO REVIEW THIS SUA SPONTE ISSUED PRE-FILING INJUNCTION FOR VALIDITY. See "Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review Sua Sponte Issued Pre-Filing Injunction". This type of injunction is commonly referred to under several different names: "leave to file injunction", "vexatious litigant injunction", "pre-filing injunction", "filing injunction", "1651 injunction". This sua sponte issued pre-filing uses the following unauthenticated email to speculate about Mason's motive:

Bad Faith
It has become clear to the Court that Mason is proceeding in bad faith. Indeed, he has admitted as much in his own pleadings and correspondence. Mason has written:
I treated your lawsuit with the contempt and disrespect it deserved . . now you are about to be punished for filing this frivolous action. . . Later, chumps.
(Case No. 01-14240 Defendants' Response to Mason's Motion to Amend, Exhibit 1.)
[Deposition of a witness will be] a fishing expedition [where Mason will seek information] relevant or not"
"[A]re you people learning something from the multiplicity of pleadings you are receiving from me."
(Case No. 00-14240 Complaint, Exhibit 1, Compilation of e-mail transmissions).
These statements are just examples of the numerous comments made by Mason, both to Defendants and to the Court of his intent to needlessly protract litigation and harass the Defendants. Such activity is in bad faith and will not be permitted by the Court.

See Sua Sponte Issued Pre-filing Injunction, (D.E. #878, pgs. 5,6).

Provisions of this sua sponte issued include, but are not limited to, the following:

Plaintiff Marcellus M. Mason is Permanently enjoined from filing any additional pleadings in case numbers 99-14027- CIV-GRAHAM, 00-14116-CIV-GRAHAM, 00-14201-CIV-GRAHAM, 00-I4202- CIV-GRAHAM, 00-14240-CIV-GRAHAM, 01-14074-CIV-GRAHAM, 01-14078- CIV-GRAHAM, and 01-14230-CIV-GRAHAM or from filing any new lawsuit which relates in any way to Plaintiff Marcellus M. Mason's former employment and/or subsequent interactions with Defendants without first receiving permission from the Court, as set forth below. This injunction shall apply equally to any persons or entities acting at the behest, direction, or instigation, or in concert with Marcellus M. Mason.

Any request for permission to file a new lawsuit relating to the issues in the above captioned cases and/or Mason's former employment and/or subsequent interactions with Defendants SHALL be in the form of an application filed with the Clerk of Court and addressed to United States District Judge Donald L. Graham. This application shall consist of a one paragraph explanation of the issues in the proposed lawsuit, shall contain the names of all proposed parties and shall not exceed one page. The application shall not include any proposed pleadings.

Any request for permission to file additional pleadings in the above captioned cases already before the Court SHALL be in the form of an application filed with the Clerk of Court and addressed to United States District Judge Donald L. Graham. This application shall consist of a one paragraph explanation of the requested relief in the proposed pleading, and shall not exceed one page. The application shall not include the proposed pleading.

See Docket Entry Number 878, (D.E. # 878, pgs. 8,9).

The Lawsuit Was No Frivolous


On June 20, 2001, Judge Graham expressly found that this lawsuit was not frivolous and had merit. "However, there remain, as this Court recommended, various viable claims for trial." See Report and Recommendation, (D.E #766, pg. 5), and Order Adopting R&R, (D.E. 791). Judge Graham and his Magistrate had previously ruled that such an injunction was improper. Highlands County specifically asked for the type injunction that Judge Graham concocted on September 20.2001 in a lawsuit that it filed in Case No. 00-14240. However, on January 16, 2001 and February 13, 2001, Judge Graham and Judge Graham's own 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), URL: Report and Recommendation,"R&R", (D.E. #27), Order Adopting Report and Recommendation,"R&R". In the period between February 13, 2001 and September 20, 2001, Mason did not file any lawsuit in the S.D. FL.

No History of Sanctions For Filing Frivolous Motions

In a very litigious case with filings approaching a thousand docket entries, Judge Graham fails identify a single instance where he sanctioned Mason or threatened to sanction Mason for filing frivolous pleadings. See Complete Docket, Case No. 99-14027-Civ-Graham/Lynch. Federal Rule of Civil Procedure 11 provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support. See Lectlaw, Legal Definition of Sanctions, Rule 11. Judge Graham was certainly aware of the fact that he could have imposed sanctions under Rule 11 for filing a frivolous pleadings because in Attwood v. Singletary, Case No. 95-5294, 105 F.3d 610 (11th Cir. 1995)he dismissed the case and imposed sanctions pursuant to Rule 11 and 28 U.S.C. § 1915(d)because the Plaintiff falsely stated his financial status in his in forma pauperis affidavit. In this matter, Judge Graham had from February 1999 to June 20, 2001 when the case was closed and 791 filings, yet Judge Graham did not find one single motion filed by Mason to be worthy of Rule 11 sanctions. All of sudden on September 20, 2001, or three months after case was closed, Judge Graham concocts a pre-filing injunction, sua sponte.


Pattern And Practice

Judge Graham has a pattern and practice of ignoring binding U.S. Supreme Court precedent anytime he disagrees with it. A serious allegation such as this should be supported by facts. Since this a fact oriented website, please see the following posts for support of the allegation that Judge Graham ignores binding precedent by the Supreme Court anytime he sees fit:

LEGAL ERROR AND JUDICIAL MISCONDUCT


Circuit Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, has statutory responsibility under 28 U.S.C. §351 et.seq., to "handle" complaints of judicial misconduct. Judge Edmondson is of the apparent belief that a federal judge can make bad faith legal errors and escape discipline because the complaint is "directly related to the merits of a decision or procedural ruling". See for example, Complaint No. 05-0008. It has been said that judicial independence encompasses making mistakes and committing error, but does not afford protection to judges who repeatedly ignore the law." Arizona Supreme Court, Judicial Ethics Advisory Committee, ADVISORY OPINION 92-10,(September 1, 1992). “Legal error and judicial misconduct are not mutually exclusive.” In Re Feinberg, 5 NY3d 206,New York State Commission on Judicial Conduct. "A single instance of serious, egregious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduct." In re Quirk, 705 So.2d 172 (La., 1997). "[J]udicial misconduct (including improper ex parte communications) varies in degree from plainly criminal or corrupt misconduct, through injudicious (but not corrupt) misconduct, to misconduct committed for proper motives though pursued by prohibited means." Larsen, Matter of, 616 A.2d 529, 532 Pa. 326 (Pa., 1992). An emerging pattern of legal errors even though not an egregious legal error nor bad faith should be labeled misconduct because the continuing pattern of legal error constitutes neglect and ignorance of governing statutes. Miss. Com'n On Jud. Performance v. Britton, 936 So.2d 898 (Miss., 2006). See also In Re James Barr, 13 S.W.3d 525 (Tex.Rev.Trib., 1998)("legal error by a judge may constitute grounds for a finding of judicial misconduct if the commission of legal error is founded on bad faith.");Goldman v. Nevada Com'n on Judicial Discipline, 830 P.2d 107, 108 Nev. 251 (Nev., 1992)("An experienced trial judge's ignorance of proper contempt procedures, without more, has been held to constitute the bad faith necessary to a finding of willful misconduct." )


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 originally assigned to Judge Edward Davis, retired, and 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.” ("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 rec6rd. 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.















Posted by Marcellus Mason at 12:47 PM 0 comments
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