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).
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.
- On 09/13/2002, Judge Graham entered a final judgment against me which awarded $200,000 in legal fees against me. (D.E. #911).
- 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).
- 01/04/2005, Judge Graham refused to disqualify himself again. (D.E. #931).
- 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.
- 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).
- 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.
- 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 .
