THE ELEVENTH CIRCUIT, USCA, Judges Birch, Marcus and Black: MAKES A MOCKERY OF THE APPELLATE PROCESS TO HIDE MISCONDUCT OF U.S. DIST. JUDGE DONALD L. GRAHAM

 

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Judge Donald L. Graham is Above the Law!!!

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Table of Contents

Basis for this Appeal

A Tale of Two Appeals, Different Judges Same Facts,  Different Outcome.

Actual Opinion

Background Material

Judge Graham and Eleventh Circuit Attempt to Kill Appeal on Launching Pad

Actions of the Eleventh Circuit on Appeal 

Important Facts regarding this Appeal

ELEVENTH CIRCUIT IGNORES ISSUE AGAIN ON MOTION FOR REHEARING

See Core Allegations of Misconduct

See Banned Out of Court Communications 

 

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A tale of two Appeals: Two S.D. Fla. Judges, Precisely the Same Facts, Different Result on Appeal

 

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 in the decision below, S.D. Fla., failed to make the same explicit finding, but was affirmed on appeal.  See mmason.freeshell.org/WorldThrust.htm .

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BASIS FOR THIS APPEAL AND HISTORY (Working)

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

Mason v. Highlands County Board of County Commissioners, Heartland Library Cooperative, Hardee County Board of County Commissioners, DeSoto County Board of County Commissioners, Okeechobee County Board of County Commissioners, et.al., Southern District of Florida, Judge Donald L. Graham, Case No. 99-14027-CV-Graham/Lynch.  

This appeal claims that Mason, the Appellant violated the following orders that were rendered by a Magistrate Judge, Frank Lynch Jr.

In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue  asked the Magistrate to grant them preliminary injunctions , Docket Entry No. 231, that required Mason to contact them before he could talk to the government defendants or requests Public Records under Florida Law.   These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL . 
 
These orders were granted on June 19, 2000 and July 25, 2000:
 

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. 

 

 

On November 2, 2000, Judge Donald L. Graham stated the following:

  

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

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

See Docket Entry 407.  

Highlands County, through its attorneys asked Judge Graham to dismiss a lawsuit because of alleged violations of these injunctions or "discovery orders" [DE #201, DE #246]. See Docket Entries 511 and 646.  Examples of these banned out court communications are presented below.  These alleged violations consisted solely of out of court communications.   

On May 31, 2001, Magistrate Judge Frank Lynch Jr. recommended that Mason's lawsuit be dismissed because of alleged out of communications with Highlands County.  See Docket No. 766.  On June 20, 2001, Judge Graham conducted what he called a mere two page "de novo" review which adopted every single word of the Magistrate's Report and Recommendation.   See Docket No. 791.  This lawsuit was dismissed pursuant to Rule 41(b), Fed.R.Civ.P. 

A notice of appeal was filed and promptly on June 25, 2001 and docketed by the Eleventh Circuit on July 3, 2001.  

On September 20, 2001, Judge Graham rendered a pre-filing injunction sua sponte.  See Docket Entry No. 878 ("THIS CAUSE came before the Court sua sponte.").  Sua Sponte issuances of pre-filing injunctions have been universally and soundly rejected by every appellate court in the United States to have decided such an issue.  See mmason.freeshell.org/RejectSuaSponte.htm  Prior to the filing of appeal, Mason file a petition for mandamus, Case No. 01-15754,  attacking this sua sponte issued filing injunction on October 1, 2001.  On December 5, 2001, the Eleventh Circuit refused to review the validity of the sua sponte issued pre-filing injunction and denied the petition for mandamus while stating only: "The " petition for writ of mandamus and petition for writ of
prohibition" is DENIED." See Order Denying Mandamus.  As a matter of fact, the Eleventh Circuit has a very long history of refusing to review this sua sponte issued pre-filing injunction for validity.  See http://mmason.freeshell.org/SuaSponte.htm#AppellateHistory.

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ABUSE OF IN FORMA PAUPERIS STATUTES

Judge Graham and the Eleventh Circuit both unlawfully attempted to kill this appeal by attacking Mason's in forma pauperis motion or motion to have filing fees waived.  NEITZKE v. WILLIAMS, 490 U.S. 319, 324 (1989) states "1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious."  When this case was initiated, Judge Edward Davis, retired, allowed Mason to proceed in forma pauperis.  See Docket Entry No. 3.  On September 18, 2001, Judge Graham's Magistrate, Frank Lynch Jr. stated:

THIS CAUSE having come on to be heard upon an Order of Reference from the Honorable Donald L . Graham, dated September 10 , 2001, and this Court having reviewed the aforementioned Motions and the pertinent portions of the record, and noting that in other actions filed by Plaintiff, Judge Graham has denied Plaintiff' s motions to proceed in forma pauperis (Case Nos . 00-14116, 00-14201, 00-14202, 00-14240), and further noting that this Court has compared Plaintiff's previously filed IFP motions and accompanying affidavits with the instant motion and affidavit and has found no relevant difference, and being otherwise advised in the premises , it is hereby ORDERED AND ADJUDGED that Plaintiff's Motions to Proceed in Forma Pauperis are DENIED.

See Docket Entry No. 877.  On December 12, 2001, the Eleventh Circuit in a mere conclusory fashion and without any proof asserted the following:

Appellant's motion for leave to proceed on appeal in forma pauperis is DENIED because appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees

See Court Order.  On December 15, 2001, Mason filed a motion for clarification with the Eleventh Circuit providing more financial information and asking where the court's proof was that Mason had not truthfully provided information to the Court.  On February 7, 2002, the Eleventh Circuit construed the motion for clarification as a motion for reconsideration and denied the IFP application with absolutely no proof that Mason or the Appellant had been untruthful.  See Order dated Feb. 7, 2002In Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir., 2004), the Eleventh Circuit held:

 When considering a motion filed pursuant to § 1915(a), "[t]he only determination to be made by the court ... is whether the statements in the affidavit satisfy the requirement of poverty." An affidavit addressing the statutory language should be accepted by the court, absent a serious misrepresentation, and need not show that the litigant is "absolutely destitute" to qualify for indigent status under § 1915. Such an affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependents. In other words, the statute is not to be construed such that potential litigants are forced to become public charges or abandon their claims because of the filing fee requirements. "[W]here the [IFP] affidavit is sufficient on its face to demonstrate economic eligibility, the court should first docket the case and then proceed to the question ... of whether the asserted claim is frivolous." Watson, 525 F.2d at 891. The district court must provide a sufficient explanation for its determination on IFP status to allow for meaningful appellate review.

 

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Actions of the Eleventh Circuit on Appeal 

In this appeal the Eleventh Circuit takes the absurd position, that it can not review the validity of the injunctions because they are "discovery orders".   See "discovery orders", below.  In refusing to review these same "discovery orders" on April 26, 2001, the Eleventh Circuit took a similar position. See Opinion Case No. 01-11305.  As fully, set forth above, Judge Graham called these orders injunctions and the Defendant asked for and got the very injunctions granted they sought.   In this appeal Mason attacked the validity of these orders because of the following reasons:

  • Docket entries 201 and 246 or "discovery orders" are really injunctions and a federal Magistrate may not issue an injunction

  • These Orders violate the First Amendment, Tenth Amendment, and the Florida Constitution,  

In this appeal, the Eleventh Circuit boldly admits to the following:

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

See Illegal Orders, below.  This opinion is 14 pages long and discusses alleged violations of these so-called "discovery orders", Docket entries 201 and 246 ,  but refuses to discuss the validity of these so-called "discovery orders".  

Additionally, while the Eleventh Circuit freely admits that it was briefed on the fact that Judge Graham should have disqualified, it does address this issue.  

Mason also raises issues that relate to non-sanction matters, e.g., the dismissal of individual defendants from the second consolidated amended complaint, the dismissal of claims from his fourth consolidated amended complaint, the denial of his motions to disqualify the district court and magistrate judges, and the merits of his complaint.

See Other Issues, below.  

Among the many egregious acts committed by the Eleventh Circuit is that it went what it termed "beyond the scope of appeal" to affirm Judge Graham.  On March 6, 2002, the Eleventh Circuit struck Mason's or the Appellant brief for arguing against a sua sponte issued pre-filing injunction rendered on September 20, 2001.  See Order Striking Brief.   However, when the Court rendered its decision in this case on October 16, 2002, it then used the same sua sponte issued pre-filing injunction rendered on September 20, 2001 that it said was "beyond the scope of appeal" to affirm Judge Graham.  See Pg. 14, below.  On May 14, 2004, the Eleventh arrogantly admitted that it had struck Mason's brief for arguing against the same sua sponte issued pre-filing injunction of September 20, 2001:

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 were beyond the scope of appeal."

See pgs. 4-5, Case No. 04-11894, May 20, 2004.  Equally outrageous is the fact that the Eleventh Circuit used an clearly invalid sua sponte issued pre-filing injunction rendered on September 20, 2001 to justify a Rule 41(b) dismissal of a case closed on June 20, 2001.  See Docket Entry 791.  See also mmason.freeshell.org/SuaSponte.htm

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Motion for Rehearing on Appeal

A motion for rehearing was filed with the Eleventh Circuit which specifically pointed out to the to the Court that it had failed to address the issue of whether Judge Graham should have disqualified or not.  This motion also pointed out to the Court that it had not addressed the issue of whether or not the so-called "discovery orders" or preliminary injunctions, Docket entries 201 and 246 , are injunctions issued by a Magistrate which is prohibited  by 28 U.S.C. § 636 (b)(1)(A) and whether these orders violate the First Amendment, Tenth Amendment, Florida Constitution and the Florida Public Records Act.  The Eleventh Circuit responded with a terse one paragraph reply:

The petition(s) for rehearing filed by appellant, Marcellus M. Mason, Jr. is DENIED

See Order Denying Rehearing

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Important Facts regarding this Appeal:

  • Core Allegations of Misconduct are not addressed in this matter, they are simply ignored.  Serious allegations of misconduct are not denied, they are simply ignored.   

  • This case was noticed for appeal on June 25, 2001.  The briefs were filed in March 2002.  See Mason's or Appellant's Brief and Highlands County Defendant Appellees' Brief

  • Mason argued that Judge Graham should have recused and disqualified himself.  Even though fully briefed on this matter, the Eleventh Circuit admittedly refuses to discuss this issue in this appeal.  See "Other Issues", below.  

  • Even though the lower court case was closed on June 20, 2001, See Docket Entry 791, the Eleventh Circuit uses a sua sponte issued pre-filing injunction that was issued on September 20, 2001, Docket Entry 878, pg. 3, to affirm and uphold Judge Graham.  See "pre-filing injunction" reference below.  The reader will observe that significant dates are not mentioned in this opinion.  Even more outrageous, the Eleventh Circuit struck Mason's brief for arguing against the sua sponte issued pre-filing injunction of September 20, 2001 because they claimed it was beyond the scope of appeal, but yet when they upheld Judge Graham, the Eleventh Circuit used the same sua sponte issued pre-filing injunction of September 20, 2001to justify the dismissal of a case that was closed on June 20, 2001.  Additionally, while the appeal was pending, Mason filed a petition for mandamus on October 1, 2001, which argued that Judge Graham should be disqualified and that the sua sponte issued pre-filing injunction of September 20, 2001 was clearly illegal, however on December 5, 2001, the Eleventh Circuit denied the mandamus petition while stating only: The “petition for writ of mandamus and petition for writ of prohibition” is DENIED .  See Opinion, Eleventh Circuit Case No. 01-15754.   

  • The opinion does not discuss the validity of the orders rendered by a Magistrate which prohibited direct communication by the Plaintiff, Marcellus Mason, with his government, Highlands County Board of County Commissioners. See Docket Entries 201 and 246.   Mason contended that these orders violated the First Amendment, Tenth Amendment, 28 U.S.C. § 636 (b)(1)(A).  This opinion admits that it was properly briefed on these orders, but it refuses to discuss their validity.   See "illegal orders", below.  

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IN THE UNITED STATES COURT OF APPEALS

 

FOR THE ELEVENTH CIRCUIT]

 

 

No.01-13664

Non-Argument Calendar

 

 

D.C. Docket No. 99-14027-CV-DL MARCELLUS M. MASON, JR.,

FILED

U.S. COURT OF APPEALS ELEVENTH CIRCUIT

 

 

THOMAS K. KAHN CLERK

 MARCELLUS M. MASON, JR., 

Plaintiff-Appellant,

 

versus

 

HEARTLAND LIBRARY COOPERATIVE, et al.

 

Defendants-Appellees.

 

 

 

Appeal from the United States District Court for the

Southern District of Florida

 

(October 16, 2002)

 

Before BIRCH, BLACK, and MARCUS, Circuit Judges.

Judges: Hon. Stanley F. Birch, Jr., Hon. Stanley Marcus, and Hon. Susan H. Black    

PER CURIAM:

 

Marcellus Mason, proceeding pro se, appeals the district court's dismissal of his fourth amended complaint against Heartland Library Cooperative ("Heartland"), Highlands County Board of County Commissioners (“Highlands

County’), and Hardee County Board of County Commissioners ("Hardee County") (collectively, "Heartland").[1] Mason argues that the district court erred in dismissing his amended complaint for his failure to comply with the court's orders. Because the record shows that Mason clearly disregarded the court's orders, even when threatened with dismissal of his complaint, and a lesser sanction would not suffice, we AFFIRM.

 

I. BACKGROUND

Mason was terminated from his employment with Heartland which provided library services to a number of counties in Florida. Following Mason’s termination, the Sebring Public Library imposed a "no trespass" warning against him based on his alleged threats and harassing conduct against the library's employees, volunteers, and visitors. His complaint and amended complaints were dismissed in part with prejudice and in part without prejudice subject to


amendment. R5-192. After Mason amended his complaint and Heartland answered, Heartland moved to enjoin Mason from contacting them, their officials and employees directly via e-mail and facsimile transmissions because it interfered with their work and defied their written requests that he either cease and desist or use regular mail.  R5-199. On 19 June 2000, the magistrate judge issued a discovery order prohibiting Mason from contacting the defendants or their employees "regarding any matter related to this case" and directing Mason to "correspond only with Defendants' counsel."  R5-201-1.  On 6 July 2000, Heartland renewed their motion based on Mason's continued contact with them via e-mail and for contempt and sanctions. They alleged that Mason had indicated that he was free to contact them about anything outside of the complaint and submitted copies of 20 emails and a letter sent by Mason to employees which concerned a trespass issue alleged in his complaint.  R6-234, Exs. B, C.  In response, Mason admitted sending some of the e-mails but denied sending others.  On 25 July 2000, the magistrate judge granted Heartland's motion, and "prohibited Mason from contacting [Heartland or their employees regarding any matter related to this case" or other cases in which they were named as defendants, and ordered Mason to "correspond only with their counsel."  R6-246-l-2.  The magistrate judge denied the request for contempt and sanctions, but noted that

 

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"any future violations" could result in sanctions "including a recommendation of dismissal with prejudice as to all claims." Id. at 2.

Mason moved for clarification of and to rescind the magistrate judge's order, arguing that it made it impossible for him to request public records like other Florida citizens.  On 15 August 2000, the magistrate judge denied both motions, and explained in the denial of the motion for clarification that "any [further] violations of the order will result in the imposition of sanctions or dismissal with prejudice as to all plaintiff's claims."  R7-279, 281.[2]  The district court denied Mason's appeal, finding that the magistrate judge's Orders were not clearly erroneous. R10-407-2.

In March 2001, Heartland moved for sanctions in the form of dismissal of the action, alleging that Mason had knowingly violated the Orders and demonstrated an intent to continue to defy the Orders. R12-511-2, 3-5. They claimed that, during the week of 5 February 2001, Mason had demanded to view his personnel file from Highlands County's Human Resource Director Fred Carino, a named defendant in the case. Id. at 3. They stated that, on 13 and 14 February 2001, Mason also appeared at Carino's office and demanded to view the

 

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billing records for Highlands County's attorney and Highlands County's liability insurance documents. Id. at 3-4. 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. Id. at 4-5. 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. R12-511, Ex. 7 at 3. They attached a copy of an e-mail apparently sent by Mason in which he explained that he would file a criminal complaint against Carino if he was denied any requested documents and expressed his belief that the county had "waived" its rights under the Orders as a result of Carino's conversations with Mason and letter. R12-511, Ex. 7 at 1-2.  Heartland also moved to compel Mason to respond to their interrogatories, in which they requested information regarding his "computers, computer Internet service providers, e-mail names and Internet Provider ("IP") addresses." R12-532-1. Mason denied Heartland's allegations, but also argued that their motion should be denied because the district court lacked jurisdiction over Florida public records and he had statutory and constitutional rights to access them. R12-526-2-3. He requested an evidentiary hearing on the motion for sanctions. R14-608.

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Mason moved to vacate the Orders and argued that a Highlands County employee had violated the Orders by sending requested records directly to him. R12-509, 515. The magistrate judge denied the motions, noting that Mason had already appealed the Orders to the district court. R12-524.  Mason also moved to clarify the Orders, but this motion was also denied. R12-527, 528.

On 27 March 2001, the magistrate judge ordered Mason to respond by 6 April 2001 "addressing the authenticity of all e-mails purportedly sent by him" attached to Heartlands' motion for contempt. R14-602. In response, Mason objected that the Orders were void because the magistrate judge lacked jurisdiction or authority, and again moved to clarify the Orders. R14-632-5-6, R14-633. He did not address the authenticity of the e-mails.

On 6 April 2001, Heartland again moved for sanctions in the form of dismissal because Mason had “repeatedly personally contacted [by e-mail] supervisory employees and/or individual Defendants” in the case since the magistrate judge's 27 March order. R14-646-3. Heartland attached copies of 11 e-mails. R14-646, Ex. 1.  On 10 April 2001, the magistrate judge noted that a show cause hearing was scheduled for 9 May 2001 on Heartland's motion for sanctions and Mason's failure to respond, and granted Mason's motion for an evidentiary hearing. R14-649.

 

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On 16 April 2001, Heartland moved for a determination of the sufficiency of Mason's response to their requests for interrogatories, in which they “requested that [Mason] admit or deny whether he authored several e-mails” and “sends e-mails to [them] utilizing certain names and IP addresses," and requested an order compelling a response. R15-661-1-2, 9. Mason responded by arguing that Heartland's interrogatories requested irrelevant information, and moved to stay the show cause hearing pending a writ of mandamus to this court regarding the Orders.[3]  R15-662, 666. On 23 April 2001, the magistrate judge denied the motion to stay and ordered Mason to respond to Heartland's request for admissions “within eleven [] days” and warned that Mason's “failure to comply with this order will result in the imposition of sanctions including, but not limited to, dismissal of this action.” R15-680.

On 7 May 2001, Mason filed a notice stating that he would be unable to attend the 9 May show cause hearing because he lacked transportation to make the 80-mile trip from his residence to the courthouse. R15-704. Although “not unsympathetic” to Mason's transportation problems, the magistrate judge noted that Mason had filed the lawsuit and was responsible for “find[ing] the means to attend the hearing." R16-707-1. The magistrate judge continued the hearing until

 

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23 May 2001, ordered Mason to show cause why his complaint should not be dismissed, and stated that “[n]o further continuances or notices of unavailability will be considered.” Id. at 2.  Mason responded to the show cause order on 21 May 2001, arguing that the motion for sanctions should be denied because the Orders upon which Heartland relied were void. R17-738-3. He claimed that “[a]ny and all communications [he] may have had with the defendants and their counsel [we]re perfectly legal and well within the law” and stated that he would not participate in any show cause hearing on the motion for sanctions. Id. at 3, 12. He commented that, although the court might “now consider [Mason] in contempt of [the O]rders,” he would continue to contact Heartland “pursuant to the First Amendment... and not pursuant to any order of a Magistrate Judge” and would not abide by a court order “that attempts to impose conditions upon [him] to pursue public records under Florida law.” Id. at 12, 13. Mason did not appear at the hearing on 23 May 2001. R17-766-5.

On 31 May 2001, the magistrate judge recommended that Mason's complaint be dismissed based on findings that Mason had “intentionally and continually violated” the court's orders and had "indicated that his intention not to abide by... and to continue filing pleadings in total disregard of” the court's orders. Id. at 7. After reciting the text of some of the e-mails received by

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Heartland from Mason, which included “racist” comments, the magistrate judge noted that the "e-mails were a significant discovery issue which needed to be addressed before” the court would permit Heartland to access "private information from [Mason's] e-mail providers." Id. at 4. Mason objected to the magistrate judge's report and recommendation, but the district judge adopted the magistrate judge's recommendation, granted Heartland's motion for sanctions in the form of dismissal, and dismissed Mason's remaining claims with prejudice. R18-783, 791. Mason's motion for reconsideration was denied. Mason timely appealed. [4]

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

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Mason contends that the e-mails that became the focus of the discovery dispute were irrelevant to any claim or defense in the case, and that the district court acknowledged this. Mason claims that he denied the authenticity of the e-mails, but that the magistrate judge "authenticated them anyway."  Mason argues that the magistrate judge failed to make the necessary findings that the defendants were prejudiced by the e-mails and that sanctions lesser than dismissal would suffice.  Mason also raises issues that relate to non-sanction matters, e.g., the dismissal of individual defendants from the second consolidated amended complaint, the dismissal of claims from his fourth consolidated amended complaint, the denial of his motions to disqualify the district court and magistrate judges, and the merits of his complaint.

 

II. DISCUSSION

We review a district court's dismissal pursuant to Federal Rule of Civil Procedure Rule 41(b) for abuse of discretion. Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985).  “Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.”  Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227(1821).  Although the “outright dismissal of a lawsuit is a particularly severe sanction” for conduct by a litigant that abuses the

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judicial process, it is within a federal court's inherent power.  Chambers v. NASCO, Inc.,501 U.S. 32, 45, 111 S.Ct. 2123, 2133 (1991)(holding that district court did not abuse its discretion when it imposed sanctions under its inherent power, even though the conduct was sanctionable under the Federal Rules of Civil Procedure).

Upon motion of a defendant, a district court may dismiss a complaint based on the plaintiff's failure to comply with the court's orders or the federal rules.  Fed. R. Civ. P.41(b).  Although “dismissal of an action with prejudice ‘is a sanction of last resort, applicable only in extreme situations,’”  Jones v. Graham, 709 F.2d 1457, 1458 (11th  Cir. 1983) (per curiam) (citation omitted), a Rule 41(b) dismissal “is appropriate where there is [1] a clear record of 'willful' contempt and [2] an implicit or explicit finding that lesser sanctions would not suffice.”  Gratton v. Great Am. Communications, 178 F.3d 1373, 1374 (11th Cir. 1999) (per curiam).  In dismissing a case under Rule 41(b), a district court may consider a “long pattern of conduct which amounted to want of prosecution and several failures by [the] plaintiff to obey court rules and orders.”  Jones, 709 F.2d at 1462.  Because a Rule 41(b) "dismissal must, at a minimum, be based on evidence of willful delay[,] simple negligence does not warrant dismissal.  McKelvey v. AT&T Tech. Inc., 789 F.2d 1518, 1520 (11th Cir. 1986) (per curiam).  Where the

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litigant has been warned that disregard of an order may lead to dismissal, we have generally not found a subsequent dismissal an abuse of discretion.  Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).

In this case, Mason repeatedly exhibited disregard and contempt for the magistrate judge's orders and the district court's authority to control the litigants before it.  See R6-234 at Attachs. B, C; R11-435-1; R14-632-5; R14-652 at 1-5; R19-900-7.  Moreover, the magistrate judge and district court attempted to clarify with Mason that the Orders were not injunctions, but rather necessary for the orderly litigation of the case.  It is significant that the defendants continued to produce records upon Mason's request, despite his clear violation of the Orders, and reminded him to contact the defendants via their counsel.  It is also significant that Mason admitted sending e-mail to former defendant Carl Cool on 14 July 2000, after the magistrate had issued the 19 June 19 2000 order, and admitted that he had requested billing records directly from Highlands County.

In recommending the dismissal with prejudice of Mason's complaint, the magistrate judge properly reviewed the entire record and identified Mason’s continued disregard for the court's orders and rules.  See Jones, 709 F.2d at 1462.  Despite the magistrate judge's warnings that Mason was not to contact the defendants directly and that his violation of the Orders could result in the

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dismissal of the action, the record shows that Mason continued to directly contact with the defendants.  When the magistrate judge attempted to resolve the issue of the authenticity of the e-mails, which Mason either denied or stated had nothing to do with matters related to the complaint, Mason failed to respond to the magistrate judge's order that he respond.  When the magistrate judge granted Mason's request for an evidentiary hearing to resolve the e-mail dispute, Mason did not appear and instead filed a notice that he would not appear in which he stated that he did not believe that the magistrate judge had the legal authority to conduct such a hearing. Therefore, the district court did not err when it found that Mason had shown willful contempt for the magistrate judge's orders. See Gratton, 178 F.3d at 1374.

Although the district court did not make an explicit finding that a sanction less than dismissal with prejudice would have sufficed, it is unclear what lesser sanction would have been more appropriate in this situation. It is noteworthy that the magistrate judge had been flexible in first ordering Mason to address the issue of the authenticity of the e-mails in a written response, and later granting his request to confront the defendants' witnesses at an evidentiary hearing and continuing the hearing when Mason indicated that he could not attend. The magistrate judge warned Mason on several occasions that a failure to comply with the court's orders could result in the dismissal of his case. Moreover, despite the

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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.

            In sum, the district court properly exercised its discretion under Rule 41(b) to impose respect and submission to its lawful orders.  See Chambers, 501 U.S. at 45, 111 S. Ct. at 2133; Anderson, 19 U.S. at 227. Because the record: (1) shows a clear record of disregard for court orders by Mason, even when threatened with the prospect of dismissal; and (2) supports an implicit finding that a lesser sanction would not have sufficed, the district court did not abuse its discretion in dismissing Mason's action with prejudice pursuant to Rule 41(b).  See Gratton, 178 F.3d at 1374; Moon, 863 F.2d at 837.

 

III. CONCLUSION

Upon review of the record, we find that the district court did not abuse its discretion. Therefore, we affirm the district court's dismissal of Mason's action with prejudice.

 

AFFIRMED.  

 

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BACKGROUND MATERIAL
Marcellus M. Mason, Jr. of Sebring, Fl. filed an employment discrimination lawsuit against Highlands County Board of County Commissioners and Heartland Library Cooperative and other governmental entities and individual government employees in February 1999.  This case was ultimately assigned 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 communications between Highlands County and Mason.  "R&R" (D.E. 766), Order adopting R&R (D.E 791)
 
In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue  asked the Magistrate to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants.  These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL . 
 
These orders were granted on June 19, 2000 and July 25, 2000.  Both are attached to this email 
 

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. 

 

 

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[1]In his fourth amended complaint, Mason sought relief on 27 counts.  R8-321-63-73.  He maintained that his termination was racially motivated despite the defendants’ claims of ““insubordination,””. id. at 5, and that his behavior was “violent or confrontational.”  Id. at 14. The magistrate judge recommended dismissal of many of the counts, including some which were previously dismissed by the district court.  R11-435-1.  The magistrate judge noted that “it is obvious [that Mason] does not adhere to this Court’s previous Orders directing that the Local Rules and the Federal Rules of Civil Procedure be complied with in respect to seeking amendments of his Complaint, adding causes of action or otherwise.” Id. at 1-2.  The magistrate judge recommended that Mason be permitted to proceed on “breach of contract ... and [42 U.S.C.] §1983 action… in respect to his employment contract and employment relationship with the Defendants.” Id at 4. The district judge adopted the magistrate judge’s recommendations. R11-466.

[2] The 25 July and 15 August orders are central to this appea1 and will be referred to as “the Orders.”

[3] We denied Mason’s petition for writ of mandamus. In re Mason. No. 01-15754.

[4] This appeal is actually Mason's fifth appeal in this case. Nos. 00-10395, 00-16064, and 02-10868, were dismissed for want of prosecution and Nos. 01-11850 and 01-11903 were dismissed for lack of jurisdiction.

Following the district court's dismissal of his case, Mason filed a series of motions seeking clarification of the orders, the dismissal, and his appeal. The district court denied these motions, finding them "without merit" and attempts "to protract the litigation." R19-874-2. Finding that Mason was acting in bad faith, the district court subsequently enjoined Mason from filing any further pleadings in this case and the 11 other cases that he filed against the defendants relating to his employment. R19-878. The district court, sua sponte, set a hearing to "address proper procedure and the conduct of the parties during this litigation." R19-884. Although the hearing was continued at Mason's request, he failed to appear and the district court sua sponte issued an order finding that Mason's letters and pleadings to the court evidenced "a mission to harass and intimidate" and notifying Mason that any "further misbehavior shall result in contempt proceedings." R19-885, 886, 892, 895-5, 10; R19-900-7. Mason appeared after he was ordered to show cause why he should not be held in criminal contempt and warned that an arrest warrant could be issued if he failed to appear. R19-900, 905. Contempt proceedings were subsequently filed against Mason. See United States v. Mason, No.02-14020 (S.D. Fla.) (contempt proceedings pending in the district court).

 

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CORE ALLEGATIONS OF MISCONDUCT AND ABUSE OF POWER BY JUDGE DONALD L. GRAHAM:

  • Judge Graham and his Magistrate usurped legal authority by ordering Mason not to communicate with his government, Highlands County Board of County Communications.   See Docket Entry No. 201. Additionally, Judge Graham prohibited Mason from requesting public records directly from Highlands County. See Docket Entry No. 246.  Among other things, these orders are blatant violations of the First Amendment.  See Overruling the First Amendment.  
  • Judge Graham lied and intentionally misrepresented the law.  Judge Graham told Mason that the law precluded him from asserting claims of intentional discrimination under 42 U.S.C. §1981 against a state actor, Highlands County Board of County Commissioners.  See Docket Entries Nos. 435 and 466.  At the very same time, Judge Graham was allowing a plaintiff in another case [Fa Nina St. Germain v. Highlands County, Case No. 00-14094] to assert claims under  42 U.S.C. §1981 against the very same state actor,  Highlands County Board of County Commissioners.  See Summary Judgment, Case No. 00-14094.  It might be noted that Ms. St. Germain was represented by counsel, Peter Helwig, Lakeland, FL and Mason was not represented by counsel.  Judge Graham does not dispute that he intentionally lied.  On December 16, 2004, Docket Entry No. 932, Judge Graham was presented with a letter or request to file a motion stating that he, Judge Graham, had lied, Judge denied the right to file the motion without denying the allegation that he had lied.  See Docket Entry No. 931
  • Judge Graham refused to rule on a motion for a preliminary injunction by Marcellus Mason.  The motion was submitted on November 24, 1999 (Docket Entry No. 39) and was never ruled on by Judge Graham.  It was made moot on June 20, 2001 when Judge Graham dismissed the case because of alleged out of court communications by Mason with the Highlands County Government. As late as April 2001, or 17 months after Mason filed the motion, the Eleventh Circuit said a mandamus petition was frivolous, because Mason had no right to have his motion decided.  See No Right To have Motion  Decided
  • Judge Graham allowed scores of other important motions to simply linger without addressing them.  Some of these filings languished for as long as eight months.   See Languishing Motions.  
  • Judge Graham abused the criminal contempt procedure by taking a sua sponte issued pre-filing injunction and making it the basis of a criminal contempt information.  On September 20, 2001, Judge Graham issued a pre-filing injunction against Mason sua sponte.  Additionally, the Eleventh Circuit, has used all manner of tactics to avoid reviewing this clearly invalid sua sponte issued pre-filing injunctionSee Sua Sponte page and Contempt page.  
  • Judge Graham awarded a massive $200,000 in attorney's fees to Highlands County against Mason, not on the quality of the underlying lawsuit, but based upon Judge Graham's speculation about Mason's motive.  Judge Graham used the sua sponte issued pre-filing injunction to award $200.000 against Mason, a man Judge Graham knew didn't have the money because he was proceeding in forma pauperis.  See Docket Entry #882.  

 

 

 

 

 

 

 

 

 

 

 
 
 

BANNED OUT OF COURT DIRECT GOVERNMENT COMMUNICATIONS

 

 

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

 

(D.E. 511, ¶6, PG.3)

 

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

D.E. 511, ¶7, PG.3)

 

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

D.E. 511, ¶8, PG.4)

 

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

D.E. 511, ¶9, PG.4)

 

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

D.E. 511, ¶10, PG.4)

 

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

D.E. 511, ¶11, PG.4)

 

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

D.E. 511, ¶15, PG.5)

 

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

 

(D.E. 646, ¶10, PG.3)

 

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

(D.E. 646, ¶11, PG.4)

 

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

(D.E. 646, ¶12, PG.4)

 

 

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

(D.E. 646, ¶13, PG.4)

 

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

(D.E. 646, ¶14, PG.4)