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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case No. 08-1143
MARCELLUS M. MASON, JR.
Plaintiff,
Vs.
THOMAS K. KAHN,
In his official capacity as Clerk
U.S. Court of Appeals for the 11th Circuit,
MICHAEL MUKASEY, in his official capacity
as Attorney General of the United States,
Defendants
_____________________________________/
PRELIMINARY STATEMENT
1. Plaintiff, Marcellus M. Mason Jr. is United States citizen and is concerned that the propensity of federal judges to protect one of their own is bringing discredit to the Federal Judiciary. This propensity has created a culture that has made a federal judge virtually unaccountable for his or her actions.
2. Marcellus M. Mason Jr. is concerned that members of the Eleventh Circuit, U.S. Court of Appeals have created a two tiered system of justice. This system is composed of unpublished opinions and published opinions. Published opinions are well reasoned and are dictated by the facts and the law. Unpublished opinions are an underground body of law. Unpublished opinions are results of the desire to reach a predetermined outcome, facts and law notwithstanding. Unpublished opinions are characterized by omissions of material facts and contorted views of the law. Unpublished opinions very often use truisms to suggest to the reader that a particular event has occurred when in fact it has not.
3. As a result of unpublished opinions, some federal judges are reversed for the exact same set of pertinent facts that another judge is affirmed for even in the same Circuit and District Court. While the courts involved in this matter have declined to publish their decisions, the Plaintiff has shared their decisions on the Internet at: http://mmason.freeshell.org/ , http://mcneilmason.wordpress.com ; http://donaldlgraham/blogspot.com ; and http://mmason.freeshell.org/blog/ . Massive email campaigns that are ongoing and continuing have been instituted that have informed the entire legal community of the decisions described herein. References to these websites maybe easily found in routine searches on the major Internet Search Engines such as Google, Yahoo, MSN, ask.com, and others. These emails have included almost every federal judge in the entire United States and all former law clerks to at least five sitting U.S. Supreme Court Justices.
4. Marcellus M. Mason Jr. has been victimized by the unpublished opinions of the Eleventh Circuit, United States Court of Appeals.
5. A respected jurist, Judge Richard Arnold, warned of the dangers of unpublished opinions.
“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 judgesare 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.Judge Arnold, now deceased, 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.
JURISDICTION AND VENUE
6. This case arises under the United States Constitution and the laws of the United States, and presents a federal question within this Court's jurisdiction under Article III of the federal Constitution, 28 U.S.C. Secs. 1331, 1343, and 1361.
7. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. Sec. 2201 et seq.
8. Venue is proper in this district under 28 U.S.C. Sec. 1391(e).
9. Plaintiff, MARCELLUS M. MASON, JR. (MASON) is a United States citizen residing in Sebring, Florida.
10. Defendant, Thomas K. Kahn, Clerk, U.S. Court of Appeals, Eleven Circuit, 56 Forsyth St. N.W., Atlanta, Georgia 30303.
11. Defendant, Michael Mukasey, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington, DC 20530-0001, is the Attorney General of the United States.
12. Defendant, Michael Mukasey, has supervisory authority over the United States Attorney, Southern District of Florida, which included, former U.S. Attorney, Marcos Daniel Jimenez, S.D. Fla. and AUSA Robert Waters of the Southern District of Florida.
STATEMENT OF FACTS
13. On or about February 4, 1999, Marcellus M. Mason, Jr., hereafter, “Mason”, filed an employment discrimination lawsuit against Highlands County Board of County Commissioners, Heartland Library Cooperative, and other governmental entities and officials.
14. The case number assigned was 99-14027-CIV.
15. This case was originally assigned to Judge Edward Davis who allowed Mason to proceed in forma pauperis.
16. Upon the retirement of Judge Edward Davis, the case was reassigned to Judge Donald L. Graham.
17. On or about November 24, 1999, Mason filed a motion for a preliminary injunction pursuant to Title VII. Judge Graham never ruled on this motion during the entire pendency of this matter.
18. On June 2000, Defendant Highlands County Board of County Commissioners asked for a preliminary injunction prohibiting direct communication between Mason and the local government defendants. Within approximately a week this motion was granted by a Magistrate Judge, Frank Lynch, Jr. On June 19, 2000, the Magistrate rendered the following order: “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.” (D.E. #201).
19. In July 2000, Defendant Highlands County Board of County Commissioners asked for a preliminary injunction prohibiting direct Florida Public Record requests between Mason and the local government defendants. On July 25,2000, the Magistrate rendered the following order: “Plaintiff shall correspond only with Defendants' counsel including any requests for public records”. (D.E. #246).
20. During the course of litigation, despite repeated and vehement challenges, both Judge Graham and his Magistrate declined to state where they got the legal authority to render these injunctions.
21. On March 13, 2001, Mason filed a petition for mandamus seeking to force Judge Graham to rule on his motion for a preliminary injunction that had been pending since November 24, 1999. Additionally, the petition sought to have the preliminary injunctions of June 19, 2000, (D.E. #201), and July 25, 2000, (D.E. #246), vacated.
22. On or about April 2001, while denying a mandamus petition for mandamus [Case No. 01-11305], among other things, the Eleventh Circuit and Judge Ed Carnes ruled that Mason did not have a right to have his motion for a preliminary injunction decided and that they could not review the two injunctions granted to the Defendants because the Magistrate had labeled them “discovery orders” or “pretrial discovery issues” and the Eleventh Circuit was without legal authority to review these orders. However, in , Cuban American Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995), a published opinion, the Eleventh Circuit held that "where the order has the effect of a preliminary injunction this court has jurisdiction to review the order and is not bound by the district court's designation of the order."
23. Defendant Highlands County filed two motions for sanctions in the form of dismissal for alleged out of court communications between Mason and his local government. (D.E. #511) and (D.E. #646). These out of court communications were said to be in violation of the Magistrate’s injunctions, (D.E. #201), (D.E. #246).
24. On May 13, 2001, Magistrate Frank Lynch Jr., rendered a Report and Recommendation, “R&R”, recommending that the Plaintiff’s lawsuit be dismissed because of alleged violations of the injunctions he issued, (D.E. #201), (D.E. #246).
25. On June 20, 2001, Judge Graham granted the defendant’s sanction motions and dismissed a lawsuit because of alleged out of court communications between Mason and his local government.
26. On or about June 25, 2001, Mason filed a notice of appeal in Southern District of Florida Case No. 99-14027-CIV-Graham/Lynch.
27. On June 27, 2001, Mason filed a motion to proceed on appeal in forma pauperis to the district court.
28. This appeal was subsequently docketed by the Eleventh Circuit, U.S. Court of Appeal, hereafter “Eleventh Circuit”, bearing Case No. 01-13664. This appeal has been referred to as “Eleventh Circuit Case No. 01-13664: The Appeal From Hell” located at URL: http://mcneilmason.wordpress.com/eleventh-circuit-case-no-01-13664-the-appeal-from-hell/ .
29. On September 20, 2001, Judge Graham’s Magistrate, Frank Lynch Jr., denied the motion to proceed on appeal in forma pauperis. (D.E. #877). This denial does not state either of the Supreme Court’s two reasons for denying an in forma pauperis motion.
30. During the pendency of the appeal, Case No. 99-14027-CIV-Graham/Lynch, and on September 20, 2001, Judge Graham rendered a pre-filing injunction, sua sponte. (D.E. #878). At page 3, this order expressly states: “THIS CAUSE came before the Court sua sponte.”
31. Judge Graham did not provide Mason with notice and opportunity to respond to this sua sponte issued pre-filing injunction prior to its issuance.
32. This sua sponte issued pre-filing injunction also makes a “finding of bad-faith”. In Chambers v. Nasco, Inc. 501 U.S. 32, 50 (1991), the Supreme Court stated that a finding of bad faith requires due process.
33. It is well established that a pre-filing order issued without notice and opportunity to respond violates due process rights.
34. It is well settled that an order issued in violation of due process is void. Moreover, it is equally well settled that a void order has no legal effect.
35. Judge Graham has resisted numerous requests to provide Mason with due process after the issuance of the pre-filing injunction.
36. To date, the Eleventh Circuit has declined to review this sua sponte issue pre-filing injunction for validity on multiple occasions.
37. On September 26, 2001, Mason submitted a motion to proceed on appeal in forma pauperis to the Eleventh Circuit.
38. On December 12, 2001, the Eleventh Circuit denied Mason’s motion to proceed on appeal in forma pauperis while stating in a mere conclusory fashion “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 Moreland v. Wharton. 899 F.2d 1168,1170 11th Cir. 1990) (holding that right to proceed is not absolute. but rather is left to the sound of the court).”
39. In Adkins v. E. I. DuPont de Nemours & Co., Inc., 335 U.S. 331 (1948), the Supreme Court stated; “We think an affidavit is sufficient which states that one cannot because of his poverty "pay or give security for the costs . . . and still be able to provide" himself and dependents "with the necessities of life."”
40. The Eleventh Circuit’s own published case, Martinez v. Kristi Kleaners Inc., 364 F.3d 1305 (11th Cir. 2004) states: “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." (internal citations omitted). 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.”
41. On December 15, 2001, Mason filed a motion for reconsideration and clarification begging the court to state the basis for its conclusion that the appellant had been untruthful.
42. On February 7, 2002, the Eleventh Circuit denied the motion and refused to provide an explanation while stating only: Appellant has filed a "motion for reconsideration and clarification," which is construed as a motion for reconsideration of this Court's order dated December 12, 2001, denying leave to proceed on appeal in forma pauperis. Upon reconsideration, appellant's motion for leave to proceed on appeal in forma pauperis is DENIED.
43. On or about February 2002, Mason filed an Initial Brief in the pending direct appeal, Case No, 01-13664. On March 6, 2002, Judge Susan Black struck Mason’s brief for making argument against the sua sponte issued pre-filing injunction of September 2001, because she claimed it was “beyond the scope of appeal”. As a result, Mason was required to go through the expense of filing all new briefs.
44. In March 2002, when the Appellees filed their brief they argued for the same sua sponte issued pre-filing injunction of September 20, 2001. Mason moved to strike the Appellees brief for the same reason that the Eleventh Circuit struck his brief. The Eleventh Circuit granted the motion, but declined to make the Appellees file new briefs. The Eleventh Circuit claimed it would not consider the sua sponte issued pre-filing injunction of September 20, 2001.
45. In October 16, 2002, when the Eleventh Circuit rendered their “DO NOT PUBLISH” opinion they included the sua sponte issued pre-filing injunction of September 20, 2001 in order to justify a Rule 41(b), Fed.R.Civ.P. dismissal that they had stricken Mason’s brief for arguing because it was “beyond the scope of appeal”. Moreover, the Eleventh Circuit affirmed Judge Graham even though Judge Graham failed to make the required finding that lesser sanctions would not suffice. Judge Graham’s colleague, Judge Ursula Ungaro-Benages, who presumably was not facing the allegations of misconduct, mismanagement, and abuse that Judge Graham was facing, was reversed on appeal in World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995), a published opinion, for not making the explicit finding that lesser sanctions would not suffice.
46. In its opinion of October 16, 2002, though admittedly briefed, the Eleventh Circuit declined to review the issue of whether Judge Graham abused his discretion by not disqualifying. The opinion refuses to address the allegations of misconduct and mismanagement directed at Judge Graham. The appellate review consisted solely of the following: “Mason also raises issues that relate to non-sanction matters, e.g., … the denial of his motions to disqualify the district court and magistrate judges,”
47. In this opinion, though admittedly briefed, the Eleventh Circuit declined to review the validity of the very injunctions that it claimed Mason violated and justified a Rule 41(b) dismissal. Mason sought review of the two injunctions referenced above on the appeal, (D. E. #201) and (D. E. #246). The total review of this issue consisted of 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.”
48. On November 6, 2002, Mason filed a motion for rehearing specifically enumerating items the Court failed to consider in its unpublished opinion.
49. On November 4, 2002, Mason filed a Motion for Publication of Opinion.
50. On January 31, 2003, the Eleventh Circuit simply denied the motion and took no further action. "The petition(s) for rehearing filed by appellant, Marcellus M. Mason, Jr., is DENIED." This order was signed by Judge Stanley F. Birch.
51. On 04/10/2003, the Eleventh Circuit denied to the Motion for Publication of Opinion and declined to share its jurisprudence with the American public. Moreover, the Eleventh Circuit went on to assert that: “The court wont entertain any motion for reconsideration of this order.”
52. This opinion, Case No. 01-13664, is not now, nor has never been released to the Internet for publication and consumption.
ELEVENTH CIRCUIT CASE NO. 01-15754 MANDAMUS PETITION
53. On or about September 29, 2001, Mason filed a petition for mandamus with the Eleventh Circuit that was docketed on October 2, 2001 with Case No. 01-15754. This mandamus petition excoriates Judge Graham and seeks appellate review of Judge Graham’s failure to disqualify. This mandamus petition also sought appellate review of the sua sponte issued pre-filing injunction of September 20, 2001.
54. The Eleventh Circuit refused to make the Respondents or Judge Graham file briefs opposing the petition for mandamus.
55. On or about December 5, 2001, the Eleventh Circuit rendered a one page, one sentence, unpublished “Opinion” on the petition, Case No. 01-15754. This opinion stated only: “The "petition for writ of mandamus and petition for writ of prohibition" is DENIED.” This was an unpublished opinion.
56. The Eleventh Circuit did not treat the petition for mandamus as a notice of appeal that is required under the Supreme Court’s case Smith v. Barry et al., 502 U.S. 244 (1991). The Eleventh did not require anyone to file a responsive brief to the mandamus petition.
57. On December 18, 2001, Mason filed a motion for clarification demanding to know the basis under which the opinion was made.
58. On January 25, 2002, the Eleventh Circuit denied a motion for clarification.
DC Case No. 99-14027, ELEVENTH CIRCUIT CASE NO. 02-10868
59. On July 23, 2001, Defendant Highlands County Board of County Commissioners and Heartland Library submitted a motion for attorney’s fees. (D.E. #800).
60. On July 31, 2001, Mason filed a brief opposing the motion for attorney’s fees.
61. On October 4, 2001, Magistrate Frank J. Lynch rendered a REPORT AND RECOMMENDATIONS, “R&R”, recommending attorney’s fees of $200,000 be awarded against Mason. In his “R&R”, the Magistrate acknowledges that the Supreme Court’s case Christiansburg Garment Company v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978) is controlling with respect to the award of attorney’s fees. In this R&R, the Magistrate expressly states that he was not going to comply with Christiansburg: “This takes the case beyond the analysis of frivolity.” He then goes on to say that he was going to use the sua sponte issued pre-filing injunction to justify his decision to award $200,000 in attorney’s fees.
62. The R&R does no analysis of the claims to see if a prima facie case had been established. The Magistrate, in a mere conclusory fashion, simply asserts; “The Plaintiff has failed to make out a prima facie case.” Additionally, the Magistrate also fails to mention that the Plaintiff’s claims had survived a barrage of attacks and motions to dismiss.
63. Mason vehemently objected to the Report and Recommendation. (D.E. #893). Mason’s objections excoriates the Magistrate, Frank Lynch, Jr. and Judge Donald L. Graham for reckless behavior. Judge Graham withheld Mason’s objections to the R&R in his office until he felt like having it filed.
64. Judge Graham accepted the Magistrate’s R&R without addressing any of the objections Mason made. Judge Graham’s order adopting the R&R was docketed at (D.E. #892) which is a lower number than Mason’s objections.
65. On April 24, 2002, Mason filed a motion to proceed in forma pauperis with the Eleventh Circuit to contest the award of $200,000 in legal fees.
66. On August 23, 2002, the Eleventh Circuit denied Mason’s motion to proceed on appeal in forma pauperis by stating only the following mere conclusory statement: “Appellant's Motion for leave to proceed on appeal in forma pauperis is DENIED because the appeal is frivolous. See Pace v. Evans, 709 F.2d 1428 (11th Cir. 1983).”
67. In Neitzke v. Williams, 490 U.S. 319, 326-28 (1989) and Denton v. Hernandez, 504 U.S. 25, 33 (1992), the United States Supreme Court has said that in forma pauperis motion could only be denied if the allegation of poverty is untrue or the action is frivolous. “[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them. An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff's allegations unlikely.” Denton at 504 U.S. 25, 26.
68. On August 29, 2002, Mason filed a Motion for Clarification seeking to know the basis for which the Court concluded it would be frivolous to file an appeal opposing an attorney’s fees award of $200,000.
69. On August 30, 2002, Mason attempted to consolidate the appeal with an already pending appeal, Case No. 01-13364 that underlied the motion for attorneys’ fees .
70. On September 19, 2002, the Eleventh Circuit denied Mason’s motion to consolidate appeals.
71. On October 17, 2002, the Eleventh Circuit denied Mason’s Motion for Clarification seeking to know the factual basis for the court’s mere conclusory assertion that filing an appeal of a $200,000 attorney’s fees award would be frivolous.
CRIMINAL CONTEMPT, CASE NO. 02-14020
72. On December 3, 2002, the U.S. Attorney, Marcos Daniel Jimenez, S.D. Fla. and AUSA Robert Waters, filed an information for criminal contempt based solely on the previously mentioned sua sponte issued pre-filing injunction of September 20, 2001. Specifically, in pertinent part, the information states that Marcellus Mason: “did willfully and knowingly disobey and resist a lawful order of a Court of the United States , that is, the order issued by the Honorable Donald L . Graham , United States District Judge, on September 20, 2001,..” (D.E. #6). This whole matter has been referred to as “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life” at URL: http://mcneilmason.wordpress.com/eleventh-circuit-sits-idly-by-while-a-clearly-void-sua-sponte-issued-pre-filing-injunction-wreaks-havoc-on-a-mans-life/ .
73. On the date the information was filed, the U.S. Attorney knew or or should have known that the sua sponte issued pre-filing injunction of September 20, 2001 was issued without the required due process.
74. The information claimed that 18 U.S.C. §401(3) was violated. 18 U.S.C. §401(3) expressly requires that a “valid” order be violated.
75. A void order is not a “valid” order by definition. The U.S. attorney has a duty to insure that the jurisdiction of the court is invoked with a valid order.
76. The U.S, Department of Justice is not the personal attorney of Judge Graham and has no legal obligation to prosecute a contempt case merely because a judge wishes it to be so. The USDOJ could have and should have declined to prosecute this matter.
77. On December 3, 2002,the U.S. Attorney, Marcos Daniel Jimenez, S.D. Fla. and AUSA Robert Waters, knew that the Eleventh Circuit had refused to review the sua sponte issued pre-filing injunction for validity on at least two occasions because this information was provided to them in a Motion To Dismiss.
78. Even though the sua sponte issued pre-filing injunction of September 20, 2001,was challenged on multiple occasions by Mason, the U.S. Attorney has failed to state why the sua sponte issued pre-filing injunction of September 20, 2001 was not void.
79. The apparent argument of the Government is that a void order maybe bootstrapped by a later filed criminal contempt complaint. It was well settled law on the day the information was filed that a void order is a legal nullity from its inception and as such cannot form the basis of a criminal contempt complaint.
80. As a direct result of the conviction for criminal contempt wrongly visited upon Mason he spent 41 days in jail; 3 years supervised release probation, 5 years sentenced; suffered needless and unwanted compulsory mental health counseling; Mason was needlessly restricted to travel in the Southern District of Florida; Mason’s right of association with known criminals was abridged; Mason’s right to own a gun was abridged; A special condition that precluded Mason’s use of the Internet and working in his chose field of expertise. This is a really pernicious punishment as Mason made his living as a MCSE, Microsoft Certified System Engineer, CNE, Certified Novell Engineer working on computer networking and internetworking systems; This matter has terrorized both Mason and his children.
D.C Case No. 01-14201-CV-Graham, Eleventh Circuit Case No. No. 00-16512
81. Mason filed a lawsuit and sought to proceed in forma pauperis in S.D. Fla. Case No. 01-14201-CV-Graham. Judge Donald L. Graham denied the in forma pauperis motion without stating a reason. Judge Graham was affirmed on appeal by the Eleventh Circuit, U,S Court of Appeal, Case No. 01-16515, in an unpublished opinion because Mason did not pay the filing fee as ordered by Judge Graham. Judge Daniel T.K. Hurley denied in forma pauperis without stating a reason, but was reversed on appeal in Martinez v. Kristi Kleaners, Inc. 364 F.3d 1305 (11th Cir. 2004), a published opinion.
DC Case No. 02-14049, Eleventh Circuit Case No. 02-13418
82. Mason filed a lawsuit against U.S. District Judge Donald L. Graham, U.S. Magistrate Judge Frank Lynch, Jr., and Highlands County Board of County Commissioners in District Court Case No. 02-14049. Mason filed suit against Judge Graham and Judge Lynch for issuing the orders that he alleged violated his first amendment rights in Case No. 99-14027, (D.E. #201), (D.E. #246). Mason argued that Judge Graham and Judge Lynch did not have absolute immunity because: (1)These acts were in complete violation of jurisdiction;(2)These acts were not judicial in nature, but were in fact legislative.
83. Mason filed suit against, Highlands County Board of County Commissioners, for a failure to hire claim. Mason applied for a job as a Budget Technician in November 1999. The EEOC issued the Notice of Right To Sue on March 30, 2000, # 150 A0 1181. See Complaint, (DE #1). The District Court asserted that res judicata was applicable in this case because of a prior case, 99-14027-CIV, an unemployment termination lawsuit. However, as fully set forth above, the prior lawsuit was filed on or about February 4, 1999 for a termination that occurred in November 1998.
84. Mason filed an appeal of the dismissal of a lawsuit against Judge Donald L. Graham and Magistrate Frank Lynch, Jr. in Eleventh Circuit Case No. 13418. In a mere conclusory fashion, the unpublished opinion just asserted that the judges were entitled to absolute immunity. The opinion does not state the acts that judges were given immunity for even though Mason argued in his brief that neither judge was not entitled to immunity because they had not acted in a judicial capacity and had acted in clear violation of jurisdiction.
85. The Eleventh Circuit affirmed the dismissal Of Mason’s failure to hire against Highlands County due to res judicata without mentioning the specifics of the two lawsuits and the dates the causes of actions accrued. There is no mention of when the two causes of action arose in the unpublished opinion. In a published opinion, Pleming v. Universal-Rundle Corp., 142 F.3d 1354 (11th Cir. 1998), U.S. Dist. Judge Marvin H. Shoob, Northern District of Georgia, was reversed on appeal for the same set of facts that Judge Graham was affirmed for. In Pleming, the court held that, where as here, the second cause of action arose after the prior lawsuit is filed, res judicata could not be applied to a cause of action that did not even exist at the time of filing of the prior lawsuit.
Eleventh Circuit Case No. 04-11894
86. On or about February 13, 2004, among other things, Mason filed a petition for mandamus seeking appellate review of whether Judge Graham had improperly failed to disqualify. The Eleventh Circuit was briefed on this matter in the direct appeal, Case No. 01-13664, however as stated above the Eleventh Circuit declined to review this issue. Mason also sought appellate review of the sua sponte issued filing pre-filing injunction of September 20, 2001. This petition was filed in forma pauperis.
87. On May 20, 2004, the Eleventh Circuit rendered an opinion and made material misrepresentations of facts that are clearly contradicted by the record. This opinion states that Mason only stated two reasons to support Judge Graham’s disqualification. The opinion states that Mason sought the disqualification of Judge Graham because: Mason merely asserts that Judge Graham was not impartial because (1) he allowed many of Mason's motions to languish, and (2) would not let Mason file a § 1981 claim, but did let another plaintiff with similar claims do so. These statements are inaccurate for at least two reasons. Firstly, Mason sought Judge Graham’s disqualification because Judge Graham lied by intentionally misrepresenting the law. Mason also sought Judge Graham’s disqualification because Judge Graham never ruled on a motion for a preliminary injunction that had been pending from November 24, 1999 until the case was closed on June 20, 2001. Mason sought Judge Graham’s disqualification because Judge Graham usurped legal authority by stating that it was not clear error for a federal magistrate to render an injunction prohibiting direct communication between Mason and the local government, Highlands County Board of County Commissioners. Mason sought disqualification of Judge Graham because alleged that Judge Graham did not have the legal authority to issue any order with respect to the Florida Public Records Act. Lastly, the Eleventh Circuit misstated a material fact that is directly contradicted by the record with respect to respect to Mason’s attempt at appellate review of the sua sponte issued pre-filing injunction of September 20, 2001.
88. In this same opinion the Eleventh Circuit asserts: “Moreover, Mason had an adequate alternative remedy to mandamus relief in that he could have timely appealed the September 20, 2001 order, but did not do so.” This assertion is clearly contradicted by the record. Firstly, as stated above, Mason filed a petition for mandamus on October 2, 2001, Case No. 01-15754. Secondly, in the direct appeal, Case No. 01-13664, 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, however, when the Eleventh Circuit reached its opinion it then used this same order to Judge Graham.
Eleventh Circuit Case No. 05-10623
89. On March 16, 2005, Case No. 05-10623, the Eleventh Circuit rendered an opinion, and made material misrepresentations of facts that are clearly contradicted by the record. This opinion asserts that Mason had sought appellate review of Judge Graham’s failure to disqualify, however, it fails to state that the Eleventh Circuit declined to review this issue as stated above in Case No. 01-13664 and 01-15754.
90. Secondly in this unpublished opinion, the Eleventh Circuit asserted the following: “Furthermore, Mason appealed the dismissal of his case as well as the district court’s injunction order of September of 20, 2001...” This statement is directly contradicted by the Eleventh Circuit’s prior assertion of May 20, 2004, Case No. 04-11894, which stated: ”Moreover, Mason had an adequate remedy to mandamus relief in that he could have timely appealed the September 20, 2001, but did not do so.” More importantly, this statement is contradicted by the record as the Eleventh Circuit declined to review this issue as stated above in Case No. 01-13664 and 01-15754.
91. The Eleventh Circuit has mocked Mason, the rule of law, U.S. Constitution, the Congress and the United States Supreme Court.
CAUSES OF ACTION
First Cause of Action
Violation
of the Due Process Clause of the
Fifth Amendment of the United States Constitution
Second Cause of Action
Violation Of Sixth Amendment of the United States Constitution
Right to Fair Trial
100. The unpublished opinion denied Mason the opportunity to confront evidence against him.
101. Mason was denied review for validity of the very orders, (D.E. #201)(D.E. #246) that the Eleventh Circuit claimed Mason violated.
102. Mason was denied the opportunity to contest the validity of the sua sponte issued pre-filing injunction of September 20, 2001 that the Eleventh Circuit used against him to affirm Judge Graham.
103. Mason was denied appellate review of whether in fact Judge Graham should have disqualified.
104. Mason’s right to a fair trial was violated because the Eleventh Circuit failed to perform as a neutral arbiter in this matter.
105. Mason was denied meaningful appellate review in this matter.
106. WHEREFORE, and based upon the foregoing, Plaintiff requests that unpublished opinions be declared unconstitutional.
Third Cause of Action
Violation of the Right to Equal Protection in Violation of
the Fifth Amendment of the United States Constitution
107. PLAINTIFF incorporates by reference the allegations in Paragraphs 1-52, 82-85,above.
108. Unpublished opinions unconstitutionally burdens the right for equal protection of all citizens who seek the benefits of the rule of law as set forth in published opinions, by creating an underground body of law that does not comport to the rule of law as set forth in published opinions.
109. WHEREFORE, and based upon the foregoing, Plaintiff requests that unpublished opinions be declared unconstitutional.
Fourth Cause of Action
Violation
of the Due Process Clause of the
Fifth Amendment of the United States Constitution
110. PLAINTIFF incorporates by reference the allegations in Paragraphs 53-58 above.
111. The unpublished opinion is in violation of the Due Process Clause of the Fifth Amendment because it is arbitrary and capricious, being unpublished, and thus provides no way for ordinary people or legal scholars to conclusively determine what really occurred in appeal. Pertinent issues are not discussed. Material facts are omitted. The law applied to the case has nothing to do with the facts of the instant case. Unpublished opinions are virtually secret because no one knows of its existence except the parties. This appeal was never released to the Internet for public consumption and scrutiny.
112. An unpublished opinion is void for vagueness on its face, because people are denied access to its content. Because the unpublished opinion omits material facts and is results oriented, people have no notice as to what is required to comply with it. Similarly, such a scheme vests standardless discretion in the hands of its enforcers, because the legal authority for the scheme is virtually secret.
113. Federal Judges have unfettered control over the facts that are printed in their opinions and unfettered discretion as to whether the opinion is published. Under current law, there is no right to have opinions published.
114. Mason was denied the opportunity to contest the validity of the sua sponte issued pre-filing injunction of September 20, 2001 that the Eleventh Circuit used against him to affirm Judge Graham.
115. Mason’s due process rights were violated because the Eleventh Circuit failed to perform as a neutral arbiter in this matter.
116. WHEREFORE, and based upon the foregoing, Plaintiff requests that unpublished opinions be declared unconstitutional.
Fifth Cause of Action
Violation Of Sixth Amendment of the United States Constitution
Right to Fair Trial
117. PLAINTIFF incorporates by reference the allegations in Paragraphs 53-58, above.
118. The unpublished opinion denied Mason the opportunity to confront evidence against him.
119. Mason was denied review for validity of the very orders, (D.E. #201)(D.E. #246) that the Eleventh Circuit claimed Mason violated.
120. Mason was denied the opportunity to contest the validity of the sua sponte issued pre-filing injunction of September 20, 2001 that the Eleventh Circuit used against him to affirm Judge Graham.
121. Mason was denied appellate review of whether in fact Judge Graham should have disqualified.
122. Mason’s right to a fair trial was violated because the Eleventh Circuit failed to perform as a neutral arbiter in this matter. The Eleventh Circuit failed to require either the respondents or Judge Graham to file briefs.
123. The Eleventh Circuit failed to construe the Petition for Mandamus as a notice of appeal as required by the Supreme Court.
124. Mason was denied meaningful appellate review in this matter.
125. WHEREFORE, and based upon the foregoing, Plaintiff requests that unpublished opinions be declared unconstitutional.
Sixth Cause of Action
Violation of the Right to Equal Protection in Violation of
the Fifth Amendment of the United States Constitution
126. PLAINTIFF incorporates by reference the allegations in Paragraphs 53-58,above.
127. Unpublished opinions unconstitutionally burdens the right for equal protection of all citizens who seek the benefits of the rule of law as set forth in published opinions, by creating an underground body of law that does not comport to the rule of law as set forth in published opinions.
128. WHEREFORE, and based upon the foregoing, Plaintiff requests that unpublished opinions be declared unconstitutional.
Seventh Cause of Action
Violation Of Fifth Amendment of the United States Constitution
Due Process Clause
129. PLAINTIFF incorporates by reference the allegations in Paragraphs 30-36, above.
130. The sua sponte issued pre-filing injunction of September 20, 2001 violated Mason’s due process rights to access to the courts because the order without notice and opportunity to respond.
131. The sua sponte issued pre-filing injunction of September 20, 2001 further violated Mason’s due process rights to access because the order made a finding of bad-faith without notice and opportunity to respond.
132. WHEREFORE, and based upon the foregoing Mason requests that the sua sponte issued pre-filing injunction of September 20, 2001 be declared inconsistent with due process, and hence void.
Eighth Cause of Action
Violation Of Constitutional Right Of Access to the Courts
133. PLAINTIFF incorporates by reference the allegations in Paragraphs 59-71, above.
134. The Eleventh Circuit arbitrarily and capriciously denied an application to proceed on appeal in forma pauperis in violation of the Supreme Court’s standard by making a mere conclusory allegation that Mason has been untruthful in his application while steadfastly refusing to offer a scintilla of proof.
135. Wherefore, and based upon the foregoing, Plaintiff’s requests that this court declare that IFP denial was not lawful.
Ninth Cause of Action
Violation Of Fifth Amendment of the United States Constitution
Due Process Clause
136. PLAINTIFF incorporates by reference the allegations in Paragraphs 59-64, above.
137. Mason’s right of due process was violated when Judge Graham and his Magistrate expressly acknowledged that they were bound by Christiansburg Garment Company v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978), but chose to ignore it and use the sua sponte issued pre-filing injunction of September 20, 2001 against Mason. As stated above, Mason has was denied the opportunity due process with respect to this order.
138. WHEREFORE, and based upon the foregoing, Plaintiff requests that the judgment of attorneys’ fees in the amount of $200,000 be vacated because it relies upon a sua sponte issued pre-filing injunction issued in violation of due process.
Tenth Cause of Action
Malicious Prosecution
139. PLAINTIFF incorporates by reference the allegations in Paragraphs 72-80, above.
140. As fully set forth above, PLAINTIFF asserts a claim of malicious prosecution against the Defendant, MICHAEL MUKASEY because the U.S. Attorney, Marcos Daniel Jimenez, S.D. Fla. and AUSA Robert Waters instituted a criminal action, criminal contempt, against the Plaintiff in this matter. This matter will terminate successfully when this court makes the declaration as requested that the sua sponte issued pre-filing injunction of September 20, 2001 is void because it is was issued inconsistent with due process. There was no probable cause in this matter because the Government knew or should have known that a criminal contempt complaint can not be based upon a void order as the statute specifically calls for a valid order. There was actual malice and malice per se as the government proceeded with an action with full knowledge that it lacked a substantial legal basis. As fully set forth above, Plaintiff has suffered greatly at the powerful hands of the United States Government.
141. Wherefore, Plaintiff, Marcellus M. Mason, Jr., demands judgment against MICHAEL MUKASEY for compensatory damages, punitive damages, interest, attorneys fees, costs and such other relief as this deems appropriate. MASON further demands trial by jury.
Eleventh Cause of Action
Abuse of Process
142. PLAINTIFF incorporates by reference the allegations in Paragraphs 72-80, above.
143. The U.S. Government invoked the jurisdiction of the court and initiated a criminal contempt complaint for some purpose other than a lawful purpose. It is a per se abuse of process to invoke the criminal contempt procedure based upon an order that was known to be void and without legal effect.
144. While the process was pending, Robert Waters, in three way conversation offered to drop the criminal contempt complaint, if Mason would agree to dismiss the lawsuit filed against Judge Graham.
145. Additionally, after the criminal contempt procedure was invoked the Government used it to intimidate Mason so as to stop Mason from criticizing Judge Graham on the Internet and email correspondence.
146. The criminal contempt procedure was used to control Mason as it had been placed in suspense for several months with no end date.
147. Wherefore, Plaintiff, Marcellus M. Mason, Jr., demands judgment against MICHAEL MUKASEY for compensatory damages, punitive damages, interest, attorneys fees, costs and such other relief as this deems appropriate. MASON further demands trial by jury.
Twelfth Cause of Action
Breach of Contract
148. PLAINTIFF incorporates by reference the allegations in Paragraphs 26-52, above.
149. In consideration for receiving Mason’s filing fees, Defendant, Thomas K. Kahn, promised to see that Mason got meaningful appellate review in Case No. 01-13664. As fully set forth above, Mason did not receive meaningful appellate review as required by law. It is inequitable that Mason should have to pay for the type of jurisprudence that is described in this matter.
150. Mason demands specific performance of the contract that THOMAS K. KAHN made to Mason that he would receive meaningful appellate review. Mason demands meaningful appellate review forthwith. In the alternative, Mason demands:
151. Plaintiff, Marcellus M. Mason, Jr., demands judgment against THOMAS K. KAHN, for a refund of filing fees damages, interest, attorneys fees, costs and such other relief as this deems appropriate. MASON further demands trial by jury.
Thirteenth Cause of Action
Breach of Contract
152. PLAINTIFF incorporates by reference the allegations in Paragraphs 53-58, above.
153. In consideration for receiving Mason’s filing fees, Defendant, Thomas K. Kahn, promised to see that Mason got meaningful appellate review in Case No. 01-15754.. As fully set forth above, Mason did not receive meaningful appellate review as required by law. It is inequitable that Mason should have to pay for the type of jurisprudence that is described in this matter.
154. Mason demands specific performance of the contract that THOMAS K. KAHN made to Mason that he would receive meaningful appellate review. Mason demands meaningful appellate review forth with. In the alternative, Mason demands:
155. Plaintiff, Marcellus M. Mason, Jr., demands judgment against THOMAS K. KAHN, for a refund of filing fees damages, interest, attorneys fees, costs and such other relief as this deems appropriate. MASON further demands trial by jury.
Fourteenth Cause of Action
Breach of Contract
156. PLAINTIFF incorporates by reference the allegations in Paragraphs 82-85, above.
157. In consideration for receiving Mason’s filing fees, Defendant, Thomas K. Kahn, promised to see that Mason got meaningful appellate review in Case No. 02-13418. As fully set forth above, Mason did not receive meaningful appellate review as required by law. It is inequitable that Mason should have to pay for the type of jurisprudence that is described in this matter.
158. Mason demands specific performance of the contract that THOMAS K. KAHN made to Mason that he would receive meaningful appellate review. Mason demands meaningful appellate review forthwith. In the alternative, Mason demands:
159. Plaintiff, Marcellus M. Mason, Jr., demands judgment against THOMAS K. KAHN, for a refund of filing fees damages, interest, attorneys fees, costs and such other relief as this deems appropriate. MASON further demands trial by jury.
Additional Relief Sought
160. Declare that the orders in issued in Case No. 99-14027-CIV, (D.E. #201), (D.E. #246) are unconstitutional.
161. Declare that the stated reasons for denials of IFP, in forma pauperis are not supported by the facts or applicable law.
162. Award Plaintiff costs and fees pursuant to applicable statutes.
163. Grant Plaintiff such other and further relief as the Court deems just and proper.
Dated: June 12, 2008
Marcellus Mason, Plaintiff
214 Atterberry Drive
Sebring, FL 33870
Copies of this Complaint are being made available on the Interenet at:
http://mmason.freeshell.org/MyBriefs/Us_complaint.doc , Microsoft word format;
http://mmason.freeshell.org/MyBriefs/Us_complaint.htm, html format.
