In yet another unpublished decision, the
Eleventh
Circuit ruled the following:
1.I
had no right to expect the district judge to rule on a motion for a
preliminary injunction even it had been pending for more than two 1 ½
years or
from November 24, 1999 until the date of this petition, March 8, 2001.
2.A
magistrate can issue an injunction so long as the Magistrate does not
call the order an injunction.
3.A
federal court can take away your right to communicate with the
Government directly, and you can appeal this AFTER the case is
dismissed or
closed.
4.A
federal magistrate judge can overrule rights created under the
Florida Public Records Act.
All
this may seem incredible, but it is
true.
United [MMMJ1]States Court of
Appeals for the Eleventh Circuit.
CERTICATE OF
INTERESTED
PERSONS AND CORPORATE DISLCLOSURE STATEMENT..................................
1
QUESTIONS
PRESENTED FOR REVIEW................................................................................................................................
1
STATEMENT OF CASE.................................................................................................................................................................
3
PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTIVE RELIEF..................................................................
3
DEFENDANTS
MOTION FOR PRELIMINARY INJUNCTIVE RELIEF...............................................................
6
SUMMARY OF
THE ARGUMENT...............................................................................................................................................
9
PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTIVE RELIEF.....................................................................
11
Standard
of Review............................................................................................................................................................
11
DEFENDANTS
MOTION FOR PRELIMINARY INJUNCTIVE RELIEF...................................................................
13
Standard
of Review............................................................................................................................................................
13
INADEQUACY OF OTHER RELIEF..........................................................................................................................................
19
CERTIFICATE
OF COMPLIANCE...........................................................................................................................................
22
CERTIFICATE OF SERVICE......................................................................................................................................................
22
Pursuant to
Eleventh Circuit Rule 26.1, APPELLANT hereby
certifies the following list of individuals and entities are known to
me to
have an interest in the outcome of this particular case:
Marcellus
M. Mason, Jr. , petitioner
Highlands
County Board of County Commissioners, respondent
Heartland
Library Cooperative, respondent
Hardee
County Board of County Commissioners, respondent
Desoto
County Board of County Commissioners, respondent
Okeechobee
County Board of County Commissioners, respondent
Maria
N. Sorolis, Esq., attorney, respondent
Brian
Koji, Esq., attorney, respondent
J. Ross MacBeth
Public Risk
Management,
insurance provider, respondent
Is it an abuse
of discretion or a dereliction of duty for a federal Magistrate Judge
or a
District Judge to refuse to rule on a motion for a preliminary
injunction or
even to give an explanation to the plaintiff why the court refuses to
rule on
the motion?
Does a federal Magistrate Judge have the
legal authority to issue “a pretrial discovery issue and
not an
injunction issue per se”” that bars the plaintiff, a non-lawyer,
from
communicating directly with the government defendants?
Does a federal Magistrate Judge have the
legal authority to issue “a pretrial discovery issue and
not an
injunction issue per se” that tells the plaintiff how the plaintiff
he may
get documents under the Florida Public Records Act?
Petitioner brought suit in the
United States District Court pursuant to 28 U.S.C. §§ 1331,1343.Petitioner,
hereinafter, “Mason”, alleges
violations of Title VII of the Civil Rights Act, violations of 42
U.S.C. §§
1981, 1983,1985, and 1986.Mason’s claims
centered around employment
discrimination and discrimination in the use of a public facility.Mason’s pendant state laws claims for
defamation, conspiracy to defame, intentional emotional distress,
Florida
Whistle-Blowers Act, and the Florida Civil Rights which were brought
pursuant
to 28 U.S.C. § 1367.Mason is a
resident of Sebring, Florida and
Highlands County.Defendants
Highlands
County Board of County Commissioners and Heartland Library Cooperative
principal place of business is in Sebring, Florida.Defendants, Hardee County Board of County Commissioners and
Okeechobee County Board of County Commissioners principal place of
business are
in Wauchula, Florida and Okeechobee Florida, respectively.Mason was an employee of Heartland Library
Cooperative which is a consortium composed of the libraries in
Okeechobee,
Hardee, and Highlands County.Pursuant
to 28 U.S.C. § 1391, venue is proper in
the United States District Court, Southern District of Florida because
that is
where plaintiff’s resides and where the majority of the illegal acts
occurred.Moreover, all of the
defendants in this matter, with the possible exception of Hardee County
Board
of County Commissioners are located in the Southern District of Florida
of the
United States District Court ,.
Petitioner seeks to invoke the
jurisdiction of this court pursuant 28 U.S.C. § 1291,28 U.S.C. §
1651(a), and Fed. R. App. P.
21(a)to
review rulings on final orders. This
petition seeks to reverse the grant of a
preliminary injunction or “a pretrial
discovery issue and not an injunction issue per se “to the
defendants in
this matter which denies the plaintiff the opportunity to speak
directly with
the government defendants in this matter. Secondly, this petition seeks
to
reverse the grant of a preliminary injunction or “a
pretrial discovery issue and not an injunction issue per se “to
the defendants in this matter which requires the plaintiff to make
application
for Florida Public Records through a non-government private attorney
located
approximately 90 miles away from where the records are kept. Finally,
this
petition seeks review of lower court’s refusal to rule on a motion for
preliminary injunction.This Court in Citizens.
Concerned About Children v. School Bd., 193 F.3d 1285 (11th Cir.
1999)stated, “[w]e
acknowledge that an order that does not rule on a
request for injunctive relief, but that has the effect of denying it,
may be
immediately appealable.”
On
11/24/99, Mason filed a Motion for Preliminary Injunctive Relief.(DE #39).On 11/30/99, plaintiff filed an ADDENDUM TO PLAINTIFF'S MOTION
FOR
PRELIMINARY INJUNCTIVE RELIEF.(DE
#60).On 12/6/99, Mason filed a SECOND
ADDENDUM TO PLAINTIFF'SMOTION FOR
PRELIMINARY INJUNCTIVE RELIEF.(DE #
66).On 12/9/99, Mason filed a THIRD
ADDENDUM
TO PLAINTIFF'SMOTION FOR PRELIMINARY
INJUNCTIVE RELIEF.(DE #80).On
12/16/99, Mason filed a PLAINTIFF'S RESPONSE TO DEFENDANTS
RESPONSE TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF.(DE #88).On
12/22/99, the Court entered its ORDER SETTING HEARING [Motion
hearing before Magistrate Frank J.
Lynch set for 9:30 on 2/28/00] on the motion for preliminary
injunction
relief (DE #93).On 2/28/00,
The Court held an Evidentiary Hearing on Plaintiff’s
Motions for Preliminary Injunctive Relief.The minutes of this Evidentiary Hearing were recorded by the
Court
Reporter.Plaintiff was the only
witness to testify at this Evidentiary Hearing.Defendants
did not testify or offer any witnesses in their
behalf.Plaintiff offered exhibits
as
evidence to the Evidentiary Hearing held on February 28, 2000.(DE # 165.On 3/6/00, Mason filed his PLAINTIFF'S SUPPLEMENT TO EVIDENTIARY
HEARING
FOR PRELIMINARY INJUNCTIVE RELIEF OR PLAINTIFF’S MOTION TO CONTINUE
EVIDENTIARY
HEARING.(DE #164). On 3/13/00, Mason
filed his PLAINTIFF’S SUPPLEMENTAL EXHIBITS TO MOTION FOR PRELIMINARY
INJUNCTIVE RELIEF AND PLAINTIFF’S NEWLY ACQUIRED EVIDENCE.(DE #171). Plaintiff filed his RESPONSE IN
OPPOSITION TO HEARTLAND LIBRARY RESPONSE TO PLAINTIFF’S SUPPLEMENTAL
EXHIBITS
TO MOTION FOR PRELIMINARY INJUNCTIVE RELIEF.(DE #183).Plaintiff filed his
PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT AS TO RETALIATION CLAIM UNDER
TITLE
VII OR PLAINTIIFF’S MOTION FOR INJUNCTIVE RELIEFAND MEMORANDUM OF LAWon 6/26/00(DE #211);(DE
#214). This summary judgment motion by plaintiff
included audio tapes of sworn testimony taken at State of Florida
Unemployment
Compensation hearings held between March 9, 1999 and March 2000.Plaintiff filed his PLAINTIFF’S NOTICE OF
FILING OF SWORN TESTIMONY ON AUDIO TAPE on 6/28/00.This notice including audio tapes of sworn testimony taken at
State of Florida Unemployment Compensation hearings held between March
9, 1999
and March 2000..Plaintiff used all
audiotapes in support of various motions that were pending before the
Court.Plaintiff submitted to the
Court his PLAINTIFF’S MOTION FOR EXPEDITED RULING ON PLAINTIFF’S PRIOR
REQUEST
FOR PRELIMINARY INJUCTION[1]
on 8/23/00.(DE #288).In order to augment his PLAINTIFF’S MOTION
FOR EXPEDITED RULING ON PLAINTIFF’S PRIOR REQUEST FOR PRELIMINARY
INJUCTION, plaintiff filed his NOTICE OF FILING
AFFIDAVIT OF NINA ST GERMAIN IN SUPPORT OF PLAINTIFF’S MOTION FOR
EXPEDITED
RULING ON PLAINTIFF’S PRIOR REQUEST FOR PRELIMINARY INJUCTION on 9/1/00.(DE #295).The
Court rendered its Omnibus Order denying plaintiff’s motion
for expedited ruling on plaintiff’s prior request for preliminary
injunctive
relief on 9/6/00.(DE #300).Plaintiff submitted a PLAINTIFF’S MOTION TO
DECLARE PLAINTIFF’S MOTION FOR EXPEDITED RULING ON PLAINTIFF’S PRIOR
REQUEST
FOR PRELIMINARY INJUCTION on 9/7/00.(DE #305).Plaintiff sought to
have his motion for a preliminary injunction which had been pending
since
11/24/99 declared an emergency within the meaning of Local Rule 7.1.E.Defendants submitted a brief in opposition
to plaintiff’s request for an emergency ruling on 9/8/00.(DE #309).The Court had already entered its Order denying plaintiff’s
request for
an emergency ruling on his motion for a preliminary injunction on
9/7/00,
before the defendants’ responded to plaintiff’s motion on 9/8/00.(DE #306).Mason submitted his APPEAL TO DISTRICT JUDGE OF MAGISTRATE’S
ORDER
DENYING PLAINTIFF’S MOTION FOR EXPEDITED RULING ON PLAINTIFF’S PRIOR
REQUEST
FOR PRELIMINARY INJUCTION on 9/21/00.(DE #333). The Court rendered its Order denying plaintiff’s
appeal for a
preliminary injunction on 11/2/00.(DE
#410). On 2/26/01, plaintiff submitted a motion for clarification with
respect
to the status of his pending motion for a preliminary injunction.(DE #485). Plaintiff also submitted a
PLAINTIFF'S STATEMENT OF UNDISPUTED AND UNCONTESTED MATERIAL FACTS IN
SUPPORT
OF PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION on 3/1/01.(DE #507).Plaintiff’s motion for clarification was denied without
explanation on
2-27-01. (DE #493).
DEFENDANTS
MOTION FOR PRELIMINARY INJUNCTIVE RELIEF
On
6/15/00, Defendants filed their DEFENDANTS’ MOTION FOR A PRELIMINARY
INJUNCTION
(DE #199).Defendants’ in their motion
sought to have plaintiff, a layman and not an attorney, barred from
communicating directly with the government officials in this matter.
Plaintiff
filed his PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR A PRELIMINARY
INJUNCTION on 6/19/00(DE #200).On the very same day that plaintiff filed
his response to DEFENDANTS’ MOTION FOR A PRELIMINARY INJUNCTION,
6/19/00, The
Court and specifically the Magistrate Judge rendered his ORDER granting
Defendants’ motion for preliminary injunction.(DE #201).The Court referred to
its Order granting Defendants’ motion for preliminary injunction as a
“[p]retrial issue and not an injunction per se”.The
Court issued this order without authoring a memorandum of law
citing legal authority for issuing its “pretrial issue”.The Court issued its Order granting
DEFENDANTS’ MOTION FOR A PRELIMINARY INJUNCTION without allowing the
plaintiff
the benefit of an evidentiary hearing.On
7/12/00, Defendants filed a DEFENANTS’ MOTION FOR LEAVE TO FILE
DEFENDANTS’ RENEWED
MOTION FOR MOTION FOR PRELIMINARY INJUNCTION and their DEFENDANTS’
RENEWED
MOTION FOR MOTION FOR PRELIMINARY INJUNCTION.(DE #231).Defendants sought to
have Mason barred from communicating with the defendants regarding any
lawsuit
the plaintiff had pending against the defendants.Defendants
also sought to have plaintiff barred from
communicating with the defendants regarding lawsuits against the
defendants for
which plaintiff is or was not a party.Additionally, defendants sought to have plaintiff go through
their
attorneys to make Public Records Request under Florida Law.Defendants cited no legal authority in
neither of their motions for preliminary injunctions. On 7/17/00,
Defendants
filed a Motion For Contempt and Sanctions.(DE #234). Defendants sought to have sanctions imposed upon the
plaintiff for what they allege to have been a violation of the Court’s
order
denying plaintiff, a non-lawyer, from communicating with government
officials.Plaintiff filed his
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR CONTEMPT AND SANCTIONS
on
7/20/00.(DE #239).The
Court issued its Order granting
defendants’ renewed motion for preliminary injunction on 7/25/00 and
denying
defendants’ motions for sanctions.(DE
#246).In issuing its Order granting
defendants’
renewed motion for preliminary injunction, The Court did not write a
memorandum
of law with appropriate legal authority for granting defendants’
renewed motion
for preliminary injunction.There was
no evidentiary hearing held prior to the issuance of the defendants’
renewed
motion for preliminary injunction. Plaintiff submitted to the Court his
PLAINTIFF’S MOTION TO RESCIND ORDER ON DEFENDANTS’ RENEWED MOTION FOR
PRELIMINARY INJUNCTION FOR PRELIMINARY INJUNCTION (MOTION FILED JULY
12, 2000)
AND DEFENDANTS’ MOTION FOR CONTEMPT AND SANCTIONS (DE #234)on 8/7/00.(DE #264). The
Court issued its Order denying Plaintiff’s motion to rescind order on
Defendants' renewed motion for preliminary injunction for preliminary
injunction (motion filed July 12, 2000) and Defendants' motion for
contempt and
sanctions on 8/15/00.(DE #279).The Court issued its Order denying
Plaintiff’s motion to rescind its order granting Defendants' renewed
motion for
preliminary injunction on 8/15/00 despite the fact that PLAINTIFF’S
REPLY TO
DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO RESCIND ORDER ON
DEFENDANTS’
RENEWED MOTION FOR PRELIMINARY INJUNCTION MOTION FILED ON JULY 12, 2000
AND
DEFENANTS’ MOTION FOR CONTEMPT AND SANCTIONS, which was timely filed,
was not
filed until 8/16/00.(DE #284). On
9/25/00, Mason filed his APPEAL TO DISTRICT JUDGE GRAHAM OF MAGISTRATE
JUDGE’S
ORDER (DE #264) DENIYING PLAINTIFF’S MOTION TO RESCIND ORDER ON
DEFENDANTS’
RENEWED MOTION FOR PRELIMINARY INJUNCTION FOR PRELIMINARY INJUNCTION
(MOTION
FILED JULY 12, 2000) AND DEFENDANTS’ MOTION FOR CONTEMPT AND SANCTIONS
(DE
#234)See (DE #334). Mason
replied with his PLAINTIFF’S RESPONSE
DEFENDANTS’ RESPONSE TO APPEAL TO DISTRICT JUDGE GRAHAM OF MAGISTRATE
JUDGE’S
ORDER (DE #264) DENIYING PLAINTIFF’S MOTION TO RESCIND ORDER ON
DEFENDANTS’
RENEWED MOTION FOR PRELIMINARY INJUNCTION FOR PRELIMINARY INJUNCTION
(MOTION
FILED JULY 12, 2000) AND DEFENDANTS’ MOTION FOR CONTEMPT AND SANCTIONS
(DE
#234) on 10/10/00.(DE #349).On 11/2/00, the Court entered its order
denying plaintiff’s appeal.(DE # 407).
On 3/5/01, plaintiff submitted his PLAINTIFF'S MOTION TO VACATE
PRETRIAL
DISCOVERY ISSUE (DE #201:246) which sought to vacate the court’s [DE
#201:246]
previous orders granting the defendants an injunction.See (DE #515). Plaintiff also sought a
memorandum of law from the court explaining why it thought it had the
legal
authority and jurisdiction to issue these “injunctions”. Plaintiff’s
motion to
vacate was denied by court order on 3/6/01.(DE #524). The court refused,
yet again, to explain to plaintiff where it got the legal authority to
issue
these injunctions.
Plaintiff/Petitioner,
Marcellus M. Mason, Jr. , hereinafter “Mason”
filed his motion for a preliminary injunction with the Court in
November of
1999.The Court held an Evidentiary
hearing on February 28, 2000.Mason was
the only witness to testify.Mason has
offered scores of documents to support his prayer for relief.Mason has even offered sworn testimony on
audio-tape
taken during unemployment compensation hearings.Mason
has offered two motions to the Court for an expedited
hearing and was denied.Mason has not
had a ruling on the merits.The Court
has not authored a memorandum of law which would justify a decision to
either
grant or deny Mason’s motion for preliminary injunctive relief.Plaintiff filed a motion for clarification
on 2/26/01,[DE# 485] specifically requesting ”plaintiff requests that this court
clarify it position with respect to the various motions plaintiff has
submitted
for a preliminary injunction.Additionally, plaintiff respectfully requests that this court
set forth
the reasons for its decision in a memorandum of law setting forth both
its findings
of fact and conclusions of law.” On 2/27/01, [DE #493], the
court
rendered an order denying plaintiff’s motion for clarification.To the extent that the Court has not
specifically authored an opinion that either grants or denies Mason’s
motion
for injunctive relief, the Court is in error and abusing its discretion.
The Court
granted the government defendants in this matter“a
pretrial discovery issue and not an injunction issue per se”, or a
preliminary injunction, or a temporary restraining order.The defendants sought an injunction to
prohibit Marcellus M. Mason, Jr. , a non-lawyer, from contacting or
communicating with the defendants directly in this matter, who are
governmental
officials.There is no legal
prohibition against non-lawyer parties contacting each other directly
even if
one or both are represented by counsel.The court order granting the defendants “a pretrial
discovery issue and not an injunction issue per se” was
unconstitutional in that petitioner’s First Amendment rights were
summarily and
thoughtlessly dismissed. The court
order represented a departure from the essential requirements of law
and
represented an exercise judicial over-reaching.
The
Court granted the government defendants in this matter“a
pretrial discovery issue and not an injunction issue per se”, or a
preliminary injunction, or a temporary restraining order.The defendants sought an injunction to
prohibit Marcellus M. Mason, Jr. , a non-lawyer, from making Florida
Public
Record request tothe defendants
directly in this matter, who are governmental officials.The court issued an order granting the
government defendants “a pretrial
discovery issue and not an injunction issue per se” requiring that
the
plaintiff submit his Florida Public Record requests to private
attorneys
located in Tampa, Florida or about 100 miles away from where the
records are
kept in Sebring, FL.The court order
granting the defendants “a pretrial
discovery issue and not an injunction issue per se” was
unconstitutional in
that petitioner’s First Amendment rights were summarily and
thoughtlessly
dismissed.The federal courts have no
jurisdiction over Florida Public Records requests.The court order represented a departure from the essential
requirements
of law and represented an exercise judicial over-reaching.
I.Is it
an abuse of discretion or a dereliction of duty for a federal
Magistrate Judge
or a District Judge to refuse to rule on a motion for a preliminary
injunction
or even to give an explanation to the plaintiff why the court refuses
to rule
on the motion?
“We review the
district court's denial of injunctive relief under an abuse of
discretion
standard, see Simmons v. Conger, 86 F.3d 1080, 1085 (11th Cir.
1996),
but "we review de novo determinations of law made by the district court
en
route," Teper v. Miller, 82 F.3d 989, 993 (11th Cir. 1996).
This Court in Citizens. Concerned About Children v. School Bd.,
193 F.3d
1285 (11th Cir. 1999)stated, “[w]e
acknowledge that
an order that does not rule on a request for injunctive relief, but
that has the
effect of denying it, may be immediately appealable.”
Plaintiff petitioned the
Court on November 24, 1999 for a preliminary injunction to reinstate
him to his
former position.(DE #39).An evidentiary hearing was held on February
28, 2000.(DE #160).At
this evidentiary hearing, Mason was the
only witness to offer any sworn testimony.Defendants through their counsel opted not to testify and
subject
themselves to cross-examination. In this matter, defendants have no testimony on the record.
Additionally and equally important, defendants offer no documents in
support of
“legitimate” reason to fire Mason. This Court in Baker,Infra, held that a plaintiff was entitled to
presumption of irreparable harm as a matter of law if the
administrative
requirements of the EEOC were complied with.The burden is on the defendants to overcome the presumption of
irreparable harm.Plaintiff was also
entitled to irreparable harm as set forth in his PLAINTIFF’S MOTION FOR
EXPEDITED RULING ON PLAINTIFF’S PRIOR REQUEST FOR PRELIMINARY INJUCTION(DE #288) and APPEAL TO
DISTRICT JUDGE OF MAGISTRATE’S ORDER DENYING PLAINTIFF’S
MOTION FOR EXPEDITED RULING ON PLAINTIFF’S PRIOR REQUEST FOR
PRELIMINARY
INJUCTION. (DE #333)..Moreover,
plaintiff also submitted to the court a statement of uncontested facts
in
support of his motion for a preliminary injunction.(DE # 507).Mason filed a motion for
clarification with
respect to his prior motion for a preliminary injunction on or about
February
26, 2001 [DE #485].The court denied
Mason’s motion for clarification without any explanation [DE #493]. SeeExhibit
A-1.Mason had previously filed two
motions for an expedited ruling [DE #’s 288, 305] which were both
denied
without explanation by the Magistrate Judge. SeeExhibitsA-2
and A-3.Plaintiff also filed an
appeal [DE #333] of the Magistrate’s Judges denial of plaintiff’s
motion for an
expedited ruling with the District Judge which was denied. SeeExhibitA-4.
Plaintiff submitted his motion for a preliminary
injunction on November 24, 1999 which to date has not had a proper
ruling on
the merits.There is absolutely no
reason why the court should not have ruled on this motion based on the
voluminous record.The district court
does not have the authority to deny the plaintiff a legal remedy by
doing
nothing.The court has been unwillingly
and has adamantly refused to state why it won’t rule on the plaintiff’s
motion
for a preliminary injunction.The court
does not need 16 months to rule on a motion for a preliminary
injunction.This a clearly a case of abuse
of discretion
or even arguably dereliction of duty by the district judge and/or
magistrate
judge.
II.Does a
federal Magistrate Judge have
the legal authority to issue “a pretrial
discovery issue and not an injunction issue per se” that bars the
plaintiff, a non-lawyer, from communicating directly with the
government
defendants?
“We review the district
court's denial of
injunctive relief under an abuse of discretion standard, see Simmons v.
Conger,
86 F.3d 1080, 1085 (11th Cir. 1996), but "we review de novo
determinations
of law made by the district court en route," Teper v. Miller,
82
F.3d 989, 993 (11th Cir. 1996). “ Kidder, Peabody & Co.,
Incorp. v.
Brandt, 131 F.3d 1001 (11th Cir. 1997).
Discussion
Defendants made a couple of motions to the
Court for
a preliminary injunction to prohibit Mason, a non-lawyer, from
communicating
directly with the defendants in this action who are government
officials. (DE
#199);(DE #231). Defendants also filed a motion for contempt and
sanctions. (DE
#234).Plaintiff filed his responses to
the foregoing motions. (DE #200);(DE #239).The Court granted both motions for preliminary injunctions [DE
#201);(DE
#246.]SeeExhibitsA-5
and A-6.The court referred to
these orders granting the defendants’ motions as “a
pretrial discovery issue and not an injunction issue per se”.The Court’s Orders granting defendants their
preliminary injunctions represented an essential departure from the
requirements of law and a blatant abuse of judicial authority.In the first instance, defendants’
motion
for a preliminary injunction was granted by a Magistrate Judge.Pursuant to the Magistrates Act or 28
U.S.C. § 636 (b)(1)(A), a preliminary injunction is a dispositive
motion and as such a
Magistrate Judge does not have the legal authority to grant injunctive
relief.A Magistrate Judge may not
issue an otherwise illegal preliminary injunction or temporary
restraining
order for which he has no legal, statutory, or constitutional authority
to
issue and cloak in a mystical device called “a pretrial
discovery issue and not an injunction issue per se” to
make an blatantly illegal act legal.Called.“A pretrial discovery issue and not an
injunction issue per se” appears to a mystical construct of the
Magistrate
Judge as the plaintiff has not been able to find such a remedy in the
voluminous case law he has studied.What plaintiff really finds outrageous is that on appeal to the
District
Judge, the District Judge concludes that the Magistrate Judge’s orders
are not
clearly erroneous.SeeExhibitA-4.Plaintiff submits that for
a judge, any judge to issue an order for which he has no legal
authority to
issue is well past “clearly erroneous”. Secondly, assuming arguendo
that a Magistrate Judge does have the authority to grant
injunctive relief, the Magistrate Judge’ Order granting of preliminary
injunctive relief would represent a departure from the essential
requirements
of law because no evidentiary hearing was conducted.“Federal Rule of Civil
Procedure 65(a) states,"No
preliminary injunction shall be issued without notice to the adverse
party." The United States Supreme Court has noted inpassing that "[t]he notice required by
Rule 65(a) before a preliminary injunction can issue implies a hearing
in which
thedefendant is given a fair opportunity
to oppose the application and to prepare for such opposition.”Baker v. Buckeye Cellulose Corp., 856
F.2d 167 (11th Cir.1988).It is settled
law as espoused
in Baker that the moving party must meet the following four
prong test:
(1) a substantial likelihood that she will
ultimately prevail
on the merits;
(2) that she will suffer irreparable injury
unless
the injunction issues;
(3) that the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause the
opposing party;
and
(4) that if issued, the injunction would not
be adverse to the public interest.
There is no showing that defendants in this
matter
met any of the requirements of the four-prong test for preliminary
injunctive
relief.The Court in its Orders
granting defendants injunctive relief did not author a written opinion
addressing the requirements that must be met for a moving party to
obtain
injunctive relief. (DE # 201);(DE #246). Moreover, what the petitioner
finds
particularly offensive and galling is that where the trial court has
both the
jurisdiction and duty to act on plaintiff’s motion for a preliminary
injunction, it won’t act or explain to the plaintiff why it won’t act.
What the
plaintiff finds more even more yet galling, outrageous, and prejudicial
is that
the Magistrate Judge did not order the governments defendants in this
matter
not to communicate with the plaintiff directly.Lastly,
and more importantly the Court has no legal authority to
order that a party, being a non-lawyer, to not communicate directly
with a
represented party.Moreover, this is
especially true, when the non-lawyer party communicates with a
government
party.Plaintiff is well within his 1st
Amendment rights to petition the government, civil lawsuit
notwithstanding.Mason is not an
attorney and is not subject to the Florida Bar Rules or any other body
governing the professional behavior of attorneys. The comments to
Florida Bar
Rule 4-4.2states the
following:
This rule does
not prohibit communication with a party, or an employee or agent of a
party,
concerning matters outside the representation.For example, the existence of a controversy between a government
agency
and private party, or between 2 organizations, does not prohibit a
lawyer for
either from communicating with nonlawyer representatives of the other
regarding
a separate matter.Also, parties to
a matter may communicate directly with each other and a lawyer
having
independentjustification for
communicating
with the other party to a controversy with a government agency with a
government officials abut the matter. Communications authorized by
law
include, for example, the right of a party to a controversy with a
government
agency to speak with government officials about the matter.
Courts hearing
this type of issue have ruled that a non-lawyer party to a civil suit
may
communicate directly with an adverse party even if represented by
counsel.See U.S. v. Ward, 895
F.Supp. 1000,
(N.D. Ill. 1995); E.E.O.C. v. McDonnell
Douglas Corp., 948 F.Supp. 54; Miano v. AC & R
Advertising, Inc, 148 F.R.D. 68.“Therefore, the Rule does
not prohibit, even after the commencement of an action, a party from
interviewing those individuals with whom the lawyer cannot communicate
under DR
7-103(A).”Tucker v. Norfolk
& Western Ry. Co., 849 F.Supp.1096,1098 (E.D.Pa.1994).Moreover
in at least one case a court has
held that even a lawyer who is merely a party to an action may have ex
parte
communication with a represented adverse party.Specifically,
the Connecticut Supreme Court concluded:
“The grievance panel, the
reviewing committee and the trial court all correctly concluded that
the
plaintiff’s letter was communication between litigants and that the
plaintiff
had a right to make such a communication because he was not
representing a
client.There was no evidence that
suggests that the letter was written by the plaintiff in a
representative
capacity.While the plaintiff’s conduct
may have been less than prudent, it did not violate Rule 4.2”. Pinsky
v.
Statewide Grievance Committee, 578 A.2d 1075,1079 (Conn. 1990).
Petitioner has a First Amendment
right to communicate directly with the government notwithstanding any
litigation he may have pending with the same government agents,
supervisory
employees or not. The First Amendment to the United States Constitution
states:
Congress shall make no
law
respecting an establishment of religion, or prohibiting the free
exercise
thereof; or abridging the freedom of speech, or of the press;
or the
right of the people peaceably to assemble, and to petition the
government
for a redress of grievances.
No where in
the First Amendment does it say that a citizen must address grievances
to a
private attorney.Plaintiff does not
lose his First Amendment rights merely because he filed a lawsuit
against the government
defendants.Plaintiff has every right
of free speech that other citizens not a party to this litigation have.
Neither the
Court nor the government defendants in this action have offered up any
legal
authority prohibiting a non-lawyer from contacting directly a party
that is a
government official directly even though the government party may be
represented by counsel.The preliminary
injunction issued by the Court prohibiting Mason from contacting his
government
directly is violative of Mason’s 1st Amendment rights and as
such
the Order is illegal and void ab initio.The Order granting defendants preliminary
injunctive relief is illegal and must be reversed.Finally, this Court in United States v. Jefferson County,
720 F.2d 1511,n.21 (11th Cir.1983)held:
Obviously,
where a preliminary injunction has been granted based on an error of
law even
as to only one of the four prerequisites, the injunction must fall
because the
movant has not met his burden of persuasion on all four counts.
III.Does a
federal Magistrate Judge have
the legal authority to issue “a pretrial
discovery issue and not an injunction issue per se” that tells the
plaintiff how he may get documents under the Florida Public Records Act?
The Federal
Courts have no jurisdiction under Chapter 119 of the Florida Statutes
to
regulate how Florida Public Records are accessed.Neither
the trial court nor the defendants’ counsel has cited any
legal authority for the proposition that a federal judge has
jurisdiction over
Chapter 119 of the Florida Statutes or the Public Records Act.The trial court issued an order stating that
the petitioner must first make his Florida Public Records request
through the
defendants’ non-government, private, and non-custodial attorneys and
not
directly to the government defendants who have the constitutional and
statutory
authority to produce public records under Florida Law.Moreover, the Magistrate Judge, in
attempting to interpret Florida Law attempts to afford protection to
the
defendants that the Florida Legislature and the Florida Courts won’t do.The Magistrate Judge attempts to substitute
his judgment and wisdom for that of the Florida Legislature and the
Florida
Courts.Specifically, in commenting on
the disadvantage of public agencies in having to comply with Chapter
119 of the
Florida Statutes and having litigation pending against them, the court
in Tober
v. Sanchez, 417 So.2d 1053, 1055 (Fla. App. Dist. 3 1982)succinctly and
aptly stated: “We
would be less than candid if we did not acknowledge that, as the
present case
demonstrates, public agencies are placed at a disadvantage, compared to
private
persons, when faced with potential litigation claims.It is also pertinent to observe that the wisdom of such a
policy resides exclusively within the province of the legislature.”Clearly, the Magistrate Judge is trying
to
impose upon the petitioner constraints in accessing public records
under
Florida Law that the Florida Courts and the Florida Legislature have
decided in
their wisdom not to do.Defendants’
private counsel have no right to be notified before the plaintiff or
anybody
else for that matter makes a public records’ request.The Magistrate Judge has threatened to recommend dismissal of
plaintiff’s
lawsuit for making legal public records request.Such
an act would be unconscionable.The
Magistrate Judge has given the defendants in this matter, who
are desperate to escape liability on anything but the merits, a
dismissal
weapon.Moreover, when the Magistrate
Judge decided that he wanted the responsibility of administering public
record
requests by the plaintiff he did not layout an administration plan and
refused
plaintiff’s motion for clarification raising administrative issues
regarding this
so-called “
pretrial
discovery issue and not an injunction issue per se”.
In this matter, the Magistrate Judge has
violated
the petitioner’s First Amendment rights.The petitioner can not make a direct appeal after final
judgement is
rendered in this highly litigious matter to give him his First
Amendment rights
back after they are in fact already lost.The petitioner can not sue the District Judge or the Magistrate
for the
deprivation of his First Amendment rights.The District Judge and the Magistrate Judge appear to have
absolute
immunity to make bad decisions and apparently to make decisions for
which they
lack legal authority to make in the first instance.Petitioners loss of “free speech” is by definition and law
irreparable
harm. "It is well settled that the
loss of First Amendment freedoms for even minimal periods of time
constitutes
irreparable injury justifying the grant of a preliminary injunction." Cate
v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983).Moreover, as
plaintiff has
filed motion for a preliminary injunction pursuant to Title VII and has
met the
administrative requirements as set forth by this court in Baker v.
Buckeye
Cellulose Corp., 856 F.2d 167 (11th Cir.1988)plaintiff has a
presumption of
irreparable harm.Moreover, plaintiff’s
motion for a preliminary injunction also set forth competent evidence
that
plaintiff was entitled to irreparable harm because of his exercise in
“free
speech” based upon the fact that the defendants retaliated against the
plaintiff in part because the plaintiff “threatened” to expose their
wrongdoing
to the Florida Commission on Ethics.The Florida Commission on Ethics did find that one of
defendants’
supervisory agents was in fact guilty of an ethics violation.Plaintiff filed the probable cause decision
rendered by the Florida Commission on Ethics in support of his claim
for
irreparable harm under the Florida Whistle-Blower statute with the
court.
WHEREFORE, and
based upon the foregoing. Mason requests that this Court remand this
matter to
the trial court directing it do the following:
Plaintiff
requests that this appellate court issued the following orders:
1.Issue an
Order
compelling the District Judge to do his constitutional duty and render
a
decision supported by findings of fact and conclusions of law on
petitioner’s
prior request for a preliminary injunction. Moreover, plaintiff would
ask that
this court issue an order to show cause to the District Judge, asking
why
plaintiff’s motion for a preliminary injunction should not be granted.
2.Issue an
Order
vacating the order granting the Defendants a “pretrial discovery issue and not an
injunction issue per
se
“ or the preliminary injunction requiring the plaintiff/petitioner, a
non-lawyer, to not communicate with the defendant government officials
directly.Plaintiff would also ask that
the court issue an order stating that the plaintiff may speak or to
communicate
with any government official directly in a lawful manner at any time
the
petitioner so desires.
4.Issue an
Order
vacating the order granting the Defendants a “pretrial discovery issue and not an
injunction issue per
se
“ or the preliminary injunction requiring the plaintiff/petitioner, a
non-lawyer, make Florida Public Record requests through a private
attorney
located 100 miles away from where the public records are kept.Plaintiff would also ask that the court
issue an order stating that the plaintiff may make public records
request in
manner and without restriction consistent with Florida Law.Moreover, plaintiff would ask that the court
inform the district judge that it is the job of the State of Florida
and its
government and judiciary to administer the Florida Public Records Act.
5.Issue an
order
taxing the Court Costs of this matter to respondents.
I, Marcellus M. Mason
Jr., hereby
declare that this brief is in compliance with the volume limitation as
set
forth by this Court.This brief as
reported by the word count function of Microsoft Word 97 contains less
than
14,000 words including the table of contents, table of authorities, and
other
items not countable towards the 14,000 word count limit.
I HEREBY CERTIFY that a true
and
correct copy of the foregoing has been furnished via US Mail, postage
prepaid,
first class, on, Thursday, March 8, 2001, to: Allen, Norton & Blue,
324
South Hyde Park Avenue, Suite 350, Tampa, Florida, 33606 and copy has
been
provided to Donald L. Graham, United States District Judge, Southern
District
of Florida.
I HEREBY CERTIFY that a true
and
correct copy of the foregoing has been furnished via US Mail, postage
prepaid,
first class, on, Thursday, March 8, 2001, to: Allen, Norton & Blue,
324
South Hyde Park Avenue, Suite 350, Tampa, Florida, 33606 and copy has
been
provided to Donald L. Graham, United States District Judge, Southern
District
of Florida.