IN THE MATTER
OF A COMPLAINT FILED BY MARCELLUS M.
MASON, JR.
IN RE: The complaint of Marcellus M.
Mason, Jr.,
against Donald L. Graham, United States District Judge for the United
Southern District Court for the Southern District of Florida under the
Judicial
Conduct and Disability Act of 1980, 28 U.S.C. § 372(c).
ORDER
Marcellus M. Mason. Jr. filed this
complaint
against United States District Judge
Donald L. Graham, pursuant to Title 28 U.S.C. § 372(c) and Addendum
Three to
the Rules of the Judicial Council of the Eleventh Circuit.
The allegations of the Complaint are
"directly related to the merits of a decisionor
procedural ruling" and/or 'Action on the complaint is no longer
necessary
because of intervening
events, and therefore
moot". Consequently, pursuant to 28 U.S.C. § 372(c)(3)(A) and (3)(B)
and
Addendum Three Rule 4 (a)(2), this Complaint is DISMISSED.
***It is not necessary to read the rest of the complaint as the first
three
allegations are sufficient to disqualify a Judge.
RE: Case No.01-14078, Case
No.0014240, Case No.00-14201, and Case No.99-14027
Judge Complained Of: Donald L. Graham
Honorable
Chief Judge:
Background
Information. Donald L.
Graham has
been assigned to handle all the cases I am involved in except one,
01-14224,
where his being sued for his bad behavior
It
is my
contention that Graham has badly mishandled my cases. The behavior of
Graham
has not been in accord with the Code of Conduct For United States
Judges. My
complaint is largely that the Graham has refused to consider and has
ignored my
flings and pleadings and have taken no action. Additionally, I am also
troubled
by the fact that I have asked for explanations regarding a couple of
matters
and have not received any. I am also concerned that Graham exceeded his
judicial authority. In support of this complaint, I state the
following::
"A
Judge Should Perform the Duties of the Office Impartially and
Diligently."
Canon 3 Code Of Conduct For United StatesJudges. Canon 3 Code Of Conduct
For United States Judges.
Case
No.01-14078. The complaint
in this lawsuit was filed on or about
3/12/01. (DE #1). A motion to proceed in forma pauperis was filed
on
3/12/01. (DE #2). I also filed a mortgage statement at the time
which
demonstrated that my mortgage was in arrears. (DE #3). I also filed a
PLAINTIFF'S MOTION FOR A RULING ON HIS IN FORMA PAUPERIS MOTIONon
or about July 10,2001. On or about August 6,2001,1 filed a PLAINTIFF'S
SECOND
MOTION FOR A RULING ON HIS IN FORMA PAUPERIS MOTION. To date, Judge
Graham has
taken more than six months to rule on a simple motion to proceed in
forma
paupers. Judge Graham does not have the legal authority to sit on
motions and
not do anything. Graham's duty is to either grant or deny the motion.
Graham is
quite certain that given my history that I will appeal any denial of in
forma
pauperis motion because I have done so when he denied me once before
without
any explanation. See Eleventh Circuit Case No. 00-16512-B.
Case
No.00-14240, Heartland
Library Cooperative, et.al. v. Marcellus M.
Mason, Jr. . This lawsuit was
filed
on or about August 7, 2000. (DE #1). On 2/13/01, the court dismissed
this
frivolous lawsuit. (DE #33);(DE #27). I filed a motion for leave to
amend to
add claim for malicious prosecution on 1/8/01. (DE #5). This motion was
denied
without prejudice. (DE #26). I have subsequently filed other motions
for leave
to amend to add a cross-claim for malicious prosecution. (DE#36). On or
about
May 18,2001,1 filed a Defendant's/Cross Plaintiffs Renewed Motion for
Clarification And Motion For Leave to Amend. On or about July 9, 2001,1
filed a
Defendant's/Cross Plaintiff's Third Motion For Leave to Amend. As of
this date,
September 14, 2001, Judge Graham has refused to respond to any of
motions for
leave to amend. It should not take over seven months to rule on a
motion for
leave to amend In this same case after the court dismissed the
plaintiff's
single claim, I filed a motion for taxation of costs which was promptly
denied
without any explanation from Judge Graham. (DE #'5 30:31:32:35). Upon
denial of
my motion for taxation of costs, I filed a notice of appeal and a
motion
to proceed in forma pauperis [11th Circuit Case No.01-11153-C. (DE
#37);(DE
#41). The motion to proceed on appeal in forma pauperis was filed on
March 15,
2001. As of April 19, 2001 or more than a month later, Judge Graham had
not
ruled on my motion to proceed in forma pauperis. I received a letter
from a
clerk [dated April 19, 20011 from the 11th Circuit inquiring
about
the motion to proceed in forma filed with the district court or Judge
Graham~.
On or about April 24, 2001, I immediately copied this letter and
attached it to
a Defendant's Motion For Clarification On Plaintiff's Motion To Proceed
On
Appeal In Forma Pauperis. On April 30, 2001, after receiving the
inquiry from
the 11thCircuit, Judge Graham decided to deny my
motion to
proceed on appeal in forma pauperis. (DE #43). It should not take over
1 ½
months to rule on a simple motion to proceed in forma pauperis. Once
Graham
received my motion for clarification that was filed on April 24, 2001
that had
a copy of the letter of April 19, 2001 from a clerk in the Eleventh
Circuit attached
to it, he made the decision to deny the motion in only 6 days. Graham
could
have made a decision without the pressure of the Eleventh Circuit in
the more
than one month he had been sitting on my motion to proceed in forma
pauperis.
In his order of April 30, 2001, Graham states, "Defendant Marcellus M.
Mason, Jr. has several cases pending in the Court in which his various
motions
to proceed in forma pauperis have repeatedly be denied. As Defendant is
well-
aware, the Court has already determined that he does qualify to proceed
without
the payment of fees." It may well be that Graham has already
predetermined
that he will deny any in forma pauperis motion made by me, but the
Eleventh
Circuit rules require that I submit the motion to Graham even though
his
ultimate denial is a fait accompli. It should not take Graham two
months to
deny, in this case, or grant a motion to proceed on appeal especially
when
Graham has already decided he is going to deny any motion to proceed in
forma
pauperis that I make. My complaint is that Graham is required to act
promptly
even if he intends to jerk me around. I should not have to wait 2
months on
Graham to decide to deny a motion to proceed in forma pauperis,
especially when
he freely admits that he is going to deny the motion. Graham should
make his
pre-determined denial immediately so that I can file my motion to
proceed in
forma pauperis with the 11th Circuit so that I can move my
case
along. Plaintiff submits that Graham takes a long amount of time to
rule my
motions to proceed in forma pauperis because he is now trapped into a
bad
decision he made in another case to deny me in forma pauperis. In Case
No.00-14201, Graham denied my in forma pauperis motion, but the
Eleventh
Circuit, looking at the exact same information as Graham granted me the
right
to proceed in forma pauperis, Graham is fully cognizant of this fact.
This case
is now appeal docketed under Case No. 00-16512-B. Graham is going to
deny or
grant a motion, but he has absolutely no right to sit on a motion and
not
decide with the hope that the motion will somehow go away.
Case
No.00-14201, Marcellus M. Mason, Jr. V. Highlands County Board of
County
Commissioners, Eleventh Circuit Case No. 00-16512-B. This case was
filed on
July 3, 2000. (DE #1). A motion to proceed in forma paupers was filed
on July
3, 2000. (DE #2). This motion languished in the court and was not ruled
on
until November 21, 2000 or over four months after it was filed. Judge
Graham's
refusal to timely rule on this matter caused some confusion in this
case. I
filed yet a second motion to proceed in forma pauperis on November 8
2000. (DE
#11). Both motions to proceed in forma paupers were denied. (DE
#12);(DE #13).
On November 30, 2000,1 filed a notice of appeal. (DE #14). As required
by the
rules, I filed a motion to proceed on appeal with Judge Graham on
12/19/00. (DE
#16). Rather than Judge Graham ruling on the motion, he referred the
motion to
Magistrate Judge Lynch. (DE #18). Judge Lynch subsequently denied my
motion to
proceed in forma pauperis on appeal. (DE #20). I then filed an appeal
with
Judge Graham who subsequently denied my appeal. (DE #21);(DE #22). I
filed an
appeal of the with the Eleventh Circuit and motion to proceed in forma
pauperis. The Eleventh Circuit looking at the exact same financial
information
allowed me to proceed on appeal in forma pauperis. This case is now on
appeal
bearing 11th Cir. Case No. 00-16512-B. My complaint is NOT
with the
denial of in forma pauperis motion, but with the length of time Graham
is
taking to render a bad decision. Apparently, Graham has every right
to
make foolish and vindictive decisions, but he has no right to sit on a
motion
for over four months and do absolutely nothing. I am simply not going
to stand
for these kind of shenanigans.
Case No.99-14027.
This case is the biggest
travesty and miscarriage
of justice. On November 24, 1999,1 filed a motion for a preliminary injunction pursuant to
Title VII.
(DE # 39). In almost two years, Judge Graham has not ruled on this
motion. I
have made repeated motions and filings with Judge Graham to figure out
why he
refused to rule on my motion for a preliminary injunction. See
for
example, (DE #60); (DE #66); (DE #80); (DE #88); (DE #93); (DE #160);
(DE
#164); (DE#165); (DE#171); (DE#183); (DE#187); (DE#211); (DE#214);
(DE#219);
(DE #288); (DE #295); (DE #300); (DE #305); (DE #309); (DE #306); (DE
#333);
(DE #343); (DE #410); (DE #414);(DE #507);(DE #573);(DE #668);(DE
#706). Judge
Graham does not have the right to deny a Congressionally mandated form
of
relief by sitting on his but and not doing anything. Judge Graham has
denied my
right to relief, not on the merits, but on his unwillingness to rule on
a
motion. There is absolutely no reason why Graham should not have ruled
on my
motion for a preliminary injunction. Essentially, Graham has denied me
a lawful
remedy, not on the merits of a lawful decision, but I have been denied
by
malfeasance. I have repeatedly asked for explanations as to why my
motion for a
preliminary injunction was never ruled on, but Graham has stubbornly
refused to
respond and provide me any kind of explanation as to why he refused to
rule on
my motion for a preliminary injunction. This kind of behavior is
unacceptable
and simply will not be tolerated. Graham took away my hope and dreams
of
equitable remedy by simply by doing nothing.
To
further add salt into my
would, Graham's Court granted the defendants' motions for "preliminary
injunctions." (DE #199) (DE #231); (DE #201);(DE #246). These orders,
(DE
#201);(DE #246) were issued on June 19, 2000 and July 25, 2000. It took
the
court exactly (DE #199) (DE #231) exactly 6 and 13 days, respectively,
to grant
the defendants' motions for preliminary injunctions or "a pretial
discovery issue and not an injunction per se". Plaintiff's motion
for
a preliminary injunction had been pending since November 24,1999, but
the Court
had made no ruling. The defendants' counsel asked the Court to issue
injunctions to stop me, a non-lawyer, from communicating with the
government
defendants in this matter without seeking the permission of their
private
attorneys, Allen, Norton & Blue, who live in Tampa, Florida, or 100
miles
away from Sebring, Florida where I live. The defendants through counsel
also
asked the court to issue an injunction requiring me to submit my
Florida Public
Records request to their Private Attorneys before submitting
them to the
government defendants directly. I have a First Amendment right to
petition the
government and I am not required to seek a private attorney's
permission to speak
with or petition the government about any subject I feel like, lawsuit
notwithstanding. I have a Florida Constitutional right and a statutory
right to
public records. I am never required to seek the permission of a federal
judge
to petition the government or make public records request under the
laws of Florida. It is none of Graham's business what my out of court
behavior is. I do not need,
want, or seek the approval of Graham of my out court behavior. I have
every
right to say whatever I want to the government defendants in this
matter with
or without the approval of private attorneys or a federal judge. My
rights are
no less or greater than any non-litigant citizen. It was not a judicial
act,
nor was Graham acting in a judicial capacity and Graham's action was in
clear
absence of jurisdiction. I cited legal authorities to Graham that
concluded
that the court's orders of June 19, 2000 and July25, 2000, (DE 201);(DE
#246),
are not just "clear error," but "dead wrong" i.e. Restatement
ofthe Law (Third) The Law Governing Lawyers, ~99. Cmt. K.,
pg. 76; Florida Bar Rule 4-4.2. Graham does not state why he alone
appears to have more insight
than every other legal authority to h~ handled this type of issue.
Instead he
patronizes me by saying, "If the Plaintiff was represented, his
attorney
would know that this is proper procedure." (DE #766, Page 3). I have
repeatedly asked Graham where he gets the legal authority from to issue
orders
telling me how I have to speak to the government defendants in this
matter or
dictating to me how I access
3
public records,
however they have failed to cite any legal
authority for their patently illegal behavior. See (DE #200); (DE #
239); (DE
#264); (DE #262); (DE #284); (DE #334); (DE # 509); (DE # 515); (DE #
526); (DE
#633) and the court's orders: (DE # 279);(DE #407); (DE # 514);(DE #
524);(DE
#634). As a matter of fact, the
defendants counsel even knows these orders, (DE #'5 201:246) are
illegal
because they have told the Eleventh Circuit Court of Appeal as much.
"Admittedly, The Court in McDonnell Douglas held that there is nothing
that prohibits one party to a litigation from making direct contact
with
another party to the litigation. It is based its rationale on the fact
that
Rule 4.2 of the Professional Rules of Responsibility is designed to
regulate
the conduct of lawyers, not non-lawyers." See 11th Circwt Case
No.01-11850, Appellees' Response Th Opposition To Appellant's Emergency
Motion
ForA Stay Pending Pending Review, Page 8). In other words,
defendants'
counsel tells the district court one thing and the Eleventh Circuit
another.
See PLAINTIFF'S OBJECTIONS TO R&R (DE #766) DISMISSING
PLAINTIFF'S
COMPLAINT page 6, flIed on or about June 12, 2001. I have told
Graham of
the trickery and chicanery the defendants' counsel has perpetrated on
the
Court, but they have failed to do anything. I have repeatedly asked
Graham and
Lynch where they get the legal authority or subject matter jurisdiction
to tell
me when and I how I can communicate with the government. I have asked
them
where they get the legal authority from to tell me how I can access
Public
Records under Florida Law. To date, Graham has refused to state in
writing
where he gets the legal authority from to take these actions. This is
unacceptable, I demand an explanation of legal authority. Graham has
had since
June 2000 to answer the question of legal authority and subject matter
jurisdiction, but he has utterly failed to do so. It is not
unreasonable for a
party to ask a Judge the simple question of by what legal authority do
you act?
I demand an answer. As a result of his behavior I have given Graham a
Lawsuit
for recklessly violating my First Amendment Rights.
My
lawsuit was dismissed pursuant to two motions for sanctions in the form of dismissal submitted by the
defendants. (DE
#51 1);(DE #646). The dismissal was based on the illegal orders
referenced
above. (DE #201);(DE #246). The Magistrate Judge wrote a purely
conclusory
Report and Recommendation recommending dismissal of my lawsuit, which
was
adopted by Graham2. (DE #766); (DE #791). I vigorously
opposed the
R&R. See PLAINTIFF'S OBJECTIONS TO R&R (DE #766) DISMISSING
PLAINTIFF'S COMPLAINT. Graham claims he did a "de novo~ review,
but he
followed his usual practice of making mere conclusory statements with
no
recitation to law or facts. (DE #766). Graham wrote a one and half page
"de novo" review. I want somebody to provide me with an explanation
of how a Judge can dismiss a complaint based on two illegal orders, (DE
#201);(DE #246). Again, these orders, attempt to dictate to me, a
non-lawyer,
the terms under which I may communicate with the government and request
Public
Records under Florida Law. I want Graham to tell me where he got the
legal
authority from render such orders, in fact, I demand this information,
forthwith.
Graham
has sat on my motions and appeals
for months without doing anything. It is kind of funny, but it took
Graham
eight days (mail time included) from the time I mailed my objections to
the
Magistrate's Report and Recommendation (DE #766) to the Court on June
12, 2001
to the time he purported conducted a 1 ~A page mere conclusory de novo
review
on June 20, 2001 (DE #791) to dismiss my lawsuit. Graham acted with
great
dispatch, six days, to illegally dismiss my lawsuit, however he was in
possession of numerous appeals that had been pending for months that he
had
failed to rule on. On June 12, 2001, Graham had not ruled on the
following
motions and appeals I had submitted:
Appeals3
Date Filed
Motions
Date Filed
438
11/29/00
667
4/18/01
439
11/29/00
703
5/07/01
Footnote
3 These are appeals filed with the District Judge that were not acted
on.
4
440
11/29/00
709
5/10/01
441
11/29/00
710
5/10/01
518
3/5/01
711
5/10/01
544
3/12/01
712
5/10/01
561
3/16/01
714
5/10/01
563
3/18/01
715
5/10/01
607
3/28/01
716
5/10/01
632
4/4/01
724
5/11/01
660
4/13/01
726
5/16/01
693
4/30/01
741
5/21/01
694
5/1/01
742
5/21/01
702
5/7/01
749
5/23/01
723
5/11/01
NA
6/15/01
733
5/18/01
NA4
6/18/01
734
5/18/01
NA
6-18-01
NA
6-2-01
NA
6-2-01
I
will need an explanation why Graham utterly failed to rule on my
motions and
appeals and why he had time to illegally dismiss my complaint in just
six days
where claims he conducted a "de novo" review, but had no time to rule
on motions and appeals that had been pending for months. Either Graham
is going
to do his job or he isn't. I demand an explanation.
On
three separate occasions Graham has failed to do his duty and conduct a
"de novo" review.
(DE
#336); (DE #351); (DE #408); (DE #435); (DE #436); (DE #466); (DE
#766); (DE
#791).
This
case [99-14027) has been sloppily managed or mismanaged to my detriment
I filed
a motion to disqualify along with several supplements to lay out how
badly
managed this case has been mismanaged. See DE #'5 460, 533, 543, 560,
567, 611
and 638. See also PLAINTIFF'S THIRD MOTION TO DISQUALIFY AND
PLAINTIFF'S
OBJECTIONS TO COURT ORDER DENYING PLAINTIFF'S MOTION FOR CLARIFICATION
filed on
or about April 11, 2001. Ultimately, Graham's failure to act is
draining the
resources of the federal courts because I have NO intention of sitting
back
while the Graham summarily dismiss my rights.
I
have not bothered to mention all the bad decisions made by Graham and
Lynch for
that is a matter left for an appeal brief. I have tried to lay out the
non-decisions of Graham and the unnecessary hassle, long delay, and
prejudice
visited upon me. I have filed a Notice of Appeal to attack the sloppy
decisions
of the Court, mostly of Frank Lynch, Jr. However, I can't file the
appeal of
the launching pad because Graham refuses to rule on my motion to
proceed in
forma pauperis. I filed a motion to proceed on appeal in forma pauperis
on or
about June 23, 2001. This motion has not yet been ruled on.
Subsequently, I
filed a PLAINTIFF'S MOTION FOR A RULING ON HIS IN FORMA PAUPERIS MOTION
on or
about July 10,2001. This motion has not been ruled on yet either. It
has been
more than three months and Graham has refused to rule on my motion to
proceed
in forma pauperis on appeal. I am a little sick and tired of this kind
of
behavior and I am not going to tolerate it.
Signed
4
"NA", means not available to Plaintift because the Plaintiff does not
have access to Pacer to get the Docket Number.
5
All of my financial affidavits show the
following: I was
and still unemployed. I have a home mortgage of $458.00 a month. I have
and had
a car payment of $332.00 a month. The car has since been repossessed,
but I
still have the $332.000 month payment. I have light bills that exceed
$100.00 a
month. I had a telephone bill that averaged between $50-$100. I have
water
bills that average between $30-$70.00 a month. I have been unemployed
since
September 1999. My wife has a gross income of $618.00 a month. Any reasonable person would
realize that I have no
money to pay court filing fees. My financial condition is well
documented and beyond the requirements of the Southern District of
Florida.