CONFIDENTIAL

BEFORE THE CHIEF JUDGE

OF THE ELEVENTH JUDICIAL CIRCUIT

DEC 06 2002

 

 

Miscellaneous No. 02-0052

 

IN THE MATTER OF A COMPLAINT FILED BY MARCELLUS

 

IN RE: The complaint of Marcellus M. Mason, Jr., against Donald L. Graham, United States District Judge for the United States District Court for the Southern District of Florida, under the Judicial Conduct and Disability Act of 1980, 28 U.S.C.§ 372(c).

 

ORDER

Mr. Marcellus M. Mason, Jr. filed this complaint against U.S. District Judge Donald L. Graham pursuant to Title 28 U.S.C. § 372(c) and Addendum III to the Rules of the Judicial Council of the Eleventh Circuit.

 

In this complaint, Mr. Mason alleges that Judge Graham denied a motion to disqualify himself in case No. 99-CV-14027, that Judge Graham has failed to rule on several other motions filed in this and other cases, and that Judge Graham has engaged in unabated acts of aggression and usurpation by ruling that he was prohibited from making contact with any of the Defendants or their employees regarding any matter related to his case. Of these allegations, only the allegation concerning Judge Graham's denial of the disqualification motion is one that has not already been determined by previous order(s) of the Chief Judge,

 

The unsupported allegations of this complaint are "directly related to the merits of a decision or procedural ruling" and/or "Successive". Therefore, pursuant to 28 U.S.C. § 372(c)(3)(A) and Addendum III Rule(s) 4(a)(2) and 18 (c), this complaint is DISMISSED.



Wednesday, October 30, 2002

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:

The failure of a federal judge is disqualify is an act of misconduct and subject to complaint under 28 U.S.C. § 372(c).See In Re A Charge Of Judicial Misconduct, 85 F.3d 701 (D.C. Cir. 1996); U.S. v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001)(holding that an enforcement mechanism the Code of Conduct contains remedies extrinsic to the Code that includes an internal disciplinary proceeding, begun with the filing of a complaint with the clerk of the court of appeals pursuant to 28 U.S.C. § 372(c)). Mr. Graham was obligated to recuse himself under 28 U.S.C. § 455 on February 7, 2001, (Doc. 460) when a motion to disqualify was submitted. “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).“He shall also disqualify himself in the following circumstances: Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;” 28 U.S.C. § 455(b)(1).The behavior of Mr. Graham has not been in accord with the Code of Conduct For United States Judges. This matter was previously submitted to this Court with respect to the allegations set forth in this Complaint, however it was not specifically alleged that Mr. Graham was guilty of misconduct by not disqualifying pursuant to 28 U.S.C. § 455(a) & (b)(1).See Chief Judge Anderson Opinion, Judicial Council.  More importantly, a new complaint regarding Mr. Graham’s prior misbehavior is compelled because this Court has left me without any remedy at law to address my allegations of misconduct.  The prior complaint, Case Chref Judge Anderson OpinionJudicial Council, was dismissed because the allegations of the Complaint were "directly made to the merits of a decision or procedural ruling" and/or "Action on the Complaint is no longer necessary because of intervening events and therefore moot."  However, I filed a direct appeal in Eleventh Circuit Case No. 01-13664-A, setting forth many of the same allegations of misconduct in the instant Complaint, but this Court refused to address my contention that Mr. Graham had violated 28 U.S.C. § 455.On October 16, 2002, Case No. 01-13664-A, this Court rendered a thirteen page opinion and did not address my allegations of misconduct against Graham while proclaiming my allegations of misconduct against Mr. Graham were on the “merits.”  See Opinion Page 10. OCR format;.This Court can not have it both ways, on the one hand it doesn’t want to conduct an investigation of judicial misconduct pursuant to 28 U.S.C. § 372(c) because it is on the “merits,” and then turnaround on direct appeal and decline to address Mr. Graham’s potential misconduct because it is on the merits.  To do so would be making a mockery of the Congress and elevating procedure and dishonesty to new highs.

“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”  Canon 1,Code Of Conduct For United States Judges"A Judge Should Perform the Duties of the Office Impartially and Diligently." Canon 3.See  also Microsoft., 253 at F.3d 114 (“violations of the Code of Conduct may give rise to a violation of § 455(a) if doubt is cast on the integrity of the judicial process.”).The allegations of misconduct in this matter exceed those allegations in Chudasama v. Mazda Motor Corporation, 123 F.3d 1353, 1368 n.38 (11th Cir. 1997), where this Court disqualified the judge in that matter.  I submitted a motion to disqualify on February 7, 2001, (Doc. 460).  If the allegations in this matter are proved to be true, Mr. Graham should have recused forthwith.  “Disqualification is mandatory for conduct that calls a judge's impartiality into question…. At a minimum, § 455(a) requires prospective disqualification of the offending judge, that is, disqualification from the judge's hearing any further proceedings in the case.”  Microsoft., 253 at F.3d 116

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 PLAINTIFF'S MOTION FOR A RULING ON HIS IN FORMA PAUPERIS MOTION on or about July 10,2001.On or about August 6,2001, I filed a PLAINTIFF'S SECOND MOTION FOR A RULING ON HIS IN FORMA PAUPERIS MOTION. Judge Graham took 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.

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, I 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).  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.

D.C. Case No.99-14027, 11th Cir. Case No. 01-13664-A.

Mr. Graham and his court committed the following acts of misconduct, usurpation, and prejudice:

1.    Mr. Graham sat on a motion for a preliminary injunction for over 574 days and took no action.  On November 24, 1999,1 filed a motion for a preliminary injunction pursuant to Title VII. (DE # 39).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. Essentially, Graham has denied me a lawful remedy, not on the merits of a lawful decision, but I have been denied by malfeasance, non-feasance, and misfeasance.  Indeed this Court has legitimized this behavior because this Court has previously stated: “His mandamus petition, however is frivolous because he has failed to establish that he is entitled to mandamus relief to compel the district court to rule on his motion for a preliminary injunction.”  See 11th Case No. 01-11305, Opinion dated April 26, 2001, Page 1page 2,Pdf format 1,.  In other this words, this Court and Mr. Graham is saying that I have no remedy if a judge refuses to do his job and rule on a motion for preliminary injunction even if it takes 574 days.  But  see Cit. Concerned About Children v. School Bd., 193 F.3d 1285, 1289 (11th Cir. 1999)(“ an order that does not rule on a request for injunctive relief, but that has the effect of denying it, may be immediately appealable.”).  If refusing to rule on a motion for 574 days is not prejudicial and reckless behavior, then there is no such thing.

2.    Judge Graham has committed naked and unabated aggressive acts of usurpation.

On June 19, 2000 and July 25, 2000, the Magistrate Judge, Lynch, issued the following directives[1]:

“Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.”(DE #201), page 2.

“Plaintiff shall correspond only with Defendants' counsel including any requests for public records.” (DE #246), page 2. “Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.”(DE #246), page 2.

The pertinent comments to Rule 4-4.2, R. Regulating Fla. Bar specifically states the following:

Also, parties to a matter may communicate directly with each other and a lawyer having independent justification 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.

See also Restatement of the Law (Third) The Law Governing Lawyers, §99. Cmt. K., pg. 76, 77.

The S.D.Fla. has expressly adopted the Rules Regulating the Florida Bar.  See S.D. Fla. Rule 3, Retention Of Membership In The Bar Of This Court and Rule I. Standards For Professional Conduct.

Firstly, these orders are illegal because a Magistrate cannot issue an injunction or a restraining order even if he and the Eleventh Circuit, insultingly refer to these orders as “discovery orders.” A judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief…”28 U.S.C. § 636(b)(1)(A).cf. See Cuban American Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1421-2 (11th Cir. 1995) (“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”); Geneva Assur. v. Medical Emergency Services, 964 F.2d 599, 600 (7th Cir. 1992)(citing Sampson v. Murray, 415 U.S. 61, 85-88, 94 S.Ct. 937, 950-951, 39 L.Ed.2d 166 (1974)) (“What is true, [i]s that the name which the judge gives the order is not determinative.”).  Secondly, under the First Amendment I have a right to petition to the government and communicate with the government.  Consequently, these orders constitute an illegal prior restraint on speech specifically authorized by law.  In Bernard v. Gulf-Oil Co., 619 F.2d 459, 466, n.6 (5th Cir. 1980)[1], aff'd, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981), this Court held explicitly held that requiring the litigant to meet the Court’s “post-communication filing requirements” of constitutionally protected communication was unconstitutional.  “[A] State cannot foreclose the exercise of constitutional rights by mere labels.”  Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 6 (1964).  [C]ongress never gave, nor did the federal courts ever claim, the power to deny substantive rights created by State law or to create substantive rights denied by State law.”  Ortiz v. Fibreboard Corp., 527 U.S. 815, 845 (1999).  “The right to petition government for redress of grievances — in both judicial and administrative forums — is ‘`among the most precious of the liberties safeguarded by the Bill of Rights…’[B]ecause of its central importance, this right is "substantive rather than procedural and therefore cannot be obstructed, regardless of the procedural means applied.”  Graham v. Henderson, 89 F.3d 75 (2nd Cir. 1996).  See also Legal Services Corporation v. Velazquez, 531 U.S. 533, 548 (2001)(“ It is fundamental that the First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”);California Motor Transport Co. v.Trucking Unlimited, 404 U.S. 508, 510 (1972)(“ The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms… Certainly the right to petition extends to all departments of the Government.”); The Defendants in this matter are government defendants.  The Government does not have a right to be communicated with by its citizens.  Cf. U.S. v. Talao, 222 F.3d 1133, 1138 (9th Cir. 2000)(“ rule in legal ethics prohibiting ex parte contacts with represented parties…does not create a right in a party not to be contacted by opposing counsel.”).  These orders violate the Tenth amendment and Erie R. Co. v. Tompkins, 304 U.S. 64, 79 (1938), “Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State…[S]upervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States.”  More to the point, Florida Courts, interpreting Florida law have stated that they don’t have the right to make policy or exemptions to the Florida Public Records Act.  With respect to subject-matter jurisdiction, a federal court clearly has no jurisdiction over Florida Public records request, nor have the Defendants or the district court cited any legal authority to support the notion that a Magistrate may set the terms under which a person may request public records under Florida Law.  Henderson v. State, 745 So.2d 319, 326 (Fla. 1999)("[w]e do not equate the acquisition of public documents under chapter 119 with the rights of discovery afforded a litigant by judicially-created rules of procedure");Wait v. Florida Power & Light Co., 372 So.2d 420, 424 (Fla.1979)("we find no authority to support the argument that Florida Power & Light, by engaging in litigation before a federal forum, has somehow given up its independent statutory rights to review public records under chapter 119.  The fact that Florida Power & Light simultaneously engaged in litigation before a federal agency does not in any way prevent its use of chapter 119to gain access to public documents.").  I repeatedly and incessantly challenged the jurisdiction of the court with respect to these illegal orders, (DE #201), (DE #246), however, Judge Graham absolutely refused to state where he got the legal authority to issue the orders in question.  See for example, and note that this list is not collectively exhausted, Case No. 99-14027 see Plaintiff’s motions and responses, (Doc. #200);(Doc. #239); (Doc. #262);(Doc.#264);(Doc. #284);(Doc. #334);(Doc. #509);(Doc. #515);(Doc. #526);(Doc. 554);(Doc. 632, pg. 5);(Doc.#633);(Doc. 652);(Doc. 663); (Doc. 735); (Doc. 736); (Doc. 738); (Doc. 783); (Doc. 787, pgs 2-3); (Doc. 810); (Doc. 812); (Doc. 813); (Doc. 817); (Doc. 829), (Doc. 845);and the court’s orders: (DE #201), page 2,(DE #246), page 2,(Doc. #279);(Doc. 281);(Doc. #407, pg. 2  );(Doc. #514);(Doc.#524);(Doc. #528);(Doc. #634);(Doc. 673);(Doc. 744);(Doc. 745);(Doc.766);(Doc. 791);(Doc. 868);(Doc. 874, pg. 2);(Doc. 882, pgs. 1-2), and relevant Defendants’ responses and motions, (Doc. 199); (Doc. 199);(Doc.231);(Doc. 274);(Doc. 275); (Doc. 348);(Doc. 511);(Doc. 559);(Doc.639);(Doc. 646);(Doc.690); (Doc. 823);(Doc. 834); (Doc. 838);(Doc. 841); (Doc. 859).Recently, this Court has cited Chambers v. Nasco, Inc., 501 U.S. 32, 43 (1991), "Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence (emphasis added), and submission to their lawful mandates."  However, Chambers does not allow a federal judge to disrespect the constitution of the United States, Florida Constitution, and the Florida Statutes.  “It is true that the exercise of the inherent power of lower federal courts can be limited by statute and rule, for ‘[t]hese courts were created by act of Congress.’"  Id. at 47.

3.    Graham mismanaged this case by allowing a motions and filings to simply “die on the vine.”  Graham allowed the following submissions to languish for up to eight months:

(DE #388, 10/25/00); (DE #437, 11/29/00); (DE #438, 11/29/00); (DE #439, 11/29/00); (DE #440, 11/29/00); (DE #441, 11/29/00); (DE #518, 3/5/01); (DE #544, 3/12/01); (DE #554, 3/14/01); (DE #555, 3/14/01); (DE #561, 3/16/01); (DE #563, 3/18/01); (DE #607, 3/28/01); (DE #632, 4/4/01); (DE #637, 4/9/01); (DE #660, 4/13/01); (DE #667, 4/18/01); (DE #693, 4/30/01); (DE #694, 5/1/01); (DE #702, 5/7/01); (DE #703, 5/07/01); (DE #709, 5/10/01); (DE #710, 5/10/01); (DE #711, 5/10/01); (DE #712, 5/10/01); (DE #714, 5/10/01); (DE #715, 5/10/01); (DE #716, 5/10/01); (DE #723, 5/11/01); (DE #724, 5/11/01); (DE #726, 5/16/01); (DE #733, 5/18/01); (DE #734, 5/18/01); (DE #741, 5/21/01); (DE #742, 5/21/01); (DE #749, 5/23/01); (DE #775, 6/6/01); (DE #776, 6/6/01); (DE #777, 6/6/01); (DE #780, 6/6/01); (DE #786, 6/19/01); (DE #788, 6/19/01).

In other words, Graham does not have to rule on my filings.

4.    Mr. Graham lied and intentionally misrepresented the law.  Mr. Graham did this by telling me one version of the law while contemporaneously and simultaneous stating another version of the same law to a different Plaintiff.  Graham stated in my lawsuit that I could not state a claim under 42 U.S.C. § 1981 against a state actor while at the very same time he allowed a Plaintiff to state a claim under 42 U.S.C. § 1981 against the very same state actor, Highlands County.  In my lawsuit, Case No.99-14027-CIV-Graham, Graham's Court stated: "Counts Eight, Nineteen, Twenty-One, Twenty-Three and Twenty-Five deal with §1981 claims.  This Court believes that those claims should likewise be dismissed pursuant to the Eleventh Circuit's opinion in Butts v. County of Volusia, 222 F.3d 891(11th Cir. 2000).  In Butts, the Eleventh Circuit held that §1983 constituted the exclusive remedy against state actors for violation of rights contained in §1981.  The Plaintiff has a valid §1983 count pending concerning his termination of employment.  He has two Title VII claims as well as a disparate treatment claim pending.  The Plaintiffs response does not give sufficient reason why he is entitled to plead a §1981 claim in light of the Buffs decision.  Therefore, this Court is going to recommend to the District Court that Counts Eight, Nineteen, Twenty-One, Twenty-Three and Twenty-Five be dismissed with prejudice."  See Page 3, Report and Recommendation, (DE #435), Page 1, Page 2, Page 3, Page 4, Page 5, Page 6, Page 7, Page 8, and Page 9.  Graham signed this Report and Recommendation.   See Order (DE #466), page 2.   At the very same time, Graham was saying that I could not state a claim against a state actor under §1981, he was allowing the Plaintiff to state a claim under §1981 against the very same state actor, Highlands County Board of County Commissioners, in Case No. 00-14094-CIV-Graham, Fa Nina St. Germain v. Highlands County Board of County Commissioners.  Fa Nina St. Germain's §1981 was disposed of on the facts, not the law and not Butts v.County of Volusia, 222 F.3d 891(11thCir. 2000).  See Pages 2, Order on Summary Judgment, pages Case No. 00-14094, (Doc. 58), pps: 2, 3, 4, 5, 6, 7, 8, 9, 10, 27.  Clearly, Judge Graham either lied to me or Fa Nina St. Germain as he could have told the truth to the both of us.

5.    Graham’s Court interjected its own act of blatant prejudice by trying to dictate to me what claims it thought I should bring in my lawsuit.  Rather than allowing me to bring civil rights claims against the white folks who issued a “No Trespass Warning,” that precluded me from using the Sebring Public Library from November 30, 1998 – July 31, 2001, Graham’s Court interjected its own personal opinion and stated:

This Court has stated previously that this is an employment discrimination case and matters should proceed on those facts. For the Plaintiff to attempt to bring in what this Court believes are extraneous and fringe issues is only delaying the process by which the viability of his case can be determined. In other words, the Plaintiff needs to proceed on the facts which he allege surround his termination from employment. This Court has found on several occasions that these other extraneous and fringe issues not only have not been pled with sufficient specificity, but are without basis.

Case No. 99-14027-CIV-Graham, (DE #435, pgs. 8-9).  Imagine my surprise when a white Magistrate Judge, backed up by a purported black district judge, says I am annoying them by suing white folks who have discriminated against me.  If this is not prejudicial behavior then get rid of the statute.

          It would be far better for this Court to investigate these claims of misconduct than trying to avoid doing anything and asserting concocted procedural arguments.  It is clear that I am not easily discouraged, either Graham is guilty of misconduct or he isn’t.  Additionally, I would appreciate it, if this Court not characterize my allegations in order to shield the true serious nature of the allegations and make them appear to be benign or just a “mere pro se disagreement.”  It is starting to look like the Eleventh Circuit is trying to conceal  Graham’s misconduct from public scrutiny.  I want Graham disqualified nunc pro tunc.  Graham’s behavior cannot be defended, however, the Eleventh Circuit can destroy its own legitimacy by trying to defend Graham’s behavior and by making unpublished decisions that only prevaricate.  Graham’s behavior is being reported to influential members in the legal community.

Signed,

Marcellus M. Mason, Jr. 

218 Florida Drive

Sebring, Florida 33870



[1] Mr. Graham expressly approved of this behavior and has even endorsed this behavior. See e.g. (Doc. 407)(holing that Magistrate’s decision is not clearly erroneous.)

[2] Decisions by the former Fifth Circuit issued before October 1, 1981 are binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).