Judicial Misconduct Complaint, Judge Donald L. Graham, Dated July 9, 2008

Wednesday, July 9, 2008

J.L. Edmondson

c/o Thomas K. Kahn, Clerk
U.S. Court of Appeals for the 11th Circuit
56 Forsyth St. N.W.
Atlanta, Georgia 30303

RE: Complaint of Misconduct Against U.S. Dist. Judge Donald L. Graham[1]

Dear Judge. Edmondson:

Please consider this complaint along with prior complaints to further buttress my argument that Judge Graham has engaged in a pattern and practice of disregarding prevailing legal standards and thereby causing expense and delay to me. I refer you specifically to the following complaints: No. 01-0054;No. 01-0054-Judicial Council;No. 01-0068;No. 01-68-Judicial; Council;No. 02-0052;No. 02-0059;No. 05-0008;No. 05-0011;No. 05-0012;No. 05-0013;No. 05-0020;No. 05-0021

Definitions

Lie “to create a false or misleading impression”[2]. Something meant to deceive or give a wrong impression. http://www.thefreedictionary.com/lie

Lying by Omission- One lies by omission by omitting an important fact, deliberately leaving another person with a misconception.[3] “Lying by omission is when an important fact is omitted, deliberately leaving another person with a misconception. This includes failures to correct pre-existing misconceptions.”[4].

Prevaricate to speak falsely or misleadingly; deliberately misstate or create an incorrect impression; lie.[5]

History of Misconduct

Judge Graham has been accused of: intentionally lying and misrepresenting the law; refusing to rule on a motion for a preliminary injunction for more than 15 months; allowing scores of motions to go undecided; and usurping legal authority. These allegations were specifically mentioned and supported by actual documents in the following cases with the Eleventh Circuit: Direct Appeal, Case No. 01-13664-A, mandamus, Case No. 01-15754, however there is no mention of these allegations in any of these actions. It would appear that a law clerk at the Eleventh Circuit gave himself permission to simply ignore these very serious allegations because they can not be denied. This is unacceptable and simply will not be tolerated. Mr. Donald L. Graham is going to be held accountable for his actions. Please see URL: http://mmason/freeshell.org/refusetodiscuss.html; and http://mmason/freeshell.org/trickery/trickery.htm.

Background Facts

Case No. 99-14027-CIV-Graham/Lynch was filed on February 4, 1999. See Docket. On November 22, 2000, Magistrate Frank Lynch, Jr. rendered a Report and Recommendation, “R&R”. (D.E. #435). This R&R was a response to a motion to dismiss submitted by the Defendants on September 28, 2000. (D.E. #342). On November 29, 2000, I vehemently and stridently opposed this R&R with 22 pages of objections in small fonts, 10.5pt. (D.E. 436). On February 13, 2001, Judge Graham “Ratified, Affirmed, and Approved” the R&R in its entirety. (D.E. #466). While Judge Graham expressly acknowledged that I filed objections; Judge Graham did not specifically respond to any of the objections. Consequently, the R&R is a decision of the Court and Judge Graham personally.

There were five complaints filed in this matter: Complaint, (D.E. #1), First Amended Complaint, (D.E. #40), Second Amended Complaint, (D.E. #159), Third Amended Complaint, (D.E. #235), and Fourth Amended Complaint, (D.E. #321). Of these five Complaints, only two were reviewed or tested for sufficiency by motions to dismiss, Second Amended Complaint, (D.E. #159) and Fourth Amended Complaint, (D.E. #321). The Second Amended Complaint, (D.E. #159) yielded a Report and Recommendation, (D.E. #192), that was adopted in whole by Judge Graham on July 5, 2000. (D.E. #227). The other three Complaints, Complaint, (D.E. #1), First Amended Complaint, (D.E. #40), and Third Amended Complaint, (D.E. #235) were mooted either by Court order and/or the granting of motions to dismiss.

Ethical Standards of Judicial Opinion Writing

"Judges have an obligation to ensure that their written work reflects the integrity, impartiality, and competence they are expected to exhibit from the bench. These qualities are as important as justice and fairness. Without integrity, impartiality, and competence, neither justice nor fairness is possible." Gerald Lebovits, Alifya v. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing, 21 Geo. J. Legal Ethics 237, pg. 241 (Spring 2008). This treatise states that Canons 1, 2, and 3 are implicated in judicial opinion writing. Id. 240-42. "Where honesty or integrity are at issue, a single action can result in a finding of judicial misconduct." In re Hill, 152 Vt. 548, 572-75, 568 A.2d 361, 373-75 (1989).[6] “Legal error and judicial misconduct are not mutually exclusive.” In Re Feinberg, 5 NY3d 206,New York State Commission on Judicial Conduct.

Summary of Alleged Misconduct

The R&R that Judge Graham adopted is a cesspool of dishonesty. The R&R makes extensive use of lies by omission, commission, and it prevaricates. The R&R is a blatant attempt to mislead the reader. Judge Graham also disregarded prevailing legal standards. The effect of Judge Graham’s behavior was that a lawsuit was butchered and claims were summarily dismissed based upon lies and circumvention of clearly binding precedent. This Complaint and other complaints should be viewed as a part of an overall pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards

ALLEGATIONS OF MISCONDUCT SUPPORTED BY THE RECORD

Judge Graham has expressly attempted to improperly impose his will upon me about what he thinks the nature of the lawsuit should be about. “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.” See R&R, (D.E. #435, pg. 8,9).

Judge Graham and his Magistrate lied and intentionally misstated material facts with respect to Marcellus Mason not specifically setting forth exactly what defamatory statements were made against him. The R&R states: In respect to the defamation, the Plaintiff simply refers to allegedly false affidavits of fellow employees and once again does not specifically set out any of the defamatory language which he believes is actionable... Also, the Plaintiff does not specifically set forth exactly what defamatory statements these individuals made against him. Simply by referencing to affidavits and making the Court or the jury make a determination as to what those affidavits contain and whether or not there is anything defamatory in them does not satisfy the pleadings requirements. Fowler v. Taco Viva Inc., 664 F. Supp. 152 (S.D. Fla. 1986). Accordingly, this Court is going to recommend to the District Court that Counts Twelve and Thirteen be dismissed with prejudice. See R&R, (D.E. #435, pg. 5). The following statements in the denoted paragraphs of Plaintiff’s Fourth Amended Complaint “tends to subject a person [Marcellus M. Mason, Jr] to hatred, distrust, ridicule, contempt, or disgrace, or tends to injure him in his trade or profession”:

¶388, HESSLINK’S affidavit both explicitly and implicitly state that Mason was violent, short-tempered, and that he had actually attacked a fellow employee.
¶389, CARINO’S affidavit specifically states that MASON threatened physical injury to an employee(s);
¶392, HUNT’S affidavit explicitly and implicitly states that MASON threatened bodily harm against her.
¶393, Mr. Myers, went on further to characterize MASON, whom Mr. Myers barely knows, as dangerous.
¶394, Mary Myers signed a sworn affidavit that MASON threatened bodily harm to both her and her family. MYERS authored letters dated October 2, 1998 and October 12, 1998 that falsely state that MASON had threatened physical violence against fellow employees.
¶406, Wood wrote and authored letters, statements, and affidavits that falsely accuse Mason of threatening physical violence against other fellow human beings.
¶407, Wood, Hesselink, Myers, Myers [Fred], Carino, Cool, Hunt, Kilroy and other agents of Heartland and Highlands have falsely accused Mason of committing the criminal act of assault.
¶409, Members of the Highlands County Board of County Commissioners have given statements to the local press alleging that MASON is dangerous and has threatened violence against employees and their families.

See Complaint, (D.E. #321). Additionally, Judge Graham was specifically told of the allegations above in PLAINTIFF’S OBJECTIONS TO MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION. See (D.E. 436).

Judge Graham and his Magistrate lied and intentionally misstated material facts with respect to Marcellus Mason requesting leave to amend. The R&R states:

The Fourth Amended Complaint is a twenty-seven count Complaint. The District Court has adopted this Court's previous Reports and Recommendations recommending dismissal of certain of the counts on previous Complaints filed by the Plaintiff. This Court mentions at the outset the history of this case shows that it is obvious the Plaintiff does not adhere to this Court's previous Orders directing that the Local Rules and the Federal Rules of Civil Procedure be complied with in respect to seeking amendments of his Complaint, adding causes of action or otherwise. See R&R, (D.E. #435, pg. 1). The above statement is patently false and is completely contradicted by the record for a couple of reasons:

On August 11, 2000, Plaintiff sought leave to amend the Complaint. (D.E.#272). Leave to amend was granted on August 21, 2000, (D.E. #286). Plaintiff sought leave to amend his Complaint again on September 15, 2000. (D.E. #320). The proposed Fourth Amended Complaint was submitted on September 15, 2000. (D.E. #321). Judge Graham fails to cite the record to support his allegations.

Judge Graham and his Magistrate have: (1)acted arbitrarily by failing state the rule on which the decision was made and how the law was applied to facts; (2)intentionally mischaracterized the Plaintiff's allegations in the fourth Amended Complaint; (3)lied and intentionally misrepresented the facts; (4)eschewed and disssed well-established law and the United States Supreme Court. The R&R states the following:

This Court agrees with the Plaintiff that he did not have to risk arrest to try raise a §1983 claim. However, the allegations that he sets forth in his fourth Amended Complaint do net specifically state a cause of action for violation of his civil rights in respect to receiving a no trespass warning after being terminated from employment at that facility. Further, the Plaintiff’s allegations set forth in his fourth Amended Complaint do not establish or even state a cause of action for racial animus nor abuse of judicial process as he has previously alleged in respect to the trespass warning claims. Simply because the Plaintiff is an African-American, does not satisfy the pleading requirements of stating a cause of action concerning the warning he was given to not again trespass or come into the public library where he previously worked and allegedly harassed the employees subsequent to his termination. These allegations have been before this Court previously and this Court has recommended that they be dismissed. At this juncture, this Court cannot see any more facts that the Plaintiff has accumulated to justify allowing these claims to go forward further and this Court would recommend that Counts Eighteen, Twenty and Twenty-Two be dismissed with prejudice. See R&R, (D.E. #435, pg. 4).

(1)Judge Graham acted arbitrarily by failing state what the law is in relation to stating claims under §1983 or how his undisclosed version of the law was applied to facts.

(2)Judge Graham and his Magistrate intentionally mischaracterized the Plaintiff's allegations in the fourth Amended Complaint. The R&R characterizations of the Plaintiff's complaint and reasons for wholesale summary dismissal of claims related to the "No Trespass Notices" are completely contradicted by the record. In ¶¶410-458 of plaintiff’s Fourth Amended Complaint, plaintiff lays out specific allegations regarding these illegal “No Trespass Warning”. Counts Eighteen, Twenty and Twenty-Two, ¶¶495-500, 503-508, and 512-517 all state something like the following:

Agents of the Defendants Highlands and Heartland were acting under the color of law in violating the rights of Marcellus M. Mason, Jr.
HIGHLANDS and HEARTLAND made a separate and discreet choice to discriminate against MASON by issuing yet a second “No Trespass Warning” on June 30, 1999. Based upon the foregoing, HIGHLANDS and HEARTLAND have abridged plaintiff’s right to freedom of expression and to petition for a redress of grievances, in violation of the First and Fourteenth Amendments to the United States Constitution, and are liable for such violation pursuant to the Civil Rights Act of 1971, 42 U.S.C. 1983.
Based on the foregoing, defendants, HIGHLANDS and HEARTLAND, have denied plaintiff the equal protection of the laws, in violation of the Fourteenth Amendment to the United States Constitution, and are liable for such pursuant to the Civil Rights Act of 1971, 42 U.S.C. §1983.
Based on the foregoing, defendants, HIGHLANDS and HEARTLAND, have deprived plaintiff of property without due process of law, in violation of the Fourteenth Amendment to the United States Constitution, and are liable for such violation pursuant to the Civil Rights Act of 1971, 42 U.S.C. §1983.

(3)Judge Graham and his Magistrate lied and intentionally misrepresented the facts when they asserted: "These allegations have been before this Court previously and this Court has recommended that they be dismissed." In the Court’s only other R&R [passing on plaintiff; second amended complaint, (DE # 159) related to any dismissal motions, (DE #191);(DE #192), the May 10, 2000 R&R makes no mention of dismissing any claims related to 42 U.S.C. § 1983. In fact even defendants’ counsel in their Motion For Clarification, (DE #193), page 2, docketed on May 26, 2000 stated: “In dismissing Plaintiff’s public accommodation counts, the Court failed to address Plaintiff’s Counts Fifteeen, Sixteen, Twenty-three, and Twenty-four, which also sets forth claims based on public accommodation under 42 U.S.C. § 1983 and 42 U.S.C. § 1981, respectively...In addition, the Court's Order did not address Plaintiff's Counts Nine and Ten for violation of 42 U.S.C. §§ 1981 and 1983 respectively.” See Motion for Clarification, pg. 2, (D.E. #193).

Judge Graham eschewed well-established law and the United States Supreme Court. In Parratt v. Taylor, 451 U.S. 527, 535 (1981), the Supreme Court held that the two essential elements to a § 1983 action are: "(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." A claim under Sec. 1983 is made if the complaint alleges facts establishing a deprivation of rights secured by the Constitution or laws of the United States. Rutherford v. City Of Berkeley, 780 F.2d 1444 (11th Cir. 1986). The allegations above clearly meets the Supreme Court’s standard for stating a claim under 2 U.S.C. § 1983.

To Be Continued.

Due to the massive nature of the lies and deceptions, the R&R will require another complaint because of your unwillingness to allow me to exceed the five page limitation. On August 21, 2000, your clerk returned a complaint unfiled in part because: “Statement of facts are limited to a total of five pages.” See McElhenney Letter. The job is made even more difficult by your demands for absolute proof and unwillingness to investigate or ask for more information regarding complaints. E.g., (“Mr. Mason has not presented any information, evidence or documentation to support his claim to suggest that the omission of this motion on this CJRA report was an intentional attempt by Judge Graham to conceal his failure to rule on the motion.”), See Order Dismissing Complaint No. 05-0008. However, you seem to want to have it both ways by asserting: “Some of Mr. Mason's most recent judicial complaints indicate that he may be perusing the district court docket sheets and simply filing complaints on any order issued by Judge Graham about which he has not previously complained.” See Show Cause Order, pg. 2, No. 05-0001-SC. Unlike Judge Graham, I have to live within the rules.

Sincerely,

Marcellus M. Mason

214 Atterberry Drive

Sebring, FL 33870

[1] An online version of this complaint is available at: http://mmason.freeshell.org/372c/Complaint_07092008.doc ; This document has embedded clickable links for ease of investigation by the Judicial Council and other interested parties.