Judge Donald L. Graham Awards $200,000 against an Indigent Plaintff

Preliminary Information

This is an order awarding $200,000 in legal fees against the Plaintiff, Marcellus Mason. This case was originally assigned to Judge Edward Davis, retired, who allowed the Plaintiff to proceed in forma pauperis. See Docket Entry No. 3. This case was dismissed on June 20, 2001. See Docket Entry 766, "R&R" and 791. On June 20, 2001, when Judge Graham dismissed this case, summary judgment motions by both the Plaintiff and the Defendants were pending that Judge Graham refused to rule on. See (Doc. 507);(Doc. 667);(Doc. 668) );(Doc. 706);(Doc. 797). On September 20, 2001, Judge Graham issued a "pre-filing injunction" sua sponte. See Docket Entry No. 878. Pre-filing injunctions issued Sua Sponte have been sounly rejected as violative of due process by every US Court of Appeal, including the Eleventh Circuit to have decided such matters. For legal authority rejecting sua sponte pre-filing injunctions, see mmason.freeshell.org/RejectSuaSponte.htm . Additionally, this order also justifies awarding attorneys' fees of $200,000 based upon "finding of bad faith" in the sua sponte issue pre-filing injunction of September 20, 2001. See highlighted below, 1, 2, 3, 4, 5, A finding of bad faith requires due process or notice and opportunity to be heard. See for mmason.freeshell.org/badfaith.htm/#badfaith. legal authority on bad faith finding.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 99-14027-CIV-GRAHAM/LYNCH

MARCELLUS M. MASON, JR. ,

Plaintiff,

HEARTLAND LIBRARY COOPERATIVE ,

HIGHLANDS COUNTY BOARD OF

COUNTY COMMISSIONERS, et al.,

Defendants.

REPORT AND RECOMMENDATION ON DEFENDANTS'

VERIFIED MOTION FOR ATTORNEY'S FEES AND COSTS [D .E. #800]

THIS CAUSE having come on to be heard upon the aforementioned motion and this

Court having reviewed the motion, the attachments, the supplemental response filed b y

the Defendants in respect to this Cost's Order for more detailed documentation to support

the motion, and this Court being otherwise advised in the premises, this Court makes th e

following recommendation to the District Court .

1 . The District Court dismissed the Plaintiffs claims, with prejudice, for the Plaintiff' s

repeated refusal to comply with the Court's rules and orders . The District Court also

entered an order on September 20, 2001, in this case and other associated cases filed by

the Plaintiff, ordering the Plaintiff-to be permanently enjoined from filing any additional

pleadings in the cases he presently has filed or from filing any new lawsuits relating in any

way to his former employment and/or subsequent interactions with the Defendants without

receiving prior written permission from the Court. In that order, Judge Graham specifically

found this present case to be "vexatious and relentless litigation on the part of Mason . "

Judge Graham referred to various statements in e-mails and pleadings filed by the Plaintiff

to support the Court's order enjoining the Plaintiff from filing any further pleadings . In

previous Orders and Reports and Recommendations, this Court has also referred t o

various excerpts from the Plaintiffs pleadings and e-mails to counsel for the Defendant s

in which it is clear that the Plaintiff had no intention of abiding by the Court's rules, the law

applicable to cases of this nature and is motivated by bad faith and vexatious behavior .

2. Judge Graham's order of September 20, 2001, refers to various e-mails from the

Plaintiff which state: 1) "Anybody who supports your position on this matter is a racist and

is part of the problem. I fear no man!!! This includes white men wearing robes ."; 2) "You

don't have enough insurance and smart lawyers to outrun the law and defeat me ." ; 3) "

ain't going to have a handful of white bigots run over me ." ; 4) "Now go call your daddy i n

Fort Pierce and see if he can get you out of this mess."; 5) ". ..the hell l would give them ,

hell like you are getting . . . I ain't going to be bully by no racist white man . "

3. Judge Graham's order specifically states that his dismissal of the Plaintiff' s

lawsuit has had absolutely no effect on the Plaintiff. The Plaintiff continues to file new

cases and that is why Judge Graham felt the need to enter the order enjoining the Plaintiff

from filing any further pleadings . This is an unusual action by the District Court and is use d

very sparingly. However, in this case, it only bears out the type of relentless and vexatious

litigation which has been initiated in this particular case by the Plaintiff. The fact that the

pending Motion for Attorney's Fees and Costs in this case has a docket entry number of

800 will attest to the fact that this case has an unusual amount of pleadings, the great

majority of which have been filed by the Plaintiff without obtaining any affirmative relief .

4. Judge Graham's order of September 20, 2001, also makes a specific

finding of bad faith. Judge Graham stated, "It has become clear to the Court that Mason is

proceeding in bad faith. Indeed, he has admitted as much in his own pleadings and

correspondence. Mason has written :

I treated your lawsuit with the contempt and disrespect it

deserved. ..now you are about to be punished for filing this

frivolous action. ..Later, thumps ."
5. Judge Graham's order also cites to various other examples which

Judge Graham found

specifically reflects the Plaintiff's "intent to needlessly protract litigation and harass

the

Defendants." Judge Graham stated that such activity is in bad faith and will not be

permitted by the Court .

ANALYSIS

6. Even though bad faith is not a prerequisite to an award of attorney's fees to a prevailing defendant, if the plaintiff is found to have brought such a civil rights action or to have continued such an action in bad faith, there will be an even stronger basis for charging him with attorney's fees incurred by the defense . Christiansburg Garment Company v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978). Here, it is clear that based upon Judge Graham's previous findings of bad faith, that the Christiansburg standard is applicable. It is clear that under that standard as well as its progeny, the United States Supreme Court has specifically found that the prevailing defendants in such civil rights and employment litigation are entitled to an award of attorney's fees in a situation as this .

7. The Plaintiff has failed to make out a prima facie case. He has filed numerous

pleadings, many of which re-argue issues which were denied previously. As mentioned

above by this Court, there are some 800 docket entries in this case alone. The Plaintiff

has ignored the Court's orders and rules which has resulted in a dismissal of his Complain t

with prejudice by the District Court .

8. The District Court may award attorneys fees to a prevailing defendant in a case

such as this if the plaintiff's action is found to be frivolous, unreasonable or without

foundation, even though not brought in subjective bad faith. Beard v. B. J. Annis,730 F.2 d

741 (11th Cir. 1984) . Factors in determining whether a claim is frivolous would include, but

are not limited to, whether the plaintiff has established a prima facie case, whether the

defendant offered to settle and whether the Court dismissed the case prior to trial on th e

merits . These are just some of the factors the Court looks to and are not exclusive or al l

encompassing . See Sullivan v . School Board of Pinellas County, 773 F.2d 1182 (11th Cir .

1985) .

9. As stated previously by the District Court and by this Court herein, Judge

Graham has already made a finding of bad faith. This takes the case beyond the analysis

of frivolity . However, this Court specifically finds that the Plaintiff has not made out a prima

facie case . This Court is not aware of any offers to settle . The case was dismissed well

before trial, but after dismissing certain of the Plaintiffs claims and permitting him to

proceed on remaining claims as long as he would abide by the Court rules and orders .

Since the Plaintiff decided he would not do that and would not abide by any of those orders

of the Court, Judge Graham ended up dismissing the case with prejudice ,

10. The standard for determining attorney's fees in a case like this are by a task-by-

task examination of the hours billed and a reasonable hourly rate in the division of the

Court where the action is pending. The Defendants have submitted detailed time records

which this Court has reviewed. The Defendants assert that seven attorneys and two

paralegals have worked on this particular case. The Defendants are seeking $150.00 per

hour as attorney's fees and $60.00 per hour for the paralegals' work . The total number of

hours expended by all of the attorneys in this case total 2,595 .5 hours at the rate of

$150.00 an hour, which totals $389,325.00 in attorney's fees. The paralegals expended

233.3 hours at $60.00 per hour for a total amount of $13,998.00. This would bring the total

attorney's fees sought to $403,350.00.

11. Counsel for the Defendants also seeks approval of the Court to submit

supplemental motions for additional fees incurred in respect to preparation of the Motion

for Attorney's Fees and the subsequent pleadings . This Court finds that is absolutely

unnecessary. The sum of $403,350 .00 as attorney's fees is more than sufficient t o

compensate counsel for the Defendants in this case . Also, this Court is going to address

the issue of the financial ability of the Plaintiff to pay this award under the applicable case

law. Therefore, this Court sees absolutely no reason why any supplemental proceedings

seeking additional attorney's fees are necessary from the Defendants in this case .

12. This Court has meticulously gone through the time records, the tasks performed

and the amount of hours devoted to those tasks. While there are multiple attorneys

working on this case, there appears to have been proper billing judgment exercised in this

case. There does not appear to be any excessive, redundant or duplication of effort .

13. Based upon the nature of the litigation and the manner in which the Plaintiff

chose to pursue it with pleading after pleading which required responses, this Court find s

that the number of hours incurred by counsel for the Defendants is reasonable. Likewise,

the hourly rate of $150 .00 per hour is not only reasonable in this division of the Court, but

it is a low hourly rate. This Court regularly sees hourly rates of well in excess of $200.00

for litigation of this type in this division of the Court . In other divisions of this Court, that

hourly rate is even higher . However, the Defendants are only seeking $150 .00 an hour

and this Court finds that is a reasonable fee to be awarded in this case . See Dillard v. City.

of Greensboro, 213 F .3d 1347 (11th Cir . 2000), American Civil Liberties Union of Georgia

v. Barnes, 168 F .3d 423 (11th Cir. 1999) .

14. This Court next moves to the issue of the Plaintiff's financial ability to pay an y

award of fees. This Court believes that it is a factor which the District Court may, but need

not, consider in its award. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000). In

doing so, the District Court should require substantial documentation of the inability to pay

on the part of the non-prevailing Plaintiff in this case .

15. The Plaintiff has filed numerous affidavits seeking in forma pauperis status in

this and in the many other lawsuits that he has filed . The District Court has denied his

request for in forma pauperis status in respect to filing of his lawsuits . Nevertheless, the

Court should consider those financial affidavits, signed under oath, in respect to the

Plaintiffs ability to pay any award of attorney's fees in this case .

16. As the Chapman case cautions, this Court is not recommending that the District

Court consider the relative wealth of the parties, which it should not under Chapman. As

the Eleventh Circuit stated in Chapman, comparing the financial resources of the parties

would unduly prejudice parties with assets and undermine the legal principle that justice

is administered to all equally, regardless of wealth or status . However, Chapman goes on

to state that in no case may the District Court refuse altogether to award attorney's fees

to a prevailing defendant because of the plaintiffs financial condition . In citing its prior

decision in Durrett v. Jenkins Brickyard. Inc,, 678 F.2d 911 (11th Cir. 1962), the Eleventh

Circuit restated that "a fee must be assessed which will serve the deterrent purpose of th e

statute, and no fee will provide no deterrence" . Subject to these restrictions, the Eleventh

Circuit stated that it is left within the sound discretion of the District Court to make a

determination as to a reasonable fee in any particular case .

17 . Based upon the financial affidavits filed by the Plaintiff herein, this Court finds

it hard to believe that he could pay an award of $403,350 .66 in attorney's fees . In fact,

there are very few individual litigants who appear before this Court who would have the

financial ability to pay such an award without subjecting that individual to financial ruin . As

the Eleventh Circuit stated in Durrett, the District Court should ascertain whether, in light

of the plaintiffs ability to pay, a reduced assessment would fulfill the deterrent purpose

without subjecting the plaintiff to financial ruin . This Court finds that such a reduction is

appropriate in this case.

16. in the event that the District Court follows this Court's recommendation and

reduces the award of attorney's fees, this Court does not believe that such a reduction

reduces, in any way, the return to the Defendants since it does not appear as though the

Plaintiff has any financial ability to pay any attorney's fees which may be assessed against

him in this case .

19. While weighing a reduction, the language from the Eleventh Circuit's opinion s

in Durrett and Chapman seem to leap off the page and remind this Court that an award o f

fees, in a situation like this, should be commensurate with what this Court believes is

necessary to act as a deterrent to such continued vexatious and bad faith litigation on the

part of the Plaintiff . Based upon the statements made by the Plaintiff in his pleadings and

e-mails as cited by the District Court, this Court is not sure if there is anything which will

deter the Plaintiff from the conduct he has exhibited in this and related litigation he has file d

in this Court. However, will an award of $400,000.00 deter him any more than an award

of $200,000 .00?

20. This Court is willing to give the Plaintiff the benefit of the doubt and reduce the

award of attorney's fees to a level which this Court believes would act as a deterrent to an y

reasonable person, keeping in mind that this Court does not believe that it is going to "cost "

the Defendants any money since the Plaintiff does not appear to have the financial ability

to pay anything . Based upon all of the foregoing, this Court is going to recommend to the

District Court that the total attorney's fees of $403,350.00 be reduced to a total of

$200,000.00.

21. In respect to the Defendants' requests for costs, this Court directs counsel for

the Defendants to the decision of former Eleventh Circuit Chief Judge Hatchett in Johnson

y. Mortham, 173 F.R.D. 313 (N.D. Fla. 1997). In that case, former Chief Judge Hatchet t

was sitting in the Northern District by designation. In going through a bill of costs submitted

by a prevailing party, Judge Hatchett correctly denied the costs to the prevailing party for

lack of supporting documentation as required under the law and under the forms used .

22. In this case, there was no Bill of Costs filed with the original Verified Motion for

Attorney's Fees. There was no supporting documentation nor any itemization of the cost s

aside from this Court having to go through all of the attorney's fees time records and pick

out from those time records bills for costs. That is not the job of this Court.

23. This Court therefore entered an order directing the Defendants to file a

supplemental pleading in which they summarized the fees, itemized the costs and to

submit a Bill of Costs on the appropriate form provided by the Court . The Bill of Costs for m

states that the person seeking the costs should not only itemize the costs, but attach

supporting documentation for each category .

24. The Defendants thereafter filed a Bill of Costs and a further breakdown of their

attorney's fees. However, there is no supporting documentation attached to any of the

pleadings filed by the Defendants which would permit this Court's review concerning the

costs being sought. For example, the Defendants seek $80.00 for witness fees. However,

this Court has nothing to review to determine who the witnesses are and whether or no t

they are seeking travel and other expenses to which they are not entitled . The Bill' of Costs

also seeks exemplification for copies of papers in the amount of $13,475 .49 at 250 per

page . Again, there is no supporting documentation for this Court to look at to determine

what was copied and if those copies were reasonably necessary for the litigation base d

upon the prevailing case law . The final item of costs is for costs incident to the taking of

depositions in the amount of $4,209.18. Again, there is no supporting documentation .

This Court does not know whose depositions were taken, whether or not they were

necessary in this case, and what the charge for those depositions were .

25. This Court has given the Defendants more than ample opportunity to provide

the supporting documentation required under the case law in this circuit. As Judge

Hatchett eloquently stated in Johnson, lack of supporting documentation prevents the

District Court from determining whether these costs were necessarily obtained and were

reasonable. This Court should not have to hold an evidentiary hearing to permit the

Defendants a third bite at the apple to present the documentation this Court has already

previously requested. Therefore, this Court is going to recommend that the request for

costs be denied .

ACCORDINGLY, this Court recommends to the District Court that the Defendants

Verified Motion' for Attorney's Fees be GRANTED and that the Defendants be awarded the

sum of $200,000.00 as reasonable attorney's fees in this case and that the Defendants' motion in respect to costs be DENIED .

The parties shall have ten (10) days from the date of this Report an d

Recommendation within which to file objections, if any, with the Honorable Donald L .

Graham, United States District Judge assigned to this case .

DONE AND SUBMITTED this day of October, 2001, at Fort Pierce ,

Northern Division of the Southern District of Florida .

BANNED OUT OF COUFT DIRECT GOVERNMENT COMMUNICATIONS

During the week of February 5, 2001, Plaintiff knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. Plaintiff appeared at the office of Fred Carino, Human Resource Director of Highlands County and a supervisory employee of a named defendant in this action, and demanded to view his personnel file. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel.

(D.E. 511, ¶6, PG.3)

On February 13, 2001, Plaintiff appeared at Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation.

D.E. 511, ¶7, PG.3)

On February 14, 2001, Plaintiff returned to Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation. This request was made directly to Mr. Canno’s office and not through Defendant Highlands County ’s counsel.

D.E. 511, ¶8, PG.4)

After reviewing the, records, Mr. Mason penned a note to Mr. Carino stating that he wanted unredacted portions of billing records and if he did not get them he will file a lawsuit by February 16, 2001

D.E. 511, ¶9, PG.4)

Mr. Mason returned to Mr. Carino’s office a second time on February 14, 2001 and knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. He demanded to view Defendant Highlands County ’s Insurance Document of Coverage, a document that had previously been produced to him. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel. Notwithstanding, the document was produced to him.

D.E. 511, ¶10, PG.4)

During this visit, Plaintiff became loud, aggressive, disruptive, and questioned the need for Mr. Carino’s presence during his review of the document.

D.E. 511, ¶11, PG.4)

Plaintiffs conduct in violation of this Court’s Orders of June 19, 2000 and July 25, 2000 require a dismissal with prejudice of all of plaintiff’s claims in the above-referenced matter.

D.E. 511, ¶15, PG.5)

Since April 3, 2001 - subsequent to the Court’s March 27th Order - Plaintiff has repeatedly personally contacted supervisory employees and/or the individual Defendants about matters related to this case. Specifically, Plaintiff sent e-mail communications directly to supervisory employees of the Defendants, which discussed the “no trespass warnings” that were issued against Plaintiff, Plaintiffs tortious interference claim, as well as Allen, Norton & Blue’s “track record” of litigating appeals (including Eleventh Circuit appeals). (Exhibit 1).

(D.E. 646, ¶10, PG.3)

Clearly, Plaintiffs “no trespass” and tortious interference claims were an integral part of Plaintiffs present litigation, and involve the same set of facts that Plaintiff continues to rely on in pursuing his present claims. Indeed, Plaintiff’s Fourth Amended Complaint alleged several causes of action based on the issuance of the “no trespass” warnings against Plaintiff. Although Plaintiff’s “no trespass” claims were ultimately dismissed by the Court (D.E.’s #435; 466), Plaintiff has recently indicated his intent to appeal the Court’s dismissal of all claims in his Fourth Amended Complaint. (Exhibit 2). Consequently, the issuance of the “no trespass” warnings against Plaintiff are still part of this present litigation.

(D.E. 646, ¶11, PG.4)

In addition, Plaintiff’s communications regarding Defendants’ counsel’s Eleventh Circuit “track record” clearly have no relevance to his state court claim(s), and pertain only to his federal litigation.

(D.E. 646, ¶12, PG.4)

All of Plaintiff’s claims arise from the same set of facts and are all related, and he should simply not be allowed to continuously disregard Orders of this Court and blatantly challenge the Court’s authority.

(D.E. 646, ¶13, PG.4)

Plaintiff has demonstrated a blatant disregard and disdain for this Court’s authority, as evidenced by Plaintiff’s statement that “ANYBODY, who supports your position. . . is a racist and is part of the problem. I fear no man!!! This includes white men wearing robes” and “I aint afraid of a white men wearing robes of any color.” (Exhibit 1, e-mails dated 4/03/01 at 10:57 a.m. and 4/06/01 at 8:33 a.m. respectively)

(D.E. 646, ¶14, PG.4)

FUTILE ATTEMPTS AT APPELLATE REVIEW

1. The following orders, [D.C. Case No. 99-14027-CV- Graham, ( Doc. 201), ( Doc. 246)] rendered by a Magistrate, are not valid and are violative of the First Amendment, Tenth Amendment, 28 U.S.C. § 636 (b)(1)(A), and fails to meet the legal requirements for a preliminary injunction :

“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). This order is dated

“Plaintiff shall correspond only with Defendants' counsel including any requests for public records.” (DE #246). “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). This order is dated July 25, 2000.

The Eleventh Circuit, US Court of Appeal has had a multiplicity of opportunities to review these orders, but has declined to do so. These orders were reviewable under collateral order doctrine and could have been appealed prior to entry of final judgment because these orders resolved issues independent and easily separable from other claims in the prior pending lawsuit. Ortho Pharmaceutical Corp. v. Sona Distributors, 847 F.2d 1512, 1515 (11^th Cir. 1988). Following is a list[1] of opportunities The Eleventh Circuit has to review these orders:

a. Case No. 01-13664. The Eleventh Circuit rendered a prolix 14 page opinion on October 16, 2002 that does not discuss the validity of these orders. It is quite remarkable in that The Eleventh Circuit is single-mindedly focused on alleged out of court communications with his government by Mason as alleged violations of the orders above while steadfastly refusing to review the validity of these orders. . “On appeal, Mason argues that the magistrate's discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.” See Pg. 10. Even though The Eleventh Circuit admitted the orders in question were being tested for validity on appeal, The Eleventh Circuit refused to review these orders for validity.

b. Case No. 01-15754. Among other things, The Eleventh Circuit again refuses to address this issue. In fact, the entirety of the opinion is: “The "petition for writ of mandamus and petition for writ of prohibition" is DENIED.”

c. Case No. 02-13418. This lawsuit was filed against Judge Graham and his Magistrate, Judge Frank Lynch, Jr., for issuing these orders. In an opinion rendered on Dec. 6, 2002, The Eleventh Circuit again declined to discuss the validity of these orders while asserting in a mere conclusory fashion that the Judges have absolute immunity. In reading the opinion, one can not determine what the judges are immune from.

d. Case No. 01-13664. Mason filed a Appellant’s Renewed Motion For Summary Reversal on or about September 25, 2002. Yet again The Eleventh Circuit refuses to discuss the validity of these orders.

e. Case No. 01-11305. On April 26, 2001, The Eleventh Circuit yet again refused to review the validity of theses orders. “With regard to his requests for relief from the order granting the defendants’ motions for preliminary injunction, which the court construed as preliminary discovery motion, Mason has alternative remedy. He may either comply with the district’s courts discovery order and challenge it on appeal from the final judgment, or refuse to comply with the order and challenge its validity if cited for contempt”. See Mandamus Petition. Was Mason supposed to wait until the end of trial to get his First Amendment rights back? The Eleventh Circuit has answered this question with a resounding no. “[I]t is well established that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” KH Outdoor, LLC v. Trussville, 458 F.3d 1261, 1271-1272 (11th. Cir. 2006); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). The Eleventh Circuit declined to review these orders via interlocutory appeal because they were characterized as “discovery orders” by the district court”. However, it is well established that an appellate court is not bound by a district court’s characterization of its own orders with respect to appellate jurisdiction. United States v. Hylton, 710 F.2d 1106 (5th Cir. 1983); United States v. Jorn, 400 U.S. 470 (1971).

[1] This list is not collectively exhaustive.

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JUDGE DONALD L. GRAHAM AWARDS $200,000 IN ATTORNEY'S FEES AGAINST AN INDIGENT PLAINTIFF BASE UPON A SUA SPONTE ISSUED FILING PRE-FILING INJUNCTION