JUDGE DONALD L. GRAHAM:
"I Can Deny In Forma Pauperis for Any Reason I Damn Well Please"
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In yet another landmark and "DO NOT PUBLISH" Opinion, the Eleventh Circuit [Judges Gerald Bard Tjoflat, Judge Susan Black and Judge Ed Carnes,] and Judge Donald L. Graham have have held that a District Judge [Graham] need not provide a reason for denying an indigent in forma pauperis status so long as the District Judge orders the indigent to pay the filing fee, U. S. Supreme Court and Congress be damned.
The Eleventh Circuit, like Judge Graham, has a history of arbitrary and unlawful denials of in forma pauperis applications, thereby thwarting access to the Courts. See Killing Appeals page.
ARBITRARY IFP DENIALS BY JUDGE DONALD L. GRAHAM
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Case No. |
Docket Entry # |
URL |
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1 |
00-14201 |
9 |
|
|
2 |
00-14201 |
12 |
|
|
3 |
00-14201 |
13 |
|
|
4 |
00-14201 |
20 |
|
|
5 |
00-14201 |
22 |
|
|
6 |
99-14027 |
877[3] |
http://www.geocities.com/mcneilmason/secret/99-14027/de877.pdf |
|
7 |
99-14027 |
906[4] |
|
|
8 |
00-14202 |
9 |
|
|
9 |
00-14202 |
10 |
|
|
10 |
00-14202 |
12 |
|
|
11 |
00-14202 |
19 |
|
|
12 |
00-14202 |
22 |
|
|
13 |
00-14116 |
10 |
|
|
14 |
00-14240 |
43[5] |
|
|
15 |
01-14230 |
57[6] |
|
|
16 |
01-14310 |
101 |
|
|
17 |
01-14078 |
8[7] |
|
|
18 |
99-14027 |
939[8] |
Definition of In Forma Pauperis
In forma pauperis (IFP) is a legal term derived from the Latin phrase in the character or manner of a pauper.[1] In the United States, the IFP designation is given by both state and federal courts to someone who is without the funds to pursue the normal costs of a lawsuit or a criminal defense.[2] The status is usually granted by a judge without a hearing, and entitles the person to a waiver of normal costs, and sometimes in criminal cases the appointment of counsel. URL: http://en.wikipedia.org/wiki/In_forma_pauperis.
Legal Standard on In Forma Pauperis
28 U.S.C. § 1915(e) states: (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that— (A) the allegation of poverty is untrue; or (B) the action or appeal— (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
The United States Supreme Court has stated:" The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts. Toward this end, 1915(a) allows a litigant to commence a civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit...1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious."" Neitzke v. Williams, 490 U.S. 319, 324 (1989). [a] court may dismiss a claim as factually frivolous only if the facts alleged are "clearly baseless," [internal citations omitted] , a category encompassing allegations that are "fanciful," "fantastic, "and "delusional,. [A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them. An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff's allegations unlikely. Some improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be "strange, but true; for truth is always strange, Stranger than fiction. Denton v. Hernandez, 504 U.S. 25 (1992).
According to the Eleventh Circuit and Judge Ed Carnes 28 U .S .C . § 1915(a):.
That statute provides that any court of the United States may authorize the commencement of a proceeding without prepayment of fees by a person who submits a affidavit that includes a statement of assets that the person possesses and that the person is unable to pay such fees . The Court, however, may dismiss the case at any time if it determines that the allegation of poverty is untrue or the action or appeal is frivolous. See § 1915(e)(2)(A) & (B)See Opinion, Case No. 01-11305, dtd. April 26, 2001.
NARRATIVE OF JUDGE GRAHAM'S UNLAWFUL IFP DENIALS
Judge
Graham has shown contempt for Congress and the U.S. Supreme Court by arbitrarily denying in forma pauperis
applications/motions.
It appears that Judge Graham has
the power to create, by apparent fiat, his own rules and laws when he sees fit with respect to in forma pauperis applications.
Quoting Herrick v. Collins, 914
F.2d 228 (11th Cir. 1990), a case cited by Judge Graham to Mason on least two occasions,
see 00-14202,(DE
#10, dtd. 11-2-2000); 00-14201, (DE
#10, dtd. 11-21-2000), 28 U.S.C. § 1915
(1988) states in pertinent part:
(d) The court may . . . dismiss the case if . . . satisfied that the action is frivolous or
malicious. Consequently, it is clear that Judge Graham’s knows the rules with respect
to granting in forma pauperis. "The federal in forma pauperis 28 U.S.C. §
1915, allows an indigent litigant to commence a civil or criminal action in
federal court without paying the administrative costs of proceeding with the
lawsuit. The statute protects against abuses of this privilege by allowing a
district court to dismiss the case "if the allegation of poverty is untrue,
or if satisfied that the action is frivolous or malicious." Denton at 504
U.S., 27. According to rule of law, an in forma pauperis petition/motion may
only be denied if allegation of poverty is untrue or if the action is frivolous.
However, Judge Graham has shown contempt and disdain for the Congress and the
U.S. Supreme Court by ignoring black letter law. Consider the following for
examples, and this list is not collectively exhausted: (D.E. 9, Case No. 00-14201-CIV-GRAHAM/LYNCH) (D.E. 9, Case No. 00-14202-CIV-GRAHAM/LYNCH) (D.E. 43, Case No. 00-14240-CIV-GRAHAM/LYNCH) (D.E. 630, Case No. 99-14027-CIV-GRAHAM/LYNCH) (D.E. 877, Case No.
99-14027-CIV-GRAHAM/LYNCH) (This order denied three
motions to proceed IFP, (DE #796, #799,& #811) (D.E. 906, Case No. 99-14027-CIV-GRAHAM/LYNCH) (D.E. 939, Case No. 99-14027-CIV-GRAHAM/LYNCH) (D.E. 8, Case No.
99-14078-CIV-GRAHAM/LYNCH). Judge Graham has attempted to make his own statutes with respect to denying
in forma pauperis motions. (D.E. 8, Case No.
99-14078-CIV-GRAHAM/LYNCH). Judge Graham’s legal standard for denying in forma pauperis is half-true,
consequently misleading. Federal Judges do not have unfettered discretion to
deny in forma pauperis status as Judge Graham suggests. “While a trial court
has broad discretion in denying an application to proceed in forma pauperis
under 28 U.S.C.A. § 1915, it must not act arbitrarily and it may not deny the
application on erroneous grounds…” Pace v. Evans, 709 F.2d 1428 (11th Cir.
1983). Judge Graham fails to identify any claims that are frivolous, he simply,
in a mere conclusory fashion, speculates about Mason’s motive. Some of Judge
Graham’s reasoning would appear to be because I denied you in the past I can
keep denying because I think you are abusing the system. “[I]n forma pauperis
status should be evaluated on a case by case basis.” Cofield v. Alabama Public
Service Commission, 936 F.2d 512,518-519 (11th Cir.1991). Cofield explicitly
rejects any prospective denials of in forma pauperis status. “[A] court may
dismiss a claim as factually frivolous only if the facts alleged are
"clearly baseless,… a finding of factual frivolousness is appropriate
when the facts alleged rise to the level of the irrational or the wholly
incredible…An in forma pauperis complaint may not be dismissed, however,
simply because the court finds the plaintiff's allegations unlikely…” Denton
at 504 U.S. 32. This was an employment discrimination lawsuit, among other things.
Mason applied for a job with the Highlands County Board of County
Commissioners as a Budget Technician and was denied an interview and the
job. Mason filed a complaint with the EEOC, who issued a Notice of
Right to Sue Letter, #150 AO 1181, on November 12, 1999. Judge Graham denied in forma pauperis
status in
Dist. Ct. Case No. 00-14201-CIV-Graham. Judge Graham denied IFP twice
in the same case, both are documented below. Mason's in forma pauperis states the following:
This denial was appealed to the Eleventh Circuit, Case No. 01-16512. Judge Graham
eschewed the both the statute (Congress) and the United States Supreme Court and
refused to find or support that the legal requirement that either Mason's allegation of poverty was
untrue or that the lawsuit was frivolous. Quoting Judge Graham directly, and its entirety, Judge's Graham's order denying in forma pauperis
states: Even the Defendant/Appellees did not know the reason for Judge Graham's
denial of IFP. "The District Court apparently determined
that Mason did not qualify or warrant IFP status based upon
Mason's own affidavits. "
In Martinez, v. Kristi Kleaners, Inc.,
364 F.3d 1305 (11th Cir. 2004), the Eleventh Circuit vacated and
remanded Judge Daniel T. K. Hurley's denial of an IFP application for
failing to state a reason for the denial. However, Judge Donald L.
Graham in the same Court, Southern District of Florida, did the exact thing
as Judge Hurley, but Judge Graham was affirmed. This fact can be
verified in five minutes by reading mmason.freeshell.org/martinez.htm
. Incidentally, Judge Graham, as documented above, has a history of denying
in forma pauperis petitions without providing any explanation.
Mason's in forma pauperis application states the following:
On October 31, 2001, the Eleventh Circuit denied a motion for rehearing, while stating only:
This kind of legal reasoning, hubris, and dishonesty simply can not be
tolerated in a free society and must be stopped. This is why the
legal system is under attack. This paper makes absolutely clear
that judges simply can not be trusted to discipline other judges.
Docket
No. 05-0020
Judge J. L. Edmondson does not think the string of
arbitrary denials of IFP is covered under the Judicial Misconduct and Disability
Act; [3]
This
order actually arbitrarily denies three different IFP motions. See (DE #796, #799,̫ ). [4]
This is
a really outrageous abuse of the IFP statute and an insidious attack my
right
for appellate review in that this IFP denial takes away my right to
oppose a
whopping $200,000 attorney’s fees judgment that Graham imposed against
me. [5]
In
addition to denying the in forma pauperis application, Graham also
expressly
refuses to disclose his reasons for denying the IFP application by
denying a
Defendant's Motion for Clarification on Defendant's Motion to Proceed
on Appeal
In Forma Pauperis by stating: “Defendants Motion for Clarification on
Defendant's Motion to Proceed On Appeal In Forma Pauperis:is DENIED as
MOOT. ”. [6]
This was
a particularly offensive abuse of the IFP statute because Graham
disallowed me
the opportunity fight off a judgment awarding attorney’s fees of
$5340.00 when
it knew for a fact that such a award would bankrupt Mason. (DE #48, pg.
4);(DE
#51). [7]
I had to
file two motions for a ruling on his motion to proceed in forma pauperis. (DE #5);(DE #7). [8]
This
arbitrary denial comes despite the fact that Graham knows he has four
372(c)
pending.
THIS CAUSE came before the Court upon Plaintiff’s Motion to proceed in
forma pauperis (D.E. #2). UPON CONSIDERATION of the motion and the pertinent
portions of the record, it is ORDERED AND ADJUDGED that Plaintiff’s Motion be,
and the same is hereby, DENIED.
THIS CAUSE came before the Court upon Plaintiff’s Motion to proceed in
forma pauperis (D.E. #2). UPON CONSIDERATION of the motion and the pertinent
portions of the record, it is ORDERED AND ADJUDGED that Plaintiff’s Motion be,
and the same is hereby, DENIED.
THIS CAUSE came before the court upon Defendant’s Motion to Proceed on
Appeal In forma pauperis (D.E. # 41) and Defendant’s Motion for Clarification
on Defendant’ s Motion to Proceed on Appeal In forma pauperis. THE COURT has
reviewed Defendant’s Motion, the pertinent portions of the record and is
otherwise fully advised in the premises. Defendant Marcellus M. Mason Jr. has
several cases pending in the Court in which his various motions to proceed in
forma pauperis have repeatedly been denied. As Defendant is well aware, the
Court has already determined that he does qualify to proceed without the payment
of fees. Accordingly, it is, ORDERED AND ADJUDGED that Defendant’s Motion to
Proceed On Appeal In forma pauperis is DENIED.
THIS CAUSE having come on to be heard upon the aforementioned Motion, and
this Court having reviewed the Motion, and noting that on January 5, 2001, this
Court issued an order in Case No . 00-1420 1 and Case No . 00-14202 denying
Plaintiff's motions to proceed in forma pauperis on appeal, and further noting
that this Court has compared Plaintiff's affidavit attached to the instant
motion wit h his affidavits previously filed in Case Nos . 00-14201 and 00-14202
and has found no change in Plaintiff's financial condition other than an
installment payment to Royal's Department Store does no t appear in the most
recent affidavit, and being otherwise advised in the premises, it is hereby
ORDERED AND ADJUDGED that Plaintiff's Motion to Proceed in forma pauperis DENIED
.
THIS CAUSE having come on to be heard upon an Order of Reference from the
Honorable Donald L . Graham, dated September 10 ,2001, and this Court having
reviewed the aforementioned Motions and the pertinent portions of the record,
and noting that in other actions filed by Plaintiff, Judge Graham has denied
Plaintiff' s motions to proceed in forma pauperis (Case Nos . 00-14116, 00-14201
, 00-14202, 00-14240), and further noting that this Court has compared
Plaintiff's previously filed IFP motions and accompanying affidavits with the
instant motion and affidavit and has found no relevant difference, and being
otherwise advised in the premises , it is hereby ORDERED AND ADJUDGED that
Plaintiff's Motions to Proceed in Forma Pauperis are DENIED .
THIS CAUSE came before the Court upon Plaintiff's Motion for Permission to
Appeal in forma pauperis and Affidavit (D.E. #899). THE COURT having considered
the motion, the pertinent portions of the record and being otherwise fully
advised in the premises, it is, ORDERED AND ADJUDGED that Plaintiff's Motion is
DENIED.
THE COURT having reviewed the issues at hand and being fully advised in the
premises, it is hereby ORDERED AND ADJUDGED that Plaintiff's Motion for Leave to
Appeal In forma pauperis is Denied. On June 20, 2001, in view of Plaintiff's
repeated refusal to comply with the Court's rules and orders, the Court
dismissed Plaintiff's case with prejudice. On April 17, 2003, the United States
Court of Appeals for the Eleventh Circuit denied Plaintiff's appeal and affirmed
this Court's Order dated June 20, 2001.
Plaintiff in this case, like the plaintiff in Free, has filed numerous cases,
each against the same or similar defendants and each relating to similar issues.
The Court has already made a determination on Plaintiff's substantive claims,
however, Plaintiff is insistent continuing to litigate his cause. This is an
abuse of process which the Court refuses to subsidize. Accordingly, it is
ORDERED AND ADJUDGED that Plaintiff's Motion to Proceed In forma pauperis is
DENIED.
"The privilege of proceeding in forma pauperis is a matter within the
discretion of the trial court. . " Weller v. Dickson, 314 F.2d 598, 600
(9th Cir. 1663). In ruling on a motion to proceed in forma pauperis, the Court
may look to whether the Plaintiff has abused the judicial process through the
current and previous filings. See Free v. United States, 879 F.2d 1535, 1536
(7th Cit. 1989).
BACKGROUND AND APPEAL
Dist. Ct. Case No.
00-14201-CIV-Graham
Eleventh Circuit, Case No. 01-16512
"that in support my request to proceed without prepayment of fees
or costs under 28 USC 1915 I declare that I am unable to pay the costs
of these proceedings and that I am entitled to the relief sought in the
complaint/petition/motion."
On July 3, 2000, Plaintiff filed his Complaint and a Motion to Proceed In Forma Pauperis ("IFP
Motion").1 Prior to the Court ruling on Plaintiff's
IFP Motion, the Clerk of the Court issued Plaintiff a Summons in this
matter, without requiring Plaintiff to pay the requisite filing fee.
The summons was then served on Defendant. Defendant now moves to quash
summons arguing that the summons should have never been issued because
Plaintiff failed to to file in forma pauperis. As a result, the summons
is defective and should be quashed. Therefore, it is ORDERED AND
ADJUDGED that Defendant's Motion to Quash summons is hereby GRANTED. It
is further, ORDERED AND ADJUDGED that Plaintiff is required to pay the
requisite filing fee within ten (10) days from the date of this Order
or his Complaint will be dismissed. If Plaintiff pays the requisite
fees, Plaintiff will then need to perfect service on Defendant in
accordance with the Federal Rules of Civil Procedure.
see order [pdf] (D.E.
#10).
1Concurrent with the issuance of this order, the
Court is issuing an order denying Plaintiff's Motion to Proceed In
Forma Pauperis.
Judge Graham's Order
and Reason for Denying IFP Judge Graham's entire reason for denying in forma pauperis is the
following:
THIS CAUSE came before
the Court upon Plaintiff's Motion to Proceed in forma pauperis (D.E. #
2).UPON CONSIDERATION of the motion and the pertinent portions of the
record, it is ORDERED AND ADJUDGED that Plaintiff's Motion be, and the
same is hereby, DENIED.
see [pdf]
(D.E. #9).
APPEAL OF IFP DENIAL
CASE NO. 01-16512
See
Appellees'
Brief, pg. 10.
LEGAL BRIEFS ONLINE
Appellant's
Initial Brief
Appellees'
Brief
Appellant's
Reply Brief
The Eleventh Circuit affirmed Judge Graham's arbitrary denial of in
forma pauperis to Mason for the following concocted and legally
insufficient reason [see [pdf] September
7, 2001 "Opinion"]:
In his initial brief, Mason contends that
because the trial court provided no explanation in denying his motion,
the district court acted arbitrarily and its decision must be reversed.
In his reply brief Mason argues for the first time that he did not
follow the district court's order to pay the filing fee because he
could not afford to pay the filing fee...Further, this Court does not
address issues raised for the first time.
September 7, 2001 Order [embedded]
"that in support my request to proceed without prepayment of fees
or costs under 28 USC 1915 I declare that I am unable to pay the costs
of these proceedings and that I am entitled to the relief sought in the
complaint/petition/motion."
The petition(s) for rehearing filed by Appellant is DENIED.
See
Order Denying Rehearing
.
In this complaint Mr. Mason, although worded
differently that his previous complaints, re-makes the allegation that Judge
Graham denied him access to the courts by summarily denying a string of motions
for in forma pauperis and that Judge Graham did not identify either of the
only two reasons allowed for such denial. The allegations of this Complaint are
"directly related to the merits of a decision or procedural ruling"
and "successive". Therefore, pursuant to Chapter 16 of Title 28 U.S.C.
352(b)( 1 )(ii) and Addendum III Rules 4(b)(2) and 18(c), this Complaint is
DISMISSED.
At this point, Judge Edmondson knows that Judge Graham has disrespected clearly
established law on multiple occasions and has gotten away with it.
