Judge Donald L. Graham Intentionally Misrepreents the Amount of Lawsuits Filed

Judge Graham Exaggerates The Amount of Lawsuits "Filed" In Order to Issue A Filing Injunction Sua Sponte

PENDING

A Motion was Presented in the Southern District of Florida To Vacate This Sua Sponte Issued Injunction Under Rule 60(b)(4) on June 8, 2007. See Motion To Vacate, 23 pages. The Government replied on August 2, 2007, The Government's Response does not cite the record, or cite one legal authority for its position. See The Government's Response (5 pages). This matter is online under the court's electronic filing system under Case No. 02-14020, Judge K. Michael Moore.

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. Sua Sponte Issued pre-filing injunctions are clearly invalid because it is well settled that sua sponte issued injunctions violate due process. See mmason.freeshell.org/SuaSponte.htm .

The True Amount of Lawsuits Filed.

At pages 1, 2, and 3 Judge Graham's sua sponte issued pre-filing, he attempts to list eleven lawsuits that he claims were filed in the S.D.Fla. See Docket Entry Number 878, (D.E. # 878)

According to Judge Graham himself, " A Complaint is not considered filed until the filing fee is paid." See 00-14202, (DE #10, dtd. 11-2-2000); 00-14201, (DE #10, dtd. 11-21-2000).

Five of these lawsuits had no filing fee paid, and according to Judge Graham, not filed: (1) 00-14116-CV-Graham, (2) 00-14201-CV-Graham, (3) 00-14202-CV-Graham, (4) 01-14074-CV-Graham, (5) 01-14078-CV-Graham. These 5 lawsuits were dismissed without prejudice and are "non-suits" simply because Judge Graham denied Mason in forma pauperis and stated no reason for this denial.
Of the 6 remaining lawsuits that Judge Graham claim was filed by Mason, Case No. 14240-CV-Graham was filed by Highlands County against Mason.
Of the five remaining lawsuits, 01-14230-CV-Graham, was removed from state court by the Defendants after the injunction of September 20, 2001 where they knew the case would be automatically assigned to Judge Graham.
Consequently, of the remaining four lawsuits, Case Nos. 99-14027-CV-Graham, 99-14042-CV-Graham, 99-14257-CV-Graham, and 99-14314-CV-Graham were consolidated into one case, Case No. 99-14027-CV-Graham.

LEGAL REQUIREMENTS OF FILING INJUNCTIONS

“[B]efore a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court to make "substantive findings as to the frivolous or harassing nature of the litigant's actions… To make such a finding, the district court needs to look at "both the number and content of the filings as indicia" of the frivolousness of the litigant's claims.” De Long, at 912 F.2d 1148. See May vs. Shell Oil Company, 2000 U.S. Dist. LEXIS 14786, *7 (S.D. Fla. 2000)(“courts have a duty to ensure that frivolous or meritless lawsuits do not interfere with their constitutional function:”)[1]; Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985)(holding that an injunction’s purpose is to fashion a remedy to stem the flow of frivolous actions);Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989)(“Litigiousness alone will not support an injunction restricting filing activities.”); Ruderer v. United States, 462 F.2d 897, 899 (8th Cir. 1972) ("affinity for litigation, standing alone, would not provide a sufficient reason for issuing such an injunction.”). Nowhere in the sua sponte issued pre-filing injunction does it identify one single lawsuit that Mason filed that was frivolous. As a matter of act, Judge Graham is precluded by law from asserting that D.C. Case No. 99-14027-CV was without merit because Judge Graham refused to rule on pending summary judgments by both Highlands County and Mason[2]. A court does not have the duty to protect itself from non-frivolous litigation. It is not unlawful to prosecute a meritorious action. See Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). “Access to the courts is a fundamental tenet of our judicial system; legitimate claims should receive a full and fair hearing no matter how litigious the plaintiff may be.” In re Oliver, at 682 F.2d 446. It was Judge Graham himself who adopted the following: “However, at this point, none those other cases have totally dismissed with prejudice. There are viable claims pending in those cases. * * * While there are other pending cases between these parties, there is nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look for justifying injunctive relief.” Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01). Furthermore, at no time during any litigation that Mason was involved in did Judge Graham impose any Fed.R.Civ.P. Rule 11 sanctions or threaten to do so for filing motions that lacked a substantial basis. The district court uses a “scatter gun” that doesn’t hit the essential core requirement for issuing a pre-filing injunction.

[1] Judge Graham is fully aware of the frivolous requirement because it was his court that cited May vs. Shell Oil Company, 2000 U.S. Dist. LEXIS 14786, *7 (S.D. Fla. 2000). See Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01).

[2] See (Doc. 507);(Doc. 667);(Doc. 668) );(Doc. 706);(Doc. 797). Incidentally, the Defendants have tacitly admitted by not refuting with record evidence, that the Plaintiff has made a prima face case. See Defendants’ Summary Judgment Motion, (Doc. 769, Pg. 7).