JUDGE DONALD L. GRAHAM WILL LIE IN A HEARTBEAT IF HE NEEDS TO

 

 

 

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ACTIONS INVOLVING MASON AND HIGHLANDS COUNTY AND OTHERS

No.	Case No.	Cause of Action date	Cause of action
1	99-14027-CIV-Graham, Consolidated with case nos. 99-14042, 99-14257, 99-14314	11-25-98 EEOC NRTS issued 2-11-1999, # 150 99 0755	Mason’s termination: Title VII, 42 U.S.C. §§ 1981, 1983, 1985, 1986	Dismissed on 6-20-01 because Mason is alleged to have communicated with his government directly and not asking the permission of a private for profit lawfirm that lives 90 miles away for permission to request public records under Florida Law.  See (DE #766);(DE #791).  This case has and is generating a host of appeals.  11th Cir Case Nos., 01-13664-A, 02-10868, and 02-14646-A
4	00-14116-CV-Graham	April 18, 2000	42 U.S.C. § 1983, First Amendment and civil conspiracy	Dismissed without prejudice, filing fee not paid and court denied in forma pauperis motion
5	00-14201-CV-Graham filed June 29, 2000	November 12, 1999, EEOC NRTS issued 2-1-2001, # 150 A0 1181	Title VII, failure to hire, (Budget Technician) 42 U.S.C. §§ 1981, 1983, Retaliation	Dismissed without prejudice, filing fee not paid and court denied in forma pauperis motion
6	00-14202-CV-Graham			Dismissed without prejudice, filing fee not paid and court denied in forma pauperis motion
7	01-14074-CV-Graham Petition for Mandamus filed March 7, 2001	November 25, 1998-March 6, 2001	Mason sought name-clearing hearing and hearing concerning discharge	Voluntarily dismissed without prejudice by Plaintiff[1], filing fee not paid. Defendants wanted this petition filed in state court.
	01-14078-CV-Graham filed February 19, 2001	September 2000 EEOC NRTS issued 2-1-2001, # 150 A1 0650	Title VII, failure to hire, (Housing Coordinator) 42 U.S.C. §§ 1981, Retaliation	Dismissed without prejudice, filing fee not paid and court denied in forma pauperis motion
8	00-14240-CV-Graham Initiated by Highlands County against Mason	???	???	Dismissed as frivolous
9	01-01-14224-CV-Middlebrooks			Dismissed without prejudice, filing fee not paid and court denied in forma pauperis motion
10	01-14310-CV-Graham Filed in state court on or about October 4, 2001 under Case No. GC-00-269, Removed October 19, 2001	March 28, 2001, EEOC NRTS issued 9-6-01, #150A13119[2]	Sign Technician	Dismissed with prejudice, court claimed res judicata based upon Case No. 99-14027-CV-Graham. This case is now pending appeal in the 11th Cir., Case No. 02-13314-I
11	02-14049-CV-Graham Filed in state court on or about January 11, 2002 under Case No. GC-01-587, Removed Feb. 11, 2002	(1) June 19, 2000[3] (2) July 25, 2000[4] (3) November 12, 1999, EEOC NRTS issued 2-1-2001, # 150 A0 1181	Counts 13-15, 42 U.S.C. §§ 1983, 1985, 1986, first amendment; Counts 1-12, Title VII, (Budget Technician)failure to hire, 42 U.S.C. §§ 1981, 1983, 1985, 1986	Dismissed with prejudice[5]. (DE #52);(Doc. #56).  This case is now pending appeal in the 11th Cir., Case No. 02-13418-BB
12	01-14230-CV-Graham Filed in state court on or about July 11, 2001 under Case No. GC-01-337, Removed October 8, 2001	June 21, 2001- July 31, 2001	42 U.S.C. §§ 1983, 1985, 1986 Highlands County’s white folks would not allow Mason, an African American warrior, to use the Sebring Public Library	This case was dismissed with prejudice[6] based upon res judicata and Case No. 99-14027[7].

 

The evidence or record, not Graham’s characterizations, shows the following:

·         Of the eleven lawsuits “filed” by Mason in the S.D.Fla., four lawsuits were consolidated, 99-14027-CIV-Graham, 99-14042, 99-14257, 99-14314.  In reality there were only eight lawsuits filed Mason, but whose counting?  Answer, Graham.

·         Of the eight lawsuits “filed” by Mason in the S.D.Fla., 5 were dismissed without prejudice and are “non-suits” simply because this Court denied Mason in forma pauperis and stated no reason for this denial: (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.  Graham made crystal clear, “A Complaint is not considered filed until the filing fee is paid.  Herrick v. Collins, 914 F.2d 228 (11^th Cir. 1990).”  See 00-14202, (DE #10, dtd. 11-2-2000); 00-14201, (DE #10, dtd. 11-21-2000).  The Court is now left with the possibility of only four “filed” lawsuits filed by Mason, 99-14027-CV-Graham, 01-14310-CV-Graham, 02-14049-CV-Graham, 01-14230-CV-Graham.

·         Of the four lawsuits “filed” by Mason in the S.D.Fla., two are being double-counted, 01-14310-CV-Graham and 02-14049-CV-Graham as Case No. 01-14310-CV-Graham is the exact same lawsuit as the previously dismissed without prejudice Case No. 00-14201-CV-Graham; Case No. 02-14049-CV-Graham is the exact same lawsuit as the previously dismissed without prejudice 01-14224-CV-Middlebrooks. 

·         Penultimately, of the four lawsuits “filed” by Mason in the S.D.Fla., Case Nos. 99-14027-CV-Graham, 01-14310-CV-Graham, 02-14049-CV-Graham, and 01-14230-CV-Graham, three were not “filed” Mason, but were actually removed to the S.D.Fla by the Defendants themselves after this Court issued an injunction on September 20, 2001 barring Mason from filing lawsuits in the Southern District of Florida against these Defendants, Highlands County and others.  The reality is that of the four lawsuits filed in the S.D.Fla., Mason filed only one, 99-14027-CV-Graham.  The Defendants themselves caused three lawsuits to be filed in the S.D.Fla, 01-14310-CV-Graham, 02-14049-CV-Graham, and 01-14230-CV-Graham. 

Lastly, and most importantly, on September 20, 2001, (DE #878), when Graham issued his injunction or Omnibus Order, there were only two cases that actually been filed, Case Nos. 99-14027 and 01-14230-CV-Graham, which was removed to S.D.Fla. by the Defendants.  Case Nos. 01-14310-CV-Graham, 02-14049-CV-Graham, removed cases, had not been filed by anyone until October 4, 2001 and January 11, 2002, respectively.

 

 

Firstly, the injunction itself stated that is was issue sua sponte.  This fact alone will cause this injunction to be vacated by the Eleventh Circuit.  See Motion , Exhibit 4, page 3, (Doc. 878).  “A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees…”  Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991).  This Court’s own cases, and other Courts as well also supports this notion.  The Eleventh Circuit has expressly stated that “‘[t]he key to unlocking a court's inherent power is a finding of bad faith.’(internal citations omitted)‘[I]nvocation of a court's inherent power requires a finding of bad faith.’ A court should be cautious in exerting its inherent power and ‘must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees. ’Because the court's inherent power is so potent, it should be exercised ‘with restraint and discretion.’"  Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001).“In addition, the accused must be given an opportunity to respond, orally or in writing, to the invocation of such sanctions and to justify his actions.”  In Re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995).; Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1320 (11th Cir. 2002)(“for the imposition of sanctions to be proper, a court ‘must comply with the mandates of due process….’”); Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998); First Bank Of Marietta v. Hartford Underwriters Insurance Company, 2002 U.S. App. LEXIS 21117, *25; 2002 FED App. 0356P (6th Cir. 2002)(“ A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process…”); In Re Atlantic Pipe Corp., 304 F.3d 136, 143 (1st Cir. 2002)(“[A] district court's inherent powers are not infinite… the use of inherent powers must comport with procedural fairness.”).  It couldn’t be anymore clear that Mason was deprived of due process because the order expressly stated that it was issued sua sponte.  See Motion , Exhibit 4, page 3, (Doc. 878, pg. 3)(“THIS CAUSE came before the court sua sponte.”).  As a matter of fact, Mason has never had the opportunity to attack this illegal order even subsequent to its enactment.  Generally, a judgment is void under Rule 60(b)(4) "If the court that rendered it lacked jurisdiction if the subject matter, or the of the parties, of it acted in a manner inconsistent with due process of law." (citations omitted).  A judgment is also void for Rule 60(b)(4) purposes if the rendering court was powerless to enter it.” Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001); Oakes v. Horizon Financial, 259 F.3d 1315, 1319 (11th Cir. 2001); U.S. v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 1990); Beller & Keller v. Tyler, 120 F.3d 21, 23 (2nd Cir. 1997); Union Switch & Signal v. Local 610, 900 F.2d 608, 612 n.1 (3rd Cir. 1990); Eberhardt v. Integrated Design & Const., Inc. 167 F.3d 861, 867 (4th Cir. 1999); New York Life Ins. Co. v. Brown, 84 F.3d 137, 143 (5th Cir. 1996); Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998); General Star v. Administratia Asigurarilor, 289 F.3d 434, 440 (6th Cir. 2002); Federal Election Com'n v. Al Salvi For Senate, 205 F.3d 1015, 1019 (7th Cir. 2000); Chambers v. Armontrout, 16 F.3d 257, 261 (8th Cir. 1994); U.S. v. Berke, 170 F.3d 882, 883 (9th Cir. 1999); Gschwind v. Cessna Aircraft Co. 232 F.3d 1342, 1346 (10th Cir. 2000).  “Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ … can be won only if judges honor the Constitution.”  Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting).   Courts have specifically held that injunctions of the type entered here require due process prior to its issuance.  See Cok v. Family Court Of Rhode Island, 985 F.2d 32, 35 (1st Cir.1993)(Adequate notice may be informal but should be afforded.); In re Hartford Textile Corp., 613 F.2d 388, 390 (2d Cir. 1979);Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987); In re Oliver, 682 F.2d 443, 446 (3rd Cir. 1982)(vacating an injunction issued sua sponte for lack of prior notice notwithstanding the fact that the court believed that the injunction could be justified); Brow v. Farrelly, 994 F.2d 1027, 1038 (3rd Cir. 1993)(“ If the circumstances warrant the imposition of an injunction, the District Court must give notice to the litigant to show cause why the proposed injunctive relief should not issue.”);;De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990); Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir. 1989)(litigant “is entitled to notice and an opportunity to oppose the court's order before it is instituted.”);Werner v. State Of Utah, 32 F.3d 1446, 1448 (10th Cir. 1994)(“This court approves restrictions placed on litigants with a documented lengthy history of vexatious, abusive actions,… and the plaintiff is given notice and an opportunity to respond to the restrictive order.”); Procup v. Strickland, 792 F.2d 1069 (11th Cir. 1986)(noting that the district court issued an order to show cause prior to rendering the injunction).  In De Long, infra, 912 F.2d 1147, the court remanded the case to the district court because the record failed, as here, to show that the Plaintiff was provided with “adequate notice and a chance to be heard before the order was filed.”  In Cok, the Court vacated injunction, where as here, it was issued sua sponte, notwithstanding the fact that the Court felt that injunction may have been proper.  Moreover, the order is defective because it is poorly documented and fails to make the requisite finding of frivolousness.  “Absent extraordinary circumstances, such as a demonstrated history of frivolous and vexatious litigation, or a failure to comply with sanctions imposed for such conduct, a court has no power to prevent a party from filing pleadings, motions or appeals authorized by the Federal Rules of Civil Procedure.”  Richardson Greenshields Securities, Inc v. Lau, 825 F.2d 647, 652 (2nd Cir. 1987).  It is not unlawful under 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.  “[A]ffinity for litigation, standing alone, would not provide sufficient justification to issue an injunction.”  Castro v. United States, 775 F.2d 399, 408 (1st Cir. 1985);  In re Oliver, at 682 F.2d 446 (“litigiousness alone would not support an injunction restricting his filing activities.”); Tripati, at 878 F.2d 353(“Litigiousness alone will not support an injunction restricting filing activities.”); Ruderer v. United States, 462 F.2d 897, 899 (8th Cir. 1972); Carter v. Electron, Inc., 452 F. Supp. 944, 990 (S.D. 1977).  “An adequate record for review should include a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed.”  De Long, at 912 F.2d 1148; Cok v. Family Court Of Rhode Island, 985 F.2d 32, 35 (1st Cir.1993)(requiring a sufficiently developed record be presented for review); Tripati, at 878 F.2d 353 (“injunctions are proper where the litigant's abusive and lengthy history is properly set forth.).  Issuing an injunction of the type here requires a specific finding that the litigant has filed multiple frivolous actions.  Cok, at 985 F.2d 32, 35(holding that it would have been helpful had the court identified what previously filed frivolous cases); Castro v. United States, 775 F.2d 399, 408 (1st Cir. 1985) (“an injunction barring a party from filing and processing frivolous and vexatious lawsuits may be appropriate.”); In re Oliver (“a continuous pattern of groundless and vexatious litigation can, at some point, support an order against further filings of complaints without the permission of the court.”); 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);Kondrat v. Bvron, 587 F. Supp. 994, 998 (N. D. Ohio 1984)(noting that injunctions are proper when “ the plaintiffs had filed an uniquely large number of frivolous cases”); De Long, at 912 F.2d 1148.  Not only has Judge Graham failed to state what frivolous actions Mason has filed, Judge Graham does not, because he cannot, even identify a single motion that Mason has ever filed to be without merit.  Judge Graham would have a more compelling case were he able to show that he had imposed or threatened to impose Rule 11, Fed.R.Civ.P. sanctions upon Mason for filing meritless actions or motions, but Judge Graham makes no such claim.  As a matter of fact, Judge Graham also failed to act on pending summary judgment motions.  (Doc. 667); (Doc. 668); (Doc. 706); (Doc. 797);(Doc. 769);(Doc. 770).  In other words, Judge Graham is saying, “I don’t give a damn about the merits of your lawsuit, I’d rather speculate on your motives.”  The law is clear that if a court invokes it inherent powers it must afford due process to the litigant.  Moreover, in compliance with this injunction, Mason has filed a motion for a due process hearing, but Judge Graham has failed to act.  There is no law compelling Mason to wait forever on a Judge who has proven himself to be hostile to Mason.