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JUDGE DONALD L. GRAHAM AND THE ELEVENTH CIRCUIT, USCA OVERULE THE FIRST AMENDMENT]

 

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Judge Donald L. Graham is Above the Law!!!

Judge Graham: "I can take away your right to petition the government!"

 
Judge Donald L. Graham
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Marcellus M. Mason, Jr. of Sebring, Fl. filed an employment discrimination lawsuit against Highlands County Board of County Commissioners and Heartland Library Cooperative and other governmental entities and individual government employees in February 1999.  This case was ultimately assigned Judge Donald L. Graham and Magistrate Frank Lynch Jr., Case No. 99-14027-CV-Graham/Lynch. After protracted litigation, the case was dismissed, not on the merits of the case, but based upon banned and irrelevant out of court communications between Highlands County and Mason.  "R&R" (D.E. 766), Order adopting R&R (D.E 791)
 
In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue  asked the Magistrate to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants.  These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL . 
 
These orders were granted on June 19, 2000 and July 25, 2000.  Both are attached to this email 
 

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 June 19, 2000,

 

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. 

 Additionally, these orders directed that Mason contact these same lawyers prior to making public records request under Florida law.  Between June 19, 2000 and July 25, 2000, Mason repeatedly challenged the jurisdiction of the district court via motions and the like.  Mason asserted that these orders violated the First Amendment, Tenth Amendment, 28 U.S.C. 636 (b)(1)(a), Fla.Stat., Chap 119, and the Florida Const. and they fail to meet the requirement for an injunction.   Judge Graham and the Magistrate absolutely refused to state where they got the legal authority from to issue these orders.   As set out below, the Eleventh Circuit has refused to discuss the validity of these orders either on direct appeal, interlocutory appeal, or mandamus.  It would appear that staff attorneys at the Eleventh Circuit and are making a mockery of the legal system. 

28 U.S.C. 636 (b)(1)(A) clearly states:
Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court except a motion for injunction relief,…” 28 U.S.C. 636 (b)(1)(A).

Judge Graham has held that the above are orders are not "clearly erroneous nor is it contrary to law." Specifically Judge Donald L. Graham held:


On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary Defendants in this action. Upon notice that Plaintiff was violating this order, Defendants filed a Renewed Motion For Preliminary Injunction. On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants' Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. Magistrate Judge Lynch also ordered that Plaintiff shall only correspond with Defendants' counsel.
Plaintiff then moved to rescind the July 25, 2000 order, however, on August 15, 2000, Magistrate Judge Lynch denied Plaintiff's Motion to Rescind. Plaintiff appeals the August 15, 2000 ruling. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch's ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).
See Docket Entry No. 407 dated November 2, 2000.

 

 

 

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BANNED OUT OF COURT 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)

 

 

 


 

 

Litigant's Right to Communicate With Government During Litigation.

Every jurisdiction in the United States has affirmed a citizen’s right to petition the government even in the midst of bitter litigation.  "[T]here is nothing that prohibits one party to a litigation from making direct contact with another party to the same litigation. E.E.O.C. v. McDonnell Douglas Corp., 948 F. Supp. 54 (E.D.Mo. 1996);. See IN RE HURLEY, No. 97-6058 SI (8th Cir. 1997) In Hurley, Discover Card, a creditor litigant in a bankruptcy case, communicated directly with the debtor litigant directly and as result the trial court bankruptcy judge concluded that Discover Card had acted unethically by violating DR 7-104(A)(1) of the ABA Code of Professional
Responsibility. On appeal, the court rejected this reasoning and held that rules of professional conduct does not apply to nonlawyers and parties are free to communicate with other.  Rule 4-4.2, R. Regulating Fla. Bar states:

Also, parties to a matter may communicate directly with each other and a lawyer having independent  justification for communicating with the other party to a controversy with a government agency with a government officials abut the matter. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.

Government remains the servant of the people, even when citizens are litigating against it."   American Canoe Ass’n Inc. v. City of St. Albans, 18 F.Supp. 2d 620 (S.D.W.Va. 1998); Camden v. State Of Md., 910 F. Supp. 1115, 1118 n.8 (D. Md. 1996); Frey v. Dept. of Health & Human Services, 106 F.R.D. 32, 37 (E.D.N.Y. 1985). Holdren v. General Motors Corp., 13 F. Supp. 2d 1192 (D.Kan. 1998)("there is nothing in the disciplinary rules which restrict a client's right to act independently in initiating communications with the other side, or which requires that lawyers prevent or attempt to discourage such conduct."); In Re Discipline Of Schaefer, 117 Nev. 496, 25 P.3d 191 ;117 Nev. Adv. Op. No. 44, 36173 (Nev. 2001) ("parties to a matter may communicate directly with each other."); In Re Hurley, Case No. No. 97-6058 SI, (8th Cir. 1997); Jones v. Scientific Colors, Inc., 201 F.Supp.2d 820 (N.D. Ill., 2001) (citing "EEOC v. McDonnell Douglas Corp., 948 F. Supp. 54, 55 (E.D. Mo.
1996("there is nothing that prohibits one party to a litigation from making direct contact with another party to the same litigation.")); Loatman v. Summit Bank, 174 F.R.D. 592 (D.N.J. 1997); Miano v. AC & R Advertising, Inc, 148 F.R.D. 68, 75 (S.D.N.Y.1993); Pinsky v. Statewide Grievance Committee, 578 A.2d 1075,1079 (Conn. 1990)("Contact between litigants, however, is specifically authorized by the comments under Rule 4.2: ... Also, parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so."); Restatement of the Law (Third) The Law Governing Lawyers, 99. Cmt. K., pg. 76.("No general rule prevents a lawyer's client, either personally or through a nonlawyer agent, from communicating directly with a represented nonclient. Thus, while neither a lawyer nor a lawyer's investigator or other agent may contact the represented nonclient, the same bar does not extend to the client of the lawyer or the client's investigator or other agent.");  Reynoso v. Greynolds Park Manor, Inc, 659 So.2d 1156, 1160 (Fla.App. 3 Dist. 1995)("[p]arties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter."). State v. Miller, 600 N.W.2d 457; 1999 Minn. LEXIS 592 (Minnesota Supreme Court 1999); Stone v. City Of Kiowa, 263 Kan. 502; 950 P.2d 1305; 1997 Kan. LEXIS 177, *34 (Kansas Supreme Ct. 1997); Terra Intern. v. Miss. Chemical Corp., 913 F. Supp. 1306 (N.D.Iowa 1996); Tucker v. Norfolk & Western Ry. Co., 849 F.Supp.1096, 1097-1098 (E.D.Pa.1994); U.S. v. Heinz, 983 F.2d 609, 613 (5th Cir. 1993); U.S. v. Ward, 895 F.Supp. 1000, (N.D. Ill. 1995); Vega v. Bloomsburgh, 427 F. Supp. 593, 595 (D. Mass. 1977).

 in Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir. 1980) (en banc),[1] affirmed Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), this Court declared an injunction that is similar to injunctions issues in this case, (Doc. 201);(Doc. 246), to be unconstitutional.


  

 

 


 

 

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 (11th 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. 01-15754Among 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.”

.  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.

 

  


[2] Decisions by the former Fifth Circuit issued before October 1, 1981 are binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).