JUDGE DONALD L. GRAHAM SAYS HE DOESN'T GIVE A DAMN
ABOUT THE LAW ON ISSUING PRE-FILING INJUNCTIONS
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On September 20, 2001, Judge Donald L. Graham issued a pre-filing injunction sua sponte or own his motion without notice and opportunity to the litigant, Marcellus M. Mason. "THIS CAUSE came before the Court sua sponte." Case No. 99-14027-CV-Graham, Docket Entry No. 878, pgs. 3.
COURTS HAVE UNIVERSALLY REJECTED SUA SPONTE PRE-FILING INJUNCTIONS
A pre-filing injunction “entered against a litigious plaintiff is "an extreme remedy," which "should be used only in exigent circumstances…[and] the litigant in question must first be afforded notice and an opportunity to respond. ” Heimbecker v. 555 Associates, Civil action No. 01-6140 (E.D. Pa. 3/26/2003) (E.D. Pa., 2003) (citing Chipps v. U.S.D.C. for the M.D. of Pa., 882 F.2d 72, 73 (3d Cir. 1989)). It is immaterial that the sua sponte issued pre-fling injunction may or may not be otherwise justified because “proper procedures must be followed.” Finn v. Gunter, 722 F.2d 711 (C.A.11 (Fla.), 1984)(insisting on due process and refusing to affirm a summary judgment due to alleged ultimate futility ). In a very long line of cases, U.S. Circuit Courts of Appeal and other jurisdictions have consistently, without variation, rejected sua sponte issued filing injunctions or pre-filing injunctions issued without notice and opportunity to respond. In Weaver v. Sch. Bd., 2006 U.S. App. LEXIS 8128 (unpublished) (11th Cir. 2006), the Court held that a litigant was entitled to “notice and an opportunity to be heard” before a restriction was imposed on the litigant’s ability to challenge an injunction. See Cok v. Family Court of Rhode Island, 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997)(vacated because the litigant “was not "warned or otherwise given notice that filing restrictions were contemplated”); MLE Realty Assoc. v. Handler, 192 F.3d 259,262 (2nd Cir., 1999)(vacating a sua sponte issued injunction because notice was not given). Lau v. Meddaugh, 229 F.3d 121, 123 (2nd Cir., 2000)(vacating a sua sponte issued injunction); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (“district court may not impose a filing injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to be heard.”). Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); Williams v. Cambridge Integrated Services Group, 2005 U.S. App. LEXIS 18624,*7;148 Fed. Appx. 87 (3rd Cir. 2005)( reversing and holding that: “Sufficient notice and opportunity to be heard are essential prerequisites to the entry of a pre-filing injunction.”); Gonzalez v. Usher Feiner, 2005 U.S. App. LEXIS 8370,*12;131 Fed. Appx. 373 (3rd Cir. 2003)(reversing a sua sponte issued injunction and questioning whether a pre-filing injunction is warranted based on Gonzalez's history of filing six frivolous cases in ten years.). “It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction.” In Re Head, 2006U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir.), cert. denied, 498 U.S. 1001, 111 S.Ct. 562, 112 L.Ed.2d 569 (1990)(reversed for failure to notice of pre-fling injunction); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is “entitled to notice and an opportunity to oppose the court's order before it is instituted.”); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding “If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.”); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that “limiting the constitutional right of access to the courts, essential due process safeguards must first be provided”); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given’); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions "may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.").
Courts have felt that the notice and opportunity to respond
was so important that they have reversed district courts even where they
thought the pre-filing injunction was otherwise valid.
See
Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982);
Scott v. Wells Fargo Home Mortgage , 2005
U.S. App. LEXIS 15709,*;143
Fed. Appx. 525(4th Cir. 2005);
Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir.
1987).
ORDERS ISSUED IN VIOLATION OF DUE PROCESS ARE VOID
It is well settled that an order issued in violation of due
process is void. “Generally,
a judgment is void under Rule 60 (b) (4) “if the court that rendered it
lacked jurisdiction of the subject matter, or of the parties,
or if acted in a manner inconsistent with due process of
law. (emphasis added)” E.g.,Burke v.
Smith, 252 F.3d 1260 (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);
Simer v. Rios,
661 F.2d 655, 663-4 (C.A.7 (Ill.), 1981)(“a judgment is void for purposes
of Rule 60(b)(4) is if the judgment was entered in violation of due
process… Because this notice never was delivered the judgment must be
vacated as void.”). “'No judgment of a court is due process of law, if
rendered without jurisdiction in the court, or without notice to the
party.” Old Wayne Mut. Life Ass'n v.
McDonough, 204 U.S. 8, 15 (1907).