HOME PAGE |JUDICIAL MISCONDUCT COMPLAINTS  JUNK LAW     FEDERAL MAGISTRATE OVERRULES THE FIRST AMENDMENT UNDERMINE APPEAL RIGHT AND DISHONESTY | A TALE OF TWO APPEALS, SAME FACTS, DIFFERENT OUTCOME JUDICIAL DISHONESTY DOCUMENTED| METHODS USED TO CONCEAL THE MISCONDUCT OF JUDGE DONALD L. GRAHAM |

 

Justice Turned On Its Head

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

 


Google Custom Search

Eleventh Circuit US Court of Appeal: Sua Sponte Issued Filing Injunctions Are Valid


TABLE OF CONTENTS

Pending

Definition of Sua Sponte

The Consequences of this Sua Sponte Issued Injunction

Judge Graham's Ignores "Rule of Law"

Invalid: Lack Of Due Process

Void For Lack of Due Process

Appellate History: Exercise in Futility


KEY POINT-FRAMING AN INNOCENT PERSON

Judge Donald L. Graham, AUSA Theodore Cooperstein, and AUSA Robert Waters used a clearly void sua sponte issued pre-filing injunction to form the basis of a criminal contempt complaint.  

THE KEY POINT HERE IS THAT THE ELEVENTH CIRCUIT HAS REFUSED TO REVIEW A SUA SPONTE ISSUED PRE-FILING INJUNCTION FOR VOIDNESS WHILE IT SAT BACK AND ALLOWED AN INNOCENT MAN TO BE CONVICTED AND JAILED BASED UPON AN ALLEGED VIOLATION OF A CLEARLY VOID SUA SPONTE ISSUED PRE-FILING INJUNCTION.   MARCELLUS MASON HAS FILED A PLETOHORA OF LEGAL INSTRUMENTS SEEKING APPELLATE REVIEW WITH THE ELEVENTH CIRCUIT, US COURT OF APPEALS, AND HAS BEEN REFUSED THE LEGAL RIGHT OF APPELLATE REVIEW.  NONE OF THE PARTIES RELYING ON THIS CLEARLY VOID SUA SPONTE ISSUED PRE-FILING INJUNCTION HAVE STATED WHY THEY THINK IT IS LEGAL. 

 

Definition of Sua Sponte

 

"Sua sponte, Latin for "of one's own accord," is a legal term that means to act spontaneously without prompting from another party. The term is usually applied to actions by a judge, taken without a prior motion or request from the parties."  URL: http://en.wikipedia.org/wiki/Sua_sponte

 

Google Custom Search

 

PENDING

A Notice of Appeal is pending and was filed on March 13, 2008 and is awaiting an in forma pauperis motion ruling See Docket Entry No. 142 and Docket Entry 143. 

Rule 60(b)(4) Fed.R.Civ.P. MOTION

A Motion was presented in the Southern District of Florida To Vacate This Sua Sponte Issued pre-filing Injunction Under Rule 60(b)(4) Fed.R.Civ.P.,  on June 8, 2007. See Motion To Vacate, 23 pages.  This motion, among other things, seeks to have the sua sponte issued pre-fling injunction declared void pursuant to Rule 60(b)(4), Fed.R.Civ.P.  See Smith v. United States Of America, 386 Fed. Appx. 853; 2010 U.S. App. LEXIS 14050 (11th Cir. 2010)(granting a Rule 60(b)(4) motion and noting that notice is required prior to issuing a pre-filing injunction)   The Court, having declared a sua sponte issued pre-filing injunction void, would no longer have a legal basis for a violation of void order and criminal contempt complaint.  The Highlands County Board of County Commissioners, the original Defendant in the civil case [99-14027-CV-GRAHAM] in which the sua sponte issued pre-filing injunction was rendered, refused to file a brief. The Government, who filed the information in the criminal case [02-14020-CR-Moore], replied on August 2, 2007. The Government's Response as filed by AUSA Robert Waters does not cite the record, or cite one legal authority for its apparent position that a sua sponte issued pre-filing injunction is not void and may form the basis of a criminal contempt complaint.  See The  Government's Response (5 pages).  On or about 10/19/07, Marcellus Mason was jailed until 11/29/2007 for an alleged probation violation due to a criminal contempt conviction based upon this sua sponte issued pre-filing injunction. This matter is online under the court's electronic filing system under Case No. 02-14020, Judge K. Michael Moore.  On October 16, 2007, Magistrate John J. O'Sullivan rendered a Report and Recommendation, "R&R", and apparently ruled that a clearly void order may become valid by a later filed contempt charge.  Stated alternatively, Magistrate John J. O'Sullivan has explicitly ruled that a void order maybe "bootstrapped" or become valid by a later filed criminal contempt complaint.  On 12/06/2007, the Report and Recommendation of the Magistrate was returned undeliverable to the Court.   See Docket.  This "R&R" was rendered while Marcellus Mason was in jail.  The R&R prevaricates with respect to several issues, but expressly states that a clearly void sua sponte issued pre-filing injunction may form the basis of a criminal contempt complaint and conviction.  On December 14, 2007, Mason filed a motion with the Court notifying it that he did not receive the R&R because he was in jail and the the R&R was returned to sender by the USPS because the R&R was addressed improperly. See Docket Entry No. 132. Upon  reading the R&R after getting out of jail, Marcellus Mason amended his original motion to vacate the conviction and only sought relief with respect to a declaration that a sua sponte pre-filing injunction is void.    See  Docket Entry No. 134.  On December 21,2007, Marcellus Mason filed objections to the R&R.  See Docket Entry No. 133.  On 01/04/2008, Judge K.M. Moore ordered the government to file a response.  See Docket Entry No. 136.  On 01/07/2008, AUSA Theodore Cooperstein, filed a response as ordered by the Court, but declined to inform the court as to how a clearly void sua sponte issued pre-filing injunction may form the basis of a criminal contempt complaint.   See Docket Entry No. 137.  On 03/04/2008, Judge K.M. Moore denied the Motion.  See Docket Entry No. 141.  Specifically, Judge K.M. Moore did not address the underlying motion challenging the validity of the sua sponte issued pre-filing injunction instead he "split the baby" by denying the motion to file a response to the unreceived Report and Recommendation and ordering Marcellus Mason off of supervised release probation. 

 

A Notice of Appeal has been filed and is awaiting an in forma pauperis motion.  See Docket Entry No. 142 and Docket Entry 143. 

 


U.S. District Judge Donald L. Graham: "I have the power to issue Pre-filing Injunctions without giving Notice an Opportunity to Respond"

 

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.   APPELLATE HISTORY, BELOW.

 


US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED "SUA SPONTE" PRE-FILING INJUNCTIONS. 

 

A long line of United States appellate courts, including the Eleventh Circuit, have rejected “sua sponte” issuances of pre-filing injunctions because they are violations of due process.  EVEN MORE INCREDIBLE IS THE FACT THAT THE ELEVENTH CIRCUIT REFUSES TO REVIEW THIS SUA SPONTE ISSUED PRE-FILING INJUNCTION FOR VALIDITY.   See Smith v. United States Of America, 386 Fed. Appx. 853; 2010 U.S. App. LEXIS 14050 (11th Cir. 2010)(granting a Rule 60(b)(4) motion and noting that notice is required prior to issuing a pre-filing injunction).  In Weaver v. Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006),  the Eleventh Circuit held that a litigant or Weaver was entitled to “notice and an opportunity to be heard” before a restriction was imposed on Weaver’s ability to challenge an injunction.  U.S. v. POWERSTEIN, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006)(litigant entitled to notice and an opportunity to be heard before the court imposed the injunctive order).    Sires v. Fair , 1997 U.S. App. LEXIS 2173 (1st Cir. 1997);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); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999); Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000); Holton v. Oral Surg. Sing Sing Corr. , 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); 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.”).;Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005); Wiliams v. Cambridge Integrated Servs. Group, 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); “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, 2006 U.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); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ; De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 1997 U.S. App. LEXIS 4996 (10th Cir. 1997) . 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).  


FINDING OF BAD FAITH

In this same sua sponte issued pre-filing injunction Judge Graham makes a so-called "finding of bad faith". “It has become clear to the Court that Mason is proceeding in bad faith.. Such activity is in bad faith and will not be permitted by the Court.” (D.E. #878, pg. 5, 6, “Bad Faith” section). 

The United States Supreme Court has stated:

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.” (emphasis added)  Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991).  

 


VOID FOR LACK OF DUE PROCESS

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”.” 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)

 

 


Consequences

  • An alleged violation of the void sua sponte issued pre-filing injunction formed the basis of a criminal contempt conviction.   The criminal contempt conviction led to probation with 5 years of supervised release on this criminal contempt misdemeanor that only carries a maximum of six months in jail.  Mason spent 41 days in jail on this criminal contempt conviction. 
  • Attorney’s fees award of $200,000 was based on this sua sponte issued pre-filing injunction. See mmason.freeshell.org/attorneysfees.htm .
  • A criminal contempt conviction was based upon this same sua sponte issued pre-filing injunction. See mmason.freeshell.org/contempt/de6.htm.
  • This same sua sponte issued pre-filing injunction rendered on September 20, 2001 was used to justify affirming Judge Graham on appeal in Eleventh Circuit Case No. 01-13664 in a case that was closed on June 20, 2001. See mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm. Even more incredible the Eleventh Circuit struck Mason's brief for arguing against this same sua sponte issued pre-filing injunction, but on October 16, 2002, when the Eleventh Circuit rendered its opinion, it then used this same sua sponte issued pre-filing injunction against Mason.  See   mmason.freeshell.org/dishonesty.htm#BeyondScopeAppeal.
  • This same sua sponte issued pre-filing injunction has caused a level of dishonesty that is incredible, but documented. See mmason.freeshell.org/methods.htm

 

 

 

 


 

APPELLATE HISTORY: AN EXERCISE IN FUTILITY?

            There has never been any appellate review of the pre-filing injunction of September 20. 2001The Eleventh Circuit has had multiple opportunities to review the September 20, 2001 order, but has declined to do so for a different reason each time. Consider the following futile attempts at appellate review:

99-14027

01-13664-A

Mar. 6, 2002

Court Strikes Appellants Brief arguing against the September 20, 2001 order. Court states the order is beyond the scope of appeal”.  Court orders Mason to go through the expense of filing new briefs that have no reference to the September 20, 2001.   

99-14027

01-13664-A

Apr. 23, 2002

Court Strikes Appellees brief for citing the order of September 20, 2001.  However court refuses to make Appellees file new briefs as they did the Appellant. 

99-14027

01-13664-A

Oct. 16, 2002

Court Affirms Judge Graham.  At pg. 14, Court specifically uses the September 20, 2001 that it stated to Mason was “beyond the scope of appeal”. “Moreover, despite the closure of the case by the district court, Mason’s continual filing of motions with the court addressing matters previously settled prompted the district court to prohibit Mason from further filings without explicit permission and initiate criminal contempt proceedings.  Therefore, the record supports the districts court’s implicit finding that a sanction less than dismissal of the action with prejudice would have no effect.”

99-14027

01-13664-A

Jan. 31, 2003

The petition(s) for rehearing filed by appellant Marcellus M. Mason, Jr., is DENIED.”  Court refuses to consider the fact it used the September 20, 2001 in its opinion affirming Judge Graham.

99-14027

01-15754-A

Dec. 5, 2001

The “petition for writ of mandamus and petition for writ of prohibition” is DENIED

99-14027

01-15754-A

Jan. 25, 2002

Petitioner's "motion for reconsideration and clarification" of this Court's December 5, 2001, Order, is DENIED as Petitioner has offered no reason sufficient to warrant either reconsideration or clarification of this Court's Order.”[1]

99-14027

02-14646

Oct. 7, 2002

This Appeal is DISMISSED, sua sponte, for lack of jurisdiction.  Appellant Marcellus Mason's notice of appeal, filed on June 24, 2002, is untimely from the district court's order enjoining him from filing additional pleading, entered on September 21, 2001. 

TABLE 1



 

The Eleventh Circuit has used the in forma pauperis statutes to routinely deny review of the sua sponte issued pre-filing injunction of September 20, 2001.   The Eleventh Circuit has claimed that each and every IFP petition filed by Mason was frivolous for one reason or another and never the same reason.  The U.S. Supreme Court has stated that “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.  Denton v. Hernandez, 504 U.S. 25 (1992).  It is irrational to deny the reality of the sua sponte issued injunction of September 20, 2001.  However, The Eleventh Circuit has managed to do just that, consider the following:

99-14027

01-13664-AA

Dec. 12, 2001

Court states “appellant has not truthfully provided The Eleventh Circuit with information concerning his ability to pay the filing and docketing fees.” and provides no factual support for this conclusion.  In contrast, on April 26, 2001, The Eleventh Circuit stated  “In this case,. Mason has established poverty by way of an affidavit of indigency “.  Case No. 01-11305

99-14027

01-13664-AA

Feb. 7, 2002

Court refuses to provide explanation for allegation of poverty being untrue[1].

99-14027

02-10868

Aug. 23, 2002

“Appellant’s motion for leave to file an appeal in forma pauperis is DENIED because the appeal is frivolous.”  In addition to attacking the September 20, 2001 injunction, this appeal was filed to fight the $200,000 in attorney’s fees that was awarded to the defendants based upon the sua sponte issued September 20, 2001 injunction. 

01-16135-D

Nov. 19, 2001

“Petitioner’s motion to filed the mandamus petition in forma pauperis is DENIED because the petition is frivolous.  The Court notes Petitioner already has a mandamus petition pending before the Court, docked here as No. 01-15754, in which Petitioner seeks much the same relief sought in this petition.”

99-14027

02-11476-A,

May 1, 2002 pgs. 1, 2 ,3

“Mason has adequate alternative remedy on appeal regarding this issue.”

99-14027

02-11476-A,

Jun. 13, 2002

Mason, however, merely reiterates the arguments from petition, and does not allege that The Eleventh Circuit overlooked or misapprehended any point of fact or law”

01-14230

02-10873-G

June 27, 2002

“DENIED because the appeal is frivolous” No other explanation is provided.

01-14230

02-10873-G

Aug. 29, 2002

Judges Black, Barkett, and Wilson refused to offer a reason for IFP denial

01-14310-CIV-GRAHAM

02-13314-I.

Nov. 6, 2002

“DENIED because the appeal is frivolous” No other explanation is provided.

04-11894-B

May 20, 2004

“could have timely appealed the September 20, 2001 order, but did not do so”

05-10623-I

Mar. 16, 2005

“Mason appealed the dismissal of his case as well as the district court’s order of September 20, 2001…”

TABLE 2


[1] Among other things, The Eleventh Circuit was provided with a notice that Mason’s home was in foreclosure. 

 

HOME PAGE