JUDGE DONALD L. GRAHAM AND THE
ELEVENTH CIRCUIT, USCA USE UNPUBLISHED OPINIONS TO UNDERMINE THE RULE OF
LAW AND HIDE MISCONDUCT
JUNK LAW | DOCUMENTED ACTS OF MISCONDUCT JUDGE GRAHAM ||JUDICIAL MISCONDUCT COMPLAINTS AGAINST JUDGE GRAHAM | SUA SPONTE ISSUED FILING INJUNCTION | In Forma Pauperis Mockery HOME PAGE
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TABLE OF CONTENTS
A Respected Jurist On the Potential Dangers of Unpublished Opinions
Eleventh Circuit Case No. 01-13664: The Unpublished Appeal From Hell
Eleventh Circuit's Publication Rules
Unpublished Opinion, Published Opinion, Same Facts, Very Different Outcomes
Roll Call Of Unpublished Decisions
Banned Out Of Court Direct Government Communications
Futile Attempts At Appellate Review
A Respected Jurist On the Potential Dangers of Unpublished Opinions
A respected jurist, Judge Richard Arnold, warned of the dangers of unpublished opinions when he said:If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. (I don’t say that judges are actually doing this–only that the temptation exists.) Or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I’m not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judge share human beings.”1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas - Little Rock School of Law ; Richard S. Arnold.Judge Arnold, now deceased, cannot be resting comfortably. In Anastasoff. v. United States, 223 F.3d 898 (8th Cir. 2000), Judge Arnold and his panel declared unpublished opinions to be unconstitutional. This opinion was subsequently vacated on other grounds, 235 F.3d 1054 (8th Cir. 2000) by an en banc court.
Eleventh Circuit Case No. 01-13664: The Unpublished Appeal From Hell
Eleventh Circuit Case No. 01-13664, an unpublished opinion, represents Circuit Judge Richard Arnold's worst fears. See "Eleventh Circuit Case No. 01-13664: The Appeal From Hell". This opinion is incredulous in the level of dishonesty involved. It is hard to imagine a more dishonest opinion. The tactics used by the Eleventh Circuit to reach the desired outcome, a vindication of Judge Graham personally, included, but is not limited to the following:
- The Eleventh Circuit chose an unpublished opinion.
- The opinion was never released the opinion to the Internet.
- The Eleventh Circuit denied a motion to proceed on appeal in forma pauperis.
- The Eleventh Circuit attacked the Appellants briefs for superficial reasons such as not having "indexing tabs".
- The Eleventh Circuit denied multiple requests to review its jurisdiction.
- The Eleventh Circuit struck the Appellant's Brief for arguing against a sua sponte issued pre-filing injunction because they said it was "beyond the scope of appeal". The Eleventh Circuit made the Appellant go through the expense of filing all new briefs less any mention of the sua sponte issued pre-filing injunction. See Putrid Dishonesty:Beyond the Scope of Appeal”.
- The Appellees filed their brief and argued in support of the sua sponte issued pre-filing injunction. The Eleventh Circuit granted the Appellant's motion to strike the Appellees Briefs, but declined to make the heavily insured Appellees all new briefs as they had done to the mere pro se Appellant. The Eleventh Circuit stated that it would not consider the sua sponte issued pre-filing injunction in its decision.
- The Eleventh Circuit declined to review and omitted pertinent issues on appeal from discussion.
- The Eleventh Circuit declined to review the validity of the very orders that it claimed the Appellant violated, the orders of June 19, 2000, (DE #246), and July 25, 2000, (DE #246), that caused the case to be dismissed. See Background, below.
- Judge Graham is accused of misconduct, abuse, and mismanagement and that Judge Graham should have recused or disqualified because of this behavior. There is no discussion of this issue in the appeal, much less a remedy. This issue and the allegations supporting it are simply ignored.
- The Appellant challenged the authenticity and relevancy of emails that were used as evidence of violations of out of court communications in violations the orders of June 19, 2000, (DE #246), and July 25, 2000, (DE #246).
- On October 16, 2002, when the Eleventh Circuit rendered its opinion, it then used the same sua sponte issued pre-filing injunction that it had previously said it was "beyond the scope of appeal" and struck the Appellant's brief to affirm Judge Graham.
See "Eleventh Circuit Case No. 01-13664: The Appeal From Hell". Similarly, along this same time interval, a petition for mandamus was filed which, among other things, accused Judge Graham of misconduct, abuse, and mismanagement. The petition met a similar and even worse fate. See Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham.
Eleventh Circuit's Publication Rules
11th Cir. R. 36-2 Unpublished Opinions. An opinion shall be unpublished unless a majority of the panel decides to publish it. Unpublished opinions are not considered binding precedent. They may be cited as persuasive authority, provided that a copy of the unpublished opinion is attached to or incorporated within the brief, petition, motion or response in which such citation is made. But see I.O.P. 7, Citation to Unpublished Opinions by the Court, following this rule.
11th Cir. R. 36-3 Publishing Unpublished Opinions.At any time before
the mandate has issued, the
panel, on its own motion or upon the
motion of a party, may by unanimous vote order a previously
unpublished opinion to be published. The
timely filing of a motion to publish shall stay issuance of
the mandate until disposition thereof
unless otherwise ordered by the court. The time for issuance
of the mandate and for filing a petition
for rehearing or petition for rehearing en banc shall begin
running anew from the date of any order
directing publication.
IOP
Internal Operating Procedure
5.
Publication of Opinions. The policy of the court is: The unlimited
proliferation of published
opinions is undesirable because it tends to impair the development of the
cohesive body of law. To
meet this serious problem it is declared to be the basic policy of this
court to exercise imaginative
and innovative resourcefulness in fashioning new methods to increase
judicial efficiency and reduce
the volume of published opinions. Judges of this court will exercise
appropriate discipline to reduce
the length of opinions by the use of those techniques which result in
brevity without sacrifice of
quality.
published. Opinions that the panel believes to have no precedential value are not published. All non-published opinions and affirmances without opinion under 11th Cir. R. 36-1 are printed in table form in the Federal Appendix. (See for example 88 Fed.Appx. 384). Although unpublished opinions may be cited as persuasive authority, they are not considered binding precedent. Reliance on unpublished opinions is not favored by the court. The court will not give the unpublished opinion of another circuit more weight than the decision is to be given in that circuit under its own rules. Parties may request publication of an unpublished opinion by filing a motion to that effect in compliance with FRAP 27 and the corresponding circuit rules.
7. Citation to Unpublished Opinions by the Court. The court generally does not cite to its “unpublished” opinions because they are not binding precedent. The court may cite to them where they are specifically relevant to determine whether the predicates for res judicata, collateral estoppel, or double jeopardy exist in the case, to ascertain the law of the case, or to establish the procedural history or facts of the case.
Unpublished Opinion, Published Opinion, Same Facts, Very Different Outcomes
Judge Graham has been affirmed on appeal while some of his colleagues at the S.D. Florida and other federal judges were reversed on the same set of facts. The Eleventh Circuit used unpublished opinions to affirm Judge Graham while his colleagues were reversed using published opinions. Essentially the Eleventh Circuit has created a secret underground body of law. See Tale of Two Appeals Home Page.
Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge U.S. District Judge Donald L. Graham was affirmed or upheld on appeal for the exact same set of facts that his colleague, Judge Daniel T. K. Hurley, at S.D. Fla. was reversed on appeal. In Martinez, v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir. 2004), the Eleventh Circuit vacated and remanded Judge Daniel T. K. Hurley's denial of an IFP application for failing to a reason for the denial. However, Judge Donald L. Graham in the same Court, Southern District of Florida, did the exact thing as Judge Hurley, but Judge Graham was affirmed. This fact can be verified in five minutes by reading mmason.freeshell.org/martinez.htm . Incidentally, Judge Graham has a documented history of denying in forma pauperis petitions without providing any explanation. See Judge Graham's History of Arbitrary IFP denials.
“Teflon
Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages
Suffers Reversal
U.S. Dist. Judge Ursula Ungaro-Benages was reversed on appeal
by the Eleventh Circuit for failing to make Fed.R.Civ.P. 41(b)’s
requisite finding that “lesser sanctions would not suffice”
while her colleague U.S. Dist. Judge Donald L. Graham, “Teflon
Don”, failed to make the same finding but was affirmed on
appeal.
Similarly in
World Thrust Films v. International
Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995), U.S.
District Judge Ursula Ungaro-Benages, United States District Court
for the Southern District of Florida, was reversed on appeal for
failing to make an explicit finding under Fed.R.Civ.P. 41(b),
while U.S. District Judge Donald L. Graham, S.D. Fla., failed to
make the same explicit finding, but was affirmed on appeal.
See mmason.freeshell.org/WorldThrust.htm. As if this was bad enough, the Eleventh Circuit used an invalid sua sponte issued pre-filing injunction that issued on September 20, 2001 to make an implicit finding under
Fed.R.Civ.P. 41(b) to justify a dismissal of a case that was closed three months earlier on June 20, 2001. The Eleventh Circuit used the very same invalid sua sponte issued pre-filing injunction that it struck Mason's brief for arguing because the Eleventh Circuit claimed that this sua sponte issued pre-filing injunction was "beyond the scope of appeal." For more see, mmason.freeshell.org/methods.htm
Eleventh
Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke
Res Judicata
In
Pleming v. Universal-Rundle Corp., 142 F.3d 1354 (11th Cir. 1999), U.S. Dist. Judge Marvin H. Shoob, Northern District of
Georgia, a part of the Eleventh Circuit, was reversed on appeal for
the same set of facts that Judge Graham was affirmed. Judge Shoob
was victimized by a published decision while Judge Graham’s actions
were saluted with an unpublished opinion. Other Judges in the
Eleventh Circuit and particular judges at the Southern District of
Florida have suffered reversals in published opinions for the same
set of facts that Judge Graham has been affirmed for.
U.S. Dist. Judge William P. Dimitrouleas Reversed While Colleague
Judge Donald L. Graham Affirmed by Killing The Appeal
U.S. Dist. Judge William P. Dimitrouleas was reversed on appeal by
the Eleventh Circuit for Imposition of Sanctions beyond the
litigant’s ability to pay. During the same time period, Judge
Dimitrouleas’ colleague, U.S. Dist. Judge Donald L. Graham, “Teflon
Don”, awarded $200,000 in attorneys’ fees against an indigent who
was proceeding in forma pauperis but was nevertheless
affirmed on appeal by the Eleventh Circuit. Judge Graham was
affirmed by what can only be described as a very pernicious act in
that the Eleventh Circuit affirmed Judge Graham by denying the
indigent litigant the right to an appeal the mammoth award of
$200,000 in forma pauperis. Moreover, the Eleventh Circuit
had to take the following extreme measures to keep from reversing
“Teflon Don” in the underlying merits appeal, Case No. 01-13664:
- The Eleventh Circuit, though admittedly briefed, failed to review for validity the very orders that were used by Judge Graham to justify dismissal of the case under Fed.R.Civ.P. 41(b). See Documents Nos. 201 and 246. The Eleventh Circuit was quite willing to discuss violations of these orders, but not their validity. See Post, “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“
- The Eleventh Circuit, though admittedly briefed, failed to review the issue as to whether or not Judge Graham should have disqualified or not. See post, "Are Allegations of Misconduct Reviewable on Appeal?"
- The Eleventh Circuit struck Mason the Appellant/Plaintiff’s
brief for arguing an order that it deemed beyond the scope of
appeal and then turned around used the very same order to affirm
Judge Graham.
“Putrid Dishonesty:Beyond the Scope of Appeal”
Judge Graham Disagrees With The Fifth Circuit, U.S. Court of Appeals
Judge Vanessa D Gilmore in
Test Masters
Educational Services, Inc. v. Singh, 428 F.3d 559 (5th Cir. 2005) who was reversed
for issuing an unconstitutional prior restraint, while
Judge Graham has escaped appellate review because the Eleventh
Circuit has declined to review his orders or injunctions for
validity in what has to be a record number of times. See this site's
posting "Eleventh
Circuit Repeatedly Refuses To Review Orders For Validity".
ROLL CALL OF UNPUBLISHED DECISIONS
The Eleventh Circuit has made of slew of decisions with respect to Marcellus M. Mason, Highlands County Board of County Commissioners, and Judge Donald L. Graham, however, despite the myriad of decisions made by the Eleventh Circuit, they have not found one single decision that they could publish involving these parties. The question is why not. I contend that the Eleventh Circuit is attempting to conceal the misconduct of Judge Donald L. Graham. Indeed you won't see them mention any allegations of misconduct against Judge Graham.01-13664
01-11305
02-13418 This is a lawsuit where Judge Graham was being sued. You would think it would be important enough to publish.
01-15754 This is one page denial of a mandamus petition with no explanation at all.
04-11894 This is mandamus denial which does not even discuss the allegations of misconduct directed against Judge Graham.
00-16512 This appeal dealt with Judge Graham's arbitrary denial of IFP. See Judge Graham's IFP history.
Not only are these "opinions not published, you can't even go the Eleventh Circuit's, www.ca11.uscourts.gov,web page and find them by doing a search. These opinions are on the scrap heap of justice. If you don't know these cases exist you can not possibly find them.
BACKGROUND
“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.
BANNED OUT OF COURT DIRECT GOVERNMENT COMMUNICATIONS
The orders of June 19, 2000, (DE #246). and July 25, 2000, (DE #246), outlawed the following communications and formed the basis for the dismissal of a lawsuit:
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)
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. 01-15754. 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).
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