HOT NEW ITEM !!

On September 12, 2002, Judge Graham entered the following order:
FINAL JUDGMENT ORDER AND ADJUDGED that Defendant's Motion is GRANTED. Final Judgment is entered in favor of Defendant and costs, in the amount of $200,00 are awarded to Defendant in accordance with this Court's January 25, 2002.
See Final Judgment (D.E. #911, pgs. 1).

When Judge Graham vindictively entered the final judgment on September 12, 2002 he was without legal authority to enter the final judgment as he had already recused or disqualified.  On May 7, 2002, Judge Graham issued an order recusing himself from Case No. 99-14027-CIV-Graham for “contempt proceedings only” by stating that:
[T]he undersigned district judge, to whom the above styled case has been assigned, hereby recuses himself for contempt proceedings only and refers the case the Clerk of Court for reassignment for contempt proceedings only pursuant to 28 U.S.C. 455 and Local Rule 3.6.

See (D.E. #908). Judge Graham is clearly defying the authority of the Eleventh Circuit, U.S Court of Appeal who have expressly rejected issue recusal or subject matter recusal:

But when a district judge considers recusal, he must consider his potential conflict with regard to the overall case, not just his potential conflict for each separate issue or each stage of the litigation. See United States v. Feldman, 983 F.2d 144, 145 (9th Cir. 1992) ("[W]hen a judge determines that recusal is appropriate it is not within his discretion to recuse by subject matter or only as to certain issues and not others.").

See Bradley Murray v. Ray W. Scott, Jr., B.A.S.S., Inc., 253 F.3d 1308 (11th Cir. 2001). .



TABLE OF CONTENTS

POINT OF THIS WEBPAGE

QUICK FACTS

INJUNCTION OF SEPTEMBER 20, 2001

CASE SUMMARY

Report and Recommendation

U.S. SUPREME COURT AND ELEVENTH CIRCUIT RULINGS ON AWARDING ATTORNEY'S FEES

Order Adopting Report and Recommendation

Final Judgment

Notice of Appeal, Attorney's Fees

Judge Graham Expressly Thumbs His Nose at The Supreme Court

Not Judicial Misconduct

U.S. Supreme Court on Bad Faith

The U.S. Supreme Court

Pre-Filing Restrictions



POINT OF THIS WEBPAGE

This page will prove beyond a reasonable doubt that U.S. District Judge Donald L. Graham, "Teflon Don", has displayed a willful contempt or otherwise thumbing his nose at decisions of the United States Supreme Court, "SCOTUS", and the Eleventh Circuit, U.S. Court of Appeal.  Judge Graham has freely admitted that he is legally bound to follow the decisions of both courts.  See Skylark v. Honeywell Int'l, Inc., 2002 U.S. Dist. LEXIS 10554  (S.D. FLA 2002) ("In the case of the Southern District of Florida, the only courts it must be obedient to are [the Eleventh Circuit] and the Supreme Court of the United States.").  This page will demonstrate that Judge Graham has ignored binding precedent with impunity.  In fact, what you will find is that the Eleventh Circuit has used unpublished opinions to contort the law and the facts to keep from rebuking Teflon Don. A perfect example of this tactic is set forth in a blog post entitled "Eleventh Circuit Case No. 01-13664: The Appeal From Hell".  As a matter of fact, the Eleventh Circuit said it would be frivolous to appeal the award of $200,000, see ELEVENTH CIRCUIT, below. 


QUICK FACTS

Trial Court Docket available on this website.  

This was a civil case filed in February 1999, Case No. 99-14027-CIV-Graham, Marcellus M. Mason v.  Heartland Library Cooperative, Highlands County Board County Commissioners, et.al.  Marcellus Mason was permitted to proceed without paying the filing fee or in forma pauperis, "IFP" because he was unable to pay a filing fee of $150.00.  See Docket Entry No. 3, (D.E. #3).  This Case was originally assigned to Judge Edward Davis who retired during the pendency of this lawsuit.  Judge Donald L. Graham, "Teflon Don" was ultimately assigned this case.  This case was closed on June 20, 2001 because Mason was alleged to have communicated with Highlands County in violation of an injunction rendered by Magistrate Judge Frank Lynch.  On June 20, 2001, when the case was closed there were motions for summary judgment pending by both the Plaintiff and the Defendant.  See Docket Entries Nos.  507, 667, 668, 705, 706 by the Plaintiff and Nos. 769, 770, 731, 698, 699 by the Defendants.   Consequently, the facts supporting the lawsuit were not considered by Judge Graham.   Summary judgment motions are used to get the judge to decide the case on the undisputed facts without submitting the lawsuit or some claims in the lawsuit to a jury. When the case was dismissed on June 20, 2001 Judge Graham and his Magistrate Frank Lynch, Jr. expressly stated that the lawsuit was not frivolous.  "However, there remain, as this Court recommended, various viable claims for trial." See Report and Recommendation, (D.E #766, pg. 5), and Order Adopting R&R, (D.E. 791).


INJUNCTION OF  SEPTEMBER 20, 2001.  

On September 20, 2001, District Court Case No. 99-14027-CV-Graham/Lynch, Judge Graham rendered a pre-filing injunction against the Plaintiff Marcellus M. Mason sua sponte or own his motion.  See Docket Entry NO. 878, (D.E. #878, pg. 3).  Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte.  This sua sponte issued pre-filing injunction was used by the Eleventh Circuit, U.S. Court of Appeal to affirm the dismissal a lawsuit and to award attorney's fees of $200,000 against an indigent Plaintiff.  This order requires that Mason seek the permission of the court prior to filing a lawsuit or any motion concerning a lawsuit already filed.  See Pre-filing Restrictions, below. This is an extraordinary action and only to be applied in the most extreme circumstances.  Pre-filing injunctions entered without notice and opportunity to respond are routinely rejected by the U.S. Circuit Courts of Appeals, See Case Law on Pre-filing Injunctions, below.  More importantly, the United States Supreme Court has said: (1)that there is a right of access to the courts; (2)the right of access to the courts is constitutionally protected; (3)constitutionally protected rights require due process; (4)an order issued in violation of due process is void and not worthy of respect.  Additionally, this sua sponte issued pre-filing injunction is invalid because it also makes a "finding of bad faith".  At pages 5,6, this sua sponte issued pre-filing injunction asserts:

It has become clear to the Court that Mason is proceeding in bad faith. Indeed, he has admitted as much in his own pleadings and correspondence...Such activity is in bad faith and will not be permitted by the Court. 

A finding of bad faith requires due process as well. " 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.See Byrne v. Nezhat, 261 F.3d 1075 (11th Cir., 2001).   

 

On January 25, 2002, Judge Donald L. Graham awarded $200,000 in attorney's fees against an indigent Plaintiff.  See Docket Entry No. 891, (D.E. #891).  This massive award was based solely upon the sua sponte issued pre-filing injunction of September 20, 2001. This massive award was not based upon the quality of the lawsuit or whether it was frivolous or not, because Judge Graham had summary judgments submitted by both the Plaintiff and the Defendant that he refused to rule on.  


CASE SUMMARY

The Defendant(s) in this case and all other related cases,  is the Highlands County Board County Commissioners, is a GOVERNMENT.  Highlands County is located Sebring, Florida which is South Central Florida.  Judge Graham's office is in Miami, Florida, or approximately 160 miles from where I reside in Sebring, Florida. Maria Sorolis and Brian Koji of Allen, Norton & Blue reside and work in Tampa, Florida, or some 90 miles away from Sebring, Florida.  Court papers are filed in Fort Pierce, Florida, or some 75 miles away from Sebring, Florida.  On June 19, 2000 and July 25, 2000, a Magistrate Judge, Lynch, issued the following directives:

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)

              

“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)
.

These orders are injunctions which a Magistrate may not lawfully issue. "Notwithstanding any provision of law to the contrary— a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief...," 28 U.S.C. 636(b)(1)(A).  Incidentally, in addition to the fact that the above orders are injunctions that a Magistrate may not issue or make, at least three courts have found these injunctions to be invalid because they are unconstitutional.  see Lewis v. S. S. Baune, 534 F.2d 1115 (5th Cir. 1976)(reversing an order which prohibited appellant from "discussing, directly or indirectly, settlement . . . with the plaintiffs" and from "contacting, communicating, or in any way interfering with the attorney-client relationship” as “too sweeping a restraint”); Bernard v. Gulf-Oil Co., 619 F.2d 459, 466 (5th Cir. 1980) (en banc), aff'd, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981),( explicitly held that requiring the litigant to meet the Court’s “post-communication filing requirements” of constitutionally protected communication was unconstitutional.). Additionally, in Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) the court held that an order which enjoined a litigant "from communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, its staff, or TES's counsel, counsel's employees, or counsel's staff" constituted an invalid prior restraint and a unconstitutional limitation on free speech.

Graham and his Magistrate, Frank Jr., (Frank Lynch Jr.), decided they had the authority to prohibit Mason from speaking to his government out of court unless Mason had the permission of Allen, Norton, & Blue, a private lawfirm.  Judge Graham and his Magistrate, Frank Jr.,  have never stated where they got this authority from.   On June 20, 2001, Judge Graham decided to dismiss Mason's lawsuit because he alleged that Marcellus Mason communicated with his government, Highlands County Board County Commissioners, without the permission of private for profit attorneys.  See  (DE #766), Pdf  format (DE #791), Pdf format.  Mason repeatedly and incessantly challenged the jurisdiction of the court with  respect to these illegal injunctions, (DE #201), page 2 (DE #246), page 2  ,  however, Judge Graham absolutely refused to state where he got the legal authority to issue the orders in question.  Judge Graham has NEVER at any time cited legal authorities for these patently illegal orders even though there have been relentless requests.  See for example, and note that this list is not collectively exhausted, Case No. 99-14027 see Plaintiff’s  motions and responses, (Doc.#200);(Doc. #239); (Doc. #262);(Doc.  #264);(Doc. #284);(Doc.#334);(Doc. #509);(Doc. #515);(Doc. #526);(Doc. 554);(Doc. 632, pg.5);(Doc.#633);(Doc. 652);(Doc. 663); (Doc. 735); (Doc. 736); (Doc.738); (Doc. 783); (Doc. 787, pgs 2-3); (Doc. 810); (Doc. 812); (Doc.813); (Doc. 817); (Doc. 829), (Doc. 845);and the court's orders: (DE #201), page 2,(DE #246), page 2,;(Doc. #279);(Doc. 281);(Doc. #407, pg. 2  );(Doc.  #524);(Doc. #528);(Doc. #634);(Doc. 673);(Doc. 744);(Doc. 745);(Doc.  766);(Doc. 791);(Doc. 874, pg. 2);(Doc. 882, pgs. 1-2), (DE-890), (DE-928),(DE-931). Additionally, in his Report and Recommendation that recommends that the lawsuit be dismissed because of alleged violations of the orders of June 19, 2000, (D.E. #201) and July 25, 2000, (D.E. #246), the Magistrate admits that the validity of these orders were being challenged, but he declines to assert legal authority for these orders by stating only:

The Plaintiff alludes to this Court's rulings, issued June 19 and July 25, 2000, directing that he should not contact any of the Defendants or individual Defendants, including their supervisory employees, regarding any matter related to this case except through their counsel of rec6rd. If the Plaintiff was represented, his attorney would know that this is proper procedure. The Plaintiff questions this Court's authority to enter an "injunction" as he calls it preventing him from contacting the parties directly. This Court has entered numerous orders on this issue in ruling on Plaintiff's many requests for clarification ito vacate, etc., of this issue and has attempted to clearly point out to the Plaintiff that it is a discovery issue and not one appropriate for injunctive relief. The Plaintiff has appealed those orders to the District Court and they have been affirmed by Judge Graham.

See Report and Recommendation, (D.E. #766, pg. 3,5).

  When the case was dismissed on June 20, 2001 Judge Graham and his Magistrate Frank Lynch, Jr. expressly stated that the lawsuit was not frivolous.  "However, there remain, as this Court recommended, various viable claims for trial." See Report and Recommendation, (D.E #766, pg. 5), and Order Adopting R&R, (D.E. 791).  

On June 25, 2001, Mason filed a notice of appeal.  (D.E. #795).   The Eleventh Circuit docketed this case under No. 01-13664-A.  This is appeal is a joke and the very reason why unpublished opinions should be abolished.  See "Eleventh Circuit Case No. 01-13664: The Appeal From Hell" or http://mmason.freeshell.org/blog/Case_No_01-13664_the_appeal_from_hell.htm.  This is an incredibly dishonest appeal. 

On September 20, 2001, Judge Graham issued a pre-filing injunction "sua sponte" or on his own motion.  See Injunction, above.  In addition to using this sua sponte issued pre-filing injunction to award attorney's fees, Judge Graham also used this same clearly void sua sponte issued pre-filing injunction to form the basis of a criminal contempt complaint while the Eleventh Circuit sit back and watched an innocent man get convicted.  This is an incredible story, see blog post "Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life".


U.S. SUPREME COURT AND ELEVENTH CIRCUIT RULINGS ON AWARDING ATTORNEY'S FEES

The law on awarding attorney's fees in civil rights cases is controlled by the Supreme Court's case, Christianburg Garment Co. v. EEOC , 434 U.S. 412 (1978).  "In sum, a district court may, in its discretion, award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.  Christianburg, 434 U. S. 421 [A] plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. Christianburg, 434 U. S. 422 See also Sayers v. Stewart Sleep Center, Inc., 140 F.3d 1351 (11th Cir. 1998) (holding that attorney's fees awards  are appropriate "upon a [district court's] finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.")(citing Christianburg Garment Co. v. EEOC , 434 U.S. 412, 421 (1978));  Quintana v. Jenne, 414 F.3d 1306 (Fed. 11th Cir., 2005)("prevailing defendants may receive attorney's fees only when the plaintiff's case is "frivolous, unreasonable, or without foundation ").   "Factors considered important in determining whether a claim is frivolous also include: (1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits."   Sullivan v. School Board of Pinellas County, 773 F.2d 1182, 1189 (11th Cir.1985). See also Quintana v. Jenne, 414 F.3d 1306 (Fed. 11th Cir., 2005). "To be deemed "meritless" for purposes of assessing a prevailing defendant's attorney's fees, it is not enough that the plaintiff had ultimately lost his case. BRUCE v. CITY OF GAINESVILLE, GEORGIA , 177 F.3d 949 (11th Cir. 1999).


U.S. SUPREME COURT ON FINDING OF BAD FAITH

"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).  


REPORT AND RECOMMENDATION

In his Report and Recommendation, Judge Graham's Magistrate, Frank Lynch, Jr., wrote the following:


The District Court dismissed the Plaintiffs claims, with prejudice, for the Plaintiff's repeated refusal to comply with the Court's rules and orders. The District Court also entered an order on September 20, 2001, in this case and other associated cases filed by the Plaintiff, ordering the Plaintiff-to be permanently enjoined from filing any additional pleadings in the cases he presently has filed or from filing any new lawsuits relating in any way to his former employment and/or subsequent interactions with the Defendants without receiving prior written permission from the Court. In that order,  Judge Graham specifically found this present case to be "vexatious and relentless litigation on the part of Mason ." Judge Graham referred to various statements in e-mails and pleadings filed by the Plaintiff to support the Court's order enjoining the Plaintiff from filing any further pleadings. In previous Orders and Reports and Recommendations, this Court has also referred to various excerpts from the Plaintiffs pleadings and e-mails to counsel for the Defendants in which it is clear that the Plaintiff had no intention of abiding by the Court's rules, the law applicable to cases of this nature and is motivated by bad faith and vexatious behavior. 2. Judge Graham's order of September 20, 2001, refers to various e-mails from the Plaintiff which state:
See Report and Recommendation, "R&R", (D.E. #882, pgs. 1-2).
Judge Graham's order of September 20, 2001, also makes a specific finding of bad faith . Judge Graham stated, "It has become clear to the Court that Mason is proceeding in bad faith.
See Report and Recommendation, "R&R", (D.E. #882, pgs. 3).
Judge Graham stated that such activity is in bad faith and will not be permitted by the Court. Even though bad faith is not a prerequisite to an award of attorney's fees to a prevailing defendant, if the plaintiff is found to have brought such a civil rights action or to have continued such an action in bad faith, there will be an even stronger basis for charging him with attorney's fees incurred by the defense. Here, it is clear that based upon Judge Graham's previous findings of bad faith,...
See Report and Recommendation, "R&R", (D.E. #882, pgs. 3).
"This takes the case beyond the analysis of frivolity.
See Report and Recommendation, "R&R", (D.E. #882, pgs. 4).
The Plaintiff has filed numerous affidavits seeking in forma pauperis status in this and in the many other lawsuits that he has filed . The District Court has denied his request for in forma pauperis status in respect to filing of his lawsuits . Nevertheless, the Court should consider those financial affidavits, signed under oath, in respect to the Plaintiffs ability to pay any award of attorney's fees in this case.
See Report and Recommendation, "R&R", (D.E. #882, pgs. 6).
Based upon the financial affidavits filed by the Plaintiff herein, this Court finds it hard to believe that he could pay an award of $403,350 .66 in attorney's fees . In fact, there are very few individual litigants who appear before this Court who would have the financial ability to pay such an award without subjecting that individual to financial ruin . As the Eleventh Circuit stated in Durrett, the District Court should ascertain whether, in light of the plaintiffs ability to pay, a reduced assessment would fulfill the deterrent purpose without subjecting the plaintiff to financial ruin . This Court finds that such a reduction is appropriate in this case.
See Report and Recommendation, "R&R", (D.E. #882, pgs. 7).
This Court is willing to give the Plaintiff the benefit of the doubt and reduce the award of attorney's fees to a level which this Court believes would act as a deterrent to any reasonable person, keeping in mind that this Court does not believe that it is going to "cost" the Defendants any money since the Plaintiff does not appear to have the financial ability to pay anything . Based upon all of the foregoing, this Court is going to recommend to the District Court that the total attorney's fees of $403,350 .00 be reduced to a total of $200,000.00.

See Report and Recommendation, "R&R", (D.E. #882, pgs. 8).  

ORDER ADOPTING REPORT AND RECOMMENDATION

Judge Graham did a mere one page "de novo" review and adopted in the Report and Recommendation in its entirety on January 25, 2002.  See Docket Entry No. 891, (D.E. #891).


FINAL JUDGMENT
ORDER AND ADJUDGED that Defendant's Motion is GRANTED. Final Judgment is entered in favor of Defendant and costs, in the amount of $200,00 are awarded to Defendant in accordance with this Court's January 25, 2002. See Final Judgment (D.E. #911, pgs. 1). 


Attorneys fees awards may not bankrupt a party

"A court should refrain from imposing a monetary award so great that it will bankrupt the offending parties or force them from the future practice of law."  Baker v. Alderman, 158 F.3d 516 (C.A.11 (Fla.), 1998).   Sanction orders must not involve amounts that are so large that they seem to fly in the face of common sense, given the financial circumstances of the party being sanctioned. What cannot be done must not be ordered to be done. And, sanctions must never be hollow gestures; their bite must be real. For the bite to be real, it has to be a sum that the person might actually pay. A sanction which a party clearly cannot pay does not vindicate the court's authority because it neither punishes nor deters. MARTIN v. AUTOMOBILI LAMBORGHINI EXCLUSIVE, INC., 307 F.3d 1332 (11th Cir. 2002).


Judge Graham Expressly Thumbs His Nose at The Supreme Court.

  1. Judge Graham disagreed with the Supreme Court and restricted Mason's constitutionally protected right of access to the courts without the due process of law required by the Supreme Court.  On September 20, 2001, District Court Case No. 99-14027-CV-Graham/Lynch, Judge Graham rendered a pre-filing injunction against the Plaintiff Marcellus M. Mason sua sponte or own his motion.  See Docket Entry NO. 878, (D.E. #878, pg. 3).  Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. See Supreme Court's decisions on Due Process and Right of Access to the Courts.
  2. Judge Graham disagreed with the Supreme Court and made a finding of bad faith without due process of law. 
  3. At pages 5,6, this sua sponte issued pre-filing injunction asserts:

    It has become clear to the Court that Mason is proceeding in bad faith. Indeed, he has admitted as much in his own pleadings and correspondence...Such activity is in bad faith and will not be permitted by the Court. 

    See Supreme Court's decision on due process and bad faith..

  4. Judge Graham disagreed with the United States Supreme Court and the Congress and set his own law for awarding attorney's fees to defendants.  "This takes the case beyond the analysis of frivolity.See Report and Recommendation, "R&R", (D.E. #882, pgs. 4).  In Christianburg, as quoted above the defendants can only be awarded attorney's fees if the lawsuit was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. Judge Graham expressly found that the underlying lawsuit was not frivolous and had merit. "However, there remain, as this Court recommended, various viable claims for trial." See Report and Recommendation, (D.E #766, pg. 5), and Order Adopting R&R, (D.E. 791).

    "
  5. Judge Graham rejected binding authority as set forth in Sullivan v. School Board of Pinellas County, 773 F.2d 1182, 1189 (11th Cir.1985). "In cases where the plaintiffs introduced evidence sufficient to support their claims, findings of frivolity typically do not stand." id.  Judge Graham simply ignored the fact that Marcellus Mason introduced evident to support his claims by filing a motion for summary judgment, see Docket Entries Nos.  507, 667, 668, 705, 706 and by opposing  the Defendants' motion for summary judgment, see Docket Entries Nos. Nos. 769, 770, 731, 698, 699. See Docket for verification.
  6. Judge Graham expressly rejected binding authority as set forth in Sullivan v. School Board of Pinellas County, 773 F.2d 1182, 1189 (11th Cir.1985),  by making an award of attorney's fees and acknowledging: "This Court is not aware of any offers to settle. See Report and Recommendation, "R&R", (D.E. #882, pgs. 4).
  7. Judge Graham then expressly ignored the Eleventh Circuit by making an award so great that he knew would bankrupt Mason who was proceeding in forma pauperis.  "[T]his Court does not believe that it is going to "cost" the Defendants any money since the Plaintiff does not appear to have the financial ability to pay anything . See Report and Recommendation, "R&R", (D.E. #882, pgs. 8).  See law on awarding fees that bankrupt the party.
  8. Judge Graham disdained Eleventh Circuit's standards in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).  In Johnson1, the Eleventh Circuit listed 12 factors to be considered in making attorneys' fees awards:

    1. The time and labor required. Although hours claimed or spent on a case should not be the sole basis for determining a fee, Electronics Capital Corp. v. Sheperd, 439 F.2d 692 (5th Cir. 1971), they are a necessary ingredient to be considered.

    2. The novelty and difficulty of the questions.

    3. The skill requisite to perform the legal service properly.

    4. The preclusion of other employment by the attorney due to acceptance of the case.

    5. The customary fee. The customary fee for similar work in the community should be considered.

    6. Whether the fee is fixed or contingent.

    7. Time limitations imposed by the client or the circumstances.

    8. The amount involved and the results obtained.

    9. The experience, reputation, and ability of the attorneys.

    10. The "undesirability" of the case.

    11. The nature and length of the professional relationship with the client.

    12. Awards in similar cases.

    Judge's Graham's order and the R&R fail to mention the Johnson factors were complied with.

1Fifth Circuit decisions prior to October 1, 1981 are binding precedent on this Court, but not after that date1981. See Bonner v. City of Prichard , 661 F.2d 1206,1209 (11th Cir. 1981). Accordingly, the district court's decision is due to be affirmed


ELEVENTH CIRCUIT

ELEVENTH CIRCUIT: "IT IS FRIVOLOUS TO OPPOSE AN AWARD OF $200,000 IN LEGAL FEES".

NOTICE OF APPEAL , Attorney's Fees

A Notice of Appeal was filed on February 7, 2002.  See Docket Entry, (D.E. #896).  This appeal was assigned Case No. 02-10868-A by the Eleventh Circuit. The Eleventh Circuit, said that it was frivolous to file an appeal of an award of $200,000 in attorney's fees.   On August 23, 2002, the Eleventh Circuit, and Judge Charles Wilson, stated: "Appellant's motion for leave to proceed on appeal in forma pauperis is DENIED because the appeal is frivolous Pace v. Evans, 709 F.2d 1428 (11th Cir. 1983)."   See Order dtd. Aug. 23, 2002.  The Eleventh Circuit does not state why it thinks an appeal of a $200, 000 award of attorney's fees is frivolous.  On October 17, 2002, denying motion for clarification, the Eleventh Circuit, for the second time, asserted that it was frivolous to file an appeal of a $200,000 award in attorney's fees.  See Order dtd Oct. 17, 2002.   


 

Not Judicial Misconduct 

U.S. Circuit Judge J.L. has expressly stated that none of the conduct described on this web page is judicial misconduct under the Judicial Misconduct and Disability Act.  Judge Edmondson is of the apparent belief that a federal judge may knowingly violate statutes of Congress and the decisions of the United States Supreme Court and of the Circuit Court of Appeals and still not be sanctioned for misconduct.   See Complaints of Judicial Misconduct, Case Nos. 05-0011, 05-0021.


 

The U.S. Supreme Court, "SCOTUS", Right of Access to the Courts, On the Importance of Due Process,  and Void Orders.

DUE PROCESS

“Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ of which the Court speaks can be won only if judges honor the Constitution.” Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)/a>(Mr. Justice Douglas, dissenting). “Due process is perhaps the most majestic concept in our whole, constitutional system.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 174 (1951) (Justice Frankfurter, concurring). It is ingrained in our national traditions, and is designed to maintain them. In a variety of situations, the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution." id. 161. "Fairness of procedure is "due process in the primary sense." Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 281 U. S. 681.

In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Right of Access To Courts is Constitutionally Protected

The right of access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102 (1996). The Supreme court has stated the right of access to the courts also protected by the First Amendment. BE&K Construction CO. v. National Labor Relations Board et al. 536 U.S. 516 (2001)("the right to petition extends to all departments of the Government,” and that “[t]he right of access to the courts is … but one aspect of the right of petition."). California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972)("The right of access to the courts is indeed but one aspect of the right of petition."). See Tennessee v. Lane, 541 U.S. 509 (2004)(recognizing "the fundamental right of access to the courts"); Procunier v. Martinez, 416 U.S. 396 (1974)("The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to hallenge unlawful convictions and to seek redress for violations of their constitutional rights.").

Orders Issued Inconsistent With Due Process Are Void

A judgment is void if the rendering court acted in a manner inconsistent with due process of law. Wright & Miller, Federal Practice and Procedure 2862. "A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere." World-Wide Volkswagen Corp. V. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821). “'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). 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., s 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)

Effect of Void Order

“A void judgment is from its inception a legal nullity.” Boch Oldsmobile, at 909 F.2d 657, 661 (1st Cir. 1990). Lops v. Lops, 140 F.3d 927, 941 n. 19(11th Cir. 1998) (“something that is null has no legal or binding force.”); Carter v. Fenner, at 136 F.3d 1000 (5th Cir. 1998)(“[a] void judgement is one which, from its inception, was a complete nullity and without legal effect.”). Anderson v. Dunn, 19 U.S. 204, 217 (1821)(“the constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.”);

"The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal." Windsor v. McVeigh, 93 U.S. 274;23 L.Ed. 914 (1876).


 

Case Law On Pre-Filing Injunctions

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. In Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his 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 ). See Sires v. Fair, 107 F.3d 1;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 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) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)("Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.") ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); 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). 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.,501U.S. 32, 50 (1991).


Pre-filing Restrictions

1. Plaintiff Marcellus M. Mason is Permanently enjoined

from filing any additional pleadings in case numbers 99-14027- CIV-GRAHAM, 00-14116-CIV-GRAHAM, 00-14201-CIV-GRAHAM, 00-I4202- CIV-GRAHAM, 00-14240-CIV-GRAHAM, 01-14074-CIV-GRAHAM, 01-14078- CIV-GRAHAM, and 01-14230-CIV-GRAHAM or from filing any new lawsuit which relates in any way to Plaintiff Marcellus M. Mason's former employment and/or subsequent interactions with Defendants without first receiving permission from the Court, as set forth below. This injunction shall apply equally to any persons or entities acting at the behest, direction, or instigation, or in concert with Marcellus M. Mason.

2. Any request for permission to file a new lawsuit relating to the issues in the above captioned cases and/or Mason's former employment and/or subsequent interactions with Defendants SHALL be in the form of an application filed with the Clerk of Court and addressed to United States District Judge Donald L. Graham. This application shall consist of a one paragraph explanation of the issues in the proposed lawsuit, shall contain the names of all proposed parties and shall not exceed one page. The application shall not include any proposed pleadings.

See Docket Entry No. 878.