God Damn the First Amendment !
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TABLE OF CONTENTS
God Damn the First Amendment
Judge Graham Refuses To Cite Legal Authority
Judge Graham Defies First Amendment And Supreme Court
First Prior Restraint In
Over Two Hundred Years
Pre-Filing Injunction
Banned Out of Court Communications
Pertinent History
God Damn the First Amendment
The First Amendment, United States Constitution says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
U.S. Dist Judge Donald L. Graham and his Magistrate, Frank Lynch Jr., have exhibited an animus and disdain for the First Amendment that is both damning and contemptuous. In an unpublished decision, these men have issued the first prior restraint on pure speech in over 200 years. It is obvious that Judge Graham disagrees with the First Amendment. On June 13th and July 6th2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue asked the Magistrate, Frank Lynch Jr.` 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 .
In record speed*, Magistrate Judge, Frank Lynch, Jr., granted the motions for preliminary injunctions on June 19, 2000, (DE#201), and July 25, 2000, (DE#246), Judge Graham's Magistrate, Frank Lynch issued the following injunctions, enjoining the Plaintiff, Marcellus Mason, Jr. from communicating with his government, Highlands County Board of County Commissioners, directly. Judge Graham's Magistrate, Frank Lynch, Jr., gave the following directive with Judge Graham's explicit approval:
[D]efendants' Motion for Preliminary Injunction is Granted in that the 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 . Plaintiff shall correspond only with Defendants' counsel .
See (DE#201).
Moreover, Judge Graham and his Magistrate, Frank Lynch Jr., federal judges, have taken for themselves the legal authority to deny a citizen its right to demand public records, under Florida Law, from the government directly. Consider the following:
[P]laintiff shall correspond only with Defendants' counsel including any requests for public records...
See (DE#246).The United States Congress explicitly excluded Federal Magistrate's from issuing injunctions:
“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 t4agistrate 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.
On September 20, 2001, Judge Graham affirmed his "inherent authority" to prohibit direct communication with the government by a non-lawyer and stated: "including continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants' employees. Mason, however, ignored the Court's order and continued to contact the Defendants." Docket No. 878. Imagine that, a citizen communicating with the government!
Judge Graham and Magistrate Refuse to Cite Legal Authority
Judge Graham and his Magistrate has had multiple opportunities to cite legal authority for these orders prohibiting direct communication with the government, but adamantly refuses to do so. It is as if Judge Graham is saying, "You will not communicate with the government directly because I said so, the law and the constitution notwithstanding." Marcellus Mason submitted several motions asking Judge Graham and his Magistrate where they got the legal authority to issue the above orders, and each time Judge Graham his Magistrate refused.
| Docket No. 279 | Docket No. 281 | Docket No. 407 |
| Docket No. 524 | Docket No. 528 | Docket No. 634 |
| Docket No. 744 | Docket No. 745 | Docket No.874 Pg. 2 |
| Docket No. 882 | Docket No. 890 | Docket No. 928 |
| Docket No. 931 |
ORDER ON PLAINTIFFS MOTION FOR CLARIFICATION (DE #262) THIS CAUSE haying come on to be heard upon the aforementioned Motion, and this court having reviewed the Motion and the response, and being otherwise advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff's Motion for Clarification is DENIED, it is further ORDERED AND ADJUDGED that Plaintiff shall comply with the terms and provisions of this Court's Order, filed July 25, 2000, and any violations of the order will result in the imposition of sanctions or dismissal with prejudice as to all plaintiffs claims.Docket No. 281 The only explanation Mason has received thus far is the negative cite below: If the Plaintiff was represented, his attorney would know that this is proper procedure. .
Judge Graham Defies the First Amendment and the U.S. Supreme Court
"In its nearly two centuries of existence, the Supreme Court has never upheld a prior restraint on pure speech. " Providence Journal Co, at 820 F.2d 1348. The presumption of unconstitutionally of prior restraints has been described as “virtually insurmountable” by Supreme Court judges and others. In Re Providence , at 820 F.2d 1348 (citing Near, 283 U.S. at 713).In over two centuries, the United States Supreme Court, composed of nine Article 3 judges, has never upheld a prior restraint involving pure speech; however, in this matter, a statutory judge, Magistrate Judge Frank Lynch, Jr. and Judge Donald L. Graham breezes right through this barrier and issues a prior restraint on pure speech with no problem.LAW ON PRIOR RESTRAINTS
“[P]ure speech –[is]- speech not connected with any conduct..” In Re Providence , at 820 F.2d 1348. “'Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.'; see also Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The Government 'thus carries a heavy burden of showing justification for the imposition of such a restraint.'” New York Times Company v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971);Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963)) . “[T]he principal purpose of the First Amendment's guaranty is to prevent prior restraints.” In Re Providence at 820 F.2d 1348. “Prior restraints are presumptively unconstitutional and face strict scrutiny.” Burk v. Augusta-Richmond County , 365 F.3d 1247 (11th Cir., 2004). "In its nearly two centuries of existence, the Supreme Court has never upheld a prior restraint on pure speech. " Providence Journal Co, at 820 F.2d 1348. The presumption of unconstitutionally of prior restraints has been described as “virtually insurmountable” by Supreme Court judges and others. In Re Providence , at 820 F.2d 1348 (citing Near, 283 U.S. at 713). The Supreme Court has refused to uphold a “prior restraint” even when the matter of national security was involved. See New York Times, at 403 U.S. 713, above. In Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 578 (Fed. 5th Cir., 2005), the district court “enjoined Singh 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.” The Fifth Circuit, (citing Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993), defined “prior restraints” thusly: Prior restraints are "administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Id. at 579. The Fifth Circuit then expressly declared: “The district court's order enjoining Singh from having any future communication with the specified persons was a prior restraint.” Id. The Court went on to find:To quote selectively from the district court, the court found that the parties had demonstrated an "immaturity" and "mean-spirited[ness]," and that Singh was pursuing "vexatious litigation." However, despite the perhaps need of these parties to never speak again, the court did not detail, and the record does not reflect, any "exceptional circumstances" to justify permanently enjoining Singh from generally communicating with TES, TES's counsel and their staff and employees. The district court's order enjoining Singh from communicating with TES employees, TES's counsel, and its counsel's employees was a prior restraint limiting Singh's first amendment rights, and because the injunction order is not supported by exceptional circumstances, it is an unconstitutional restraint on Singh's free speech rights. *** The cantankerous relationship between these parties is clearly evident from the record in this case. There is enough evidence presented in the record to justify an injunction order prohibiting Singh from threatening or harassing TES, its employees, its staff, TES's counsel, counsel's employees, or counsel's staff. However, the injunction here went beyond enjoining harassing and threatening conduct. The district court's order swept too broadly when it prohibited all communication between Singh and TES employees, staff or TES's counsel, counsel's employees or counsel's staff. Id at 579-80.If the Plaintiff in Test Masters has the first amendment right to engage in hostility and vitriol with a private entity, then surely Mason has the same right to engage in hostility and vitriol with a government entity like Highlands County that the First Amendment expressly permits, Judge Lynch’s personal notions of civility notwithstanding. Bernard v. Gulf-Oil Co., 619 F.2d 459, is likewise instructive and analogous to the instant case. “Material unequivocally not protected by the Constitution may be the subject of a prior restraint if sufficient procedural safeguards are provided.” Id. at 471. > Stated alternatively, material unequivocally protected by the Constitution may not be the subject of a prior restraint. Mason’s right to “to petition the government for a redress of grievances” or Highlands County is expressly protected by the First Amendment.If the exigencies of the Sixth Amendment do not lessen the burden on those who seek to justify prior restraints, the interests of a civil litigant cannot do so. (internal citations omitted). The "interest of the judiciary in the proper administration of justice does not authorize any blanket exception to the first amendment." . Thus, the general presumption against prior restraints is not mitigated by a claim that the fair and orderly administration of justice is at stake. Id. at 474. The Magistrate’s heretofore undisclosed interest in rendering the “discovery orders” in the instant case clearly does not even rise to level of the Sixth Amendment interests in Bernard, nor the national security interest in New York Times, above.
Pre-Filing Injunction Violates First Amendment
On September 20, 2001, or three months after the closed on June 20, 2001, Judge Graham concocted a pre-filing injunction, sua sponte. Docket Entry No. 878. Sua sponte means on the court's own motion and without a request from any party in the lawsuit. In this matter, the pre-filing injunction required Mason to seek the permission of Judge Graham to file a motion or a lawsuit, or leave to file. It is black letter law that a filing injunction may not issue prior to notice and opportunity to respond. 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 Case Law. 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).The pre-filing injunction, Docket Entry No. 878,violated Mason's First Amendment Rights.
The First Amendment right to "petition the Government for a redress of grievances" -- which includes the filing of lawsuits -- is "one of 'the most precious of the liberties safeguarded by the Bill of Rights.' " BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524, 122 S. Ct. 2390, 153 L. Ed. 2d 499 (2002) (quoting United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 88 S. Ct. 353, 19 L. Ed. 2d 426 (1967)). Consequently, a determination that a litigant has repeatedly filed frivolous and harassing [*3] lawsuits itself implicates his First Amendment interest in access to the courts. Indeed, where an individual's use of the courts is declared abusive or baseless, "the threat of reputational harm[,] . . . different and additional to any burden posed by other penalties," is alone sufficient to trigger First Amendment concerns. See id. at 530.Molski v. Evergreen Dynasty Corp., 2008 U.S. App. LEXIS 7372 (9th Cir. 2008).
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)
Pertinent History [Case No. 99-14027-CV-Graham/Lynch]
On June 15, 2000, Docket Entry 199, and July 12, 2000, Docket Entry 231, Maria Sorolis and Brian Koji, Allen, Norton & Blue asked Judge Graham's Magistrate, Frank Lynch, Jr., to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants, the Highlands County Board of County Commissioners. 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 by the Magistrate, Frank Lynch, Jr., on June 19, 2000 and July 25, 2000.(DE #201). This order is dated June 19, 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. Judge Graham and the Magistrate absolutely refused to state where they got the legal authority from to issue these orders.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.
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. Judge Graham ultimately dismissed this lawsuit on June 20, 2001 because of alleged out of communications between Marcellus Mason and the Highlands County Government. See Docket Entries 766 and 791.