U.S. Dist. Judge Donald L. Graham Uses Office To Commit Criminal Acts To Save His Career

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Justice Turned On Its Head
Judge Donald L. Graham is Above the Law!!!
 

 

Judge Donald L. Graham

 

Purpose of This Post

The purpose of this post is to make the case that the United States Department of Justice, "USDOJ", should indict U.S. Dist. Judge Donald L. Graham on criminal charges and allow a jury to decide the dispositive fact issue of "intent". This post will document multiple instances where Judge Graham has demonstrated a complete and utter disregard for the rule of law. At the very least, the Dept. Of Justice should bring an indictment to set the boundary for where a "judicial act" ends and criminal conduct begins. At the bottom, Judge Graham's behavior is "only" arguably criminal which is enough to create a fact situation for a jury should decide. Under the facts described in this post, it is difficult to see how anybody not wearing a robe would not have been indicted and tried. While not the primary purpose of this post, the behavior of the individual judges of the Eleventh Circuit, U.S. Court of appeal is implicated as well. The Eleventh Circuit, with full knowledge of almost every allegation leveled herein, has taken extreme measures to avoid disciplining Judge Graham thereby enabling him by emblazoning an "S" on Judge Graham's chest. It appears that the Eleventh Circuit is composed of mere sycophants for Judge Graham. If Judge Graham is guilty of criminal conduct, then certain members of the Eleventh Circuit are co-conspirators. If Judge Graham and other federal judges were held to same ethical and moral standards as U.S. Army Officers, and there is no reason why they shouldn't be, then Judge Graham and other culpable judges would be court-martialed and others would be forced to resign their seat on the bench or "command".

This post will make the case that Judge Graham and others have violated 18 U.S.C. § 241 and 18 U.S.C. § 242 by willfully and deliberately violating Marcellus Mason's civil rights. These statutes are not so infrequently invoked by the DOJ to prosecute police officers who improperly and criminally violate civil rights. The case will be made by documenting the following:
  • Listing the standards for prosecutions based upon 18 U.S.C. § 241 and 18 U.S.C. § 242 .
  • Listing clearly unlawful acts committed by Judge Graham.
  • Prove intent of "bad faith" by offer of an affidavit under the penalty of perjury and an offer to take a polygraph test, with a challenge to Judge Graham and his supporters to do the same.
  • Prove intent of "bad faith" by circumstantial evidence.
  • Prove intent of "bad faith" by deductive reasoning. Judge Graham has intentionally misstated material facts in order to get the result he desired. This post will prove that Judge Graham had no reason to believe that his lawless behavior was taken for any known lawful reason, leaving only unlawful motives as the real possibilities for his lawless behavior.

Lastly, an ancillary or incidental purpose of this post to demonstrate how Judge Graham and his supporters like Chief Judge Larry Edmondson, Eleventh Circuit, U.S. Court of Appeals, and others cynically mock the American Bar Association, "ABA", and its' koolaid of "judicial independence".  This post only describes a small part of Judge's Graham's abusive acts and misconduct for more complete list of misconduct see http://mmason.freeshell.org/CoreAllegations.htm.

Organization Of This Post

This post is rather large and somewhat time consuming. As this post accuses a Federal Judge, Donald L. Graham, of possible of criminal behavior it must have substantial factual and legal support. This post is divided into legal authority and factual support. This entire post can be read in less than five minutes by simply referring back to this section and following the support for each argument listed below. This post argues that Judge Graham should be criminally indicted because his behavior crossed the line between a "judicial act" and "criminal conduct". This post alleges criminal violations of civil rights and concealing U.S. Government documents. Firstly, under the guise of a "judicial act", Judge Graham committed a "criminal act by violating the civil rights of Marcellus Mason by manufacturing a criminal contempt complaint and conviction out of whole cloth. This allegation is supported by the following facts:
  • Judge Graham denied Mason due process by disregarding the requirements of Federal Rule of Criminal Procedure 42(b) by failing to state "the essential facts constituting the criminal contempt charged" and describing them such. The supposed show cause order rendered by Judge Graham describes "contemptuous acts" that are completely different from the information filed by the Government. The bench trial proceeded based upon the information and not the "essential facts" or ""contemptuous acts" listed in the show cause order. See "Judge Graham Violated Mason's Due Process Rights by Disregarding the Criminal Contempt Procedure", below
  • Judge Graham used a clearly void sua sponte issued pre-filing that was rendered on September 20, 2001 [Docket Entry No. 878 or (D.E. 878)] to form the basis of a criminal contempt complaint and conviction. The information alleges a violation of this sua sponte issued pre-filing injunction. This sua sponte issued pre-filing injunction has multiple due process flaws and jurisdictional defects. This sua sponte issued pre-filing injunction lacks the requisite factual finding. This sua sponte issued pre-filing injunction misstates material facts. Judge Graham is willingly flaunting the law. See "Judge Graham Is Willfully Flaunting The Law", below.
  • The Eleventh Circuit, U.S. Court of appeal assisted Judge Graham in denying Mason's civil rights by repeatedly refusing to review this sua sponte issued pre-filing injunction for validity. See "The Co-Conspirators and Appellate Review", below. This sua sponte issued pre-filing has never been reviewed for validity.
  • Judge Graham was motivated in part by his desire to intimidate and retaliate against Mason for filing 28 U.S.C. § 372(c) against him. See "Circumstantial Evidence and Judge Graham's Motive ", below.
  • Judge Graham used the criminal contempt procedure to attempt to force Mason to drop a lawsuit against him. See "Contempt Abuse And Coercion To Drop Lawsuit Against Judge Graham ", below.
  • Judge Federico A. Moreno, a colleague of Judge' Graham refuses to endorse Judge Graham's abusive conduct with respect to the contempt procedure and conviction. Judge Moreno makes only the mitigating argument that Judge Graham did not act in bad faith. See "Chief Judge Federico A. Moreno Declines to Endorse Judge Graham", below.
Secondly, Judge Graham gave himself permission to conceal and withhold from public scrutiny and the Clerk of Court documents belonging to the United States Government. Judge Graham acted in contravention of 18 U.S.C. § 2071. See "Judge Graham Concealed United States Court Documents", below.

The Legal Authority On Subjects Covered In this Post:

Reasons Why The Dept. Of Justice Should Act

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The USDOJ should act to vindicate the rule of law. It should make clear that clearly abusive and lawless acts that lead to improperly jailing individuals simply will not be tolerated. In a world where Hollywood types are seemingly routinely prosecuted for criminal acts because they are not above the law, it is inequitable to allow a rogue judge to commit criminal acts under the guise of "judicial authority". The system does not work when Judges disregard clearly established law. The system is furthered damaged when the appellate courts and its judges contort the law through unpublished decisions to keep from disciplining a colleague and a rogue judge. The Dept. Of Justice should proceed criminally in this matter because Judge Graham's behavior has had a corrupting influence on our system of justice by causing other judges to contort the rule of law to support him. This matter should be handled by the civil service and career prosecutors in the Justice Department.

Introduction

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U.S. Dist. Judge Donald L. Graham, like John Gotti, is derisively, but factually nevertheless, referred to as "Teflon Don". John Gotti was called the "Teflon Don" because of his amazing ability to escape prosecution for his heinous acts. Similarly, Judge Graham has managed to escape both public scrutiny and sanctions for his acts of misconduct and abusive behavior. Given a choice, and moral priorities, it would be better to allow John Gotti and his minions to go free rather than having Judges like Donald L. Graham sit on the federal bench disregarding the rule of law anytime he sees fit with apparent impunity. Like John Gotti, Judge Graham may even be guilty of criminal behavior. In a country that allows the U.S. Attorney to get convictions on a conspiracy without proving the underlying crime, there is no reason why Department of Justice can not get a criminal indictment on Judge Graham for the behavior documented below and elsewhere .

The ABA and Judicial Independence

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This post posits that the American Bar Association and its zealous efforts to knee jerk reaction to assert the notion of "judicial independence" is a part of the problem and not the solution. Judges should not feel free to engage in reckless and lawless behavior. Lawless behavior and egregious misconduct should have legal consequences for the judge.

Egregious "Legal Error" and Judicial Misconduct

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"A single instance of serious, egregious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduct. Judicial Ethics, supra, 2 Geo. J. Legal Ethics at 9; Gerald Stern, Is Judicial Discipline in New York State a Threat to Judicial Independence?, 7 Pace L.Rev. 291, 303 (1987). An example of this is where a judge told the jurors sitting on a criminal case to "go in that room and find the defendant guilty," thereby depriving the defendant of his fundamental right to be tried by a jury. McCullough v. Commission on Judicial Performance, 49 Cal.3d 186, 260 Cal.Rptr. 557, 776 P.2d 259 (1989). Intentionally refusing to follow the law constitutes a legal error made in bad faith and may also be grounds for a finding of judicial misconduct. Judicial Ethics, supra, 2 Geo. J. Legal Ethics at 9. Finally, a pattern of repeated legal error (although not necessarily the same error) over a period of time can constitute judicial misconduct, regardless of whether the errors were made in bad faith or were egregious in nature." In re Quirk, 705 So.2d 172 (La., 1997).  Judge Graham's behavior far exceeds this definition. 

Authority to Seek An Indictment of Judge Graham

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The United States Department of Justice has made clear that Judge Graham, a U.S. Dist. Judge Graham is not immune from prosecution under 18 U.S.C. §§ 241, 242:
Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

See URL: http://www.usdoj.gov/crt/crim/242fin.htm.

18 U.S.C. § 241 states:

§ 241. Conspiracy against rights

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

18 U.S.C. § 242 states:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Charging A 18 U.S.C. 242 Violation

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"To prove a defendant violated 18 U.S.C. § 242 by acting “under color of law” to deprive another of “any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,” the government must establish beyond a reasonable doubt that (1) the defendant’s conduct deprived the victim of rights secured or protected by the Constitution or federal law; (2) the defendant acted willfully; and (3) the defendant acted under color of law. United States v. Lanier, 117 S. Ct. 1219, 1224 (1997." United States Of America v. Picklo, 2006 U.S. App. LEXIS 18924,*; 190 Fed. Appx. 887;(11th Cir. 2006)." The Supreme Court has held the term “color of law” is to be given the same meaning in the context of criminal prosecutions under 18 U.S.C. § 242 and civil suits under 42 U.S.C. § 1983. Monroe v. Pape, 81 S. Ct. 473, 482-84 (1961), overruled on other grounds, Monell v. Dep’t of Soc. Servs. for New York, 98 S. Ct.2018, 2022 (1978). Determining whether a defendant acted under color of law involves an assessment of the totality of the circumstances. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303-04 (11th Cir. 2001). Color of law means “pretense of law,” and it does not necessarily mean under authority of law." Id. A sample indictment of Judge Graham need only assert the following:
The Grand Jury in and for the Southern District of Florida, sitting at Miami,FL charges:
From in or about September 2001 through in or about February 20, 2008, at Miami, Florida, in the Southern District of Florida, and elsewhere, defendant Donald L. Graham did knowingly and intentionally conspire and agree with co-conspirators #1 and #2 and others to violate the civil rights of Marcellus Mason, contrary to Title 18, United States Code, Sections 241 and Title 18, United States Code, Section 242. The Defendant concealed documents belonging to the United States Government in violation Title 18, United States Code, Sections 2071.
"To be deprived of liberty "without due process of law" means to be deprived of liberty without authority of the law." Jones v. Board of Police Commissioners, 844 F.2d 500 (8th Cir. 1988). Judge Graham violated Mason's civil rights by, among other things, having Marcellus Mason incarcerated and placed on probation when he clearly had no legal authority to do so. Judge Graham gave himself permission to conceal documents belonging to the United States Government.

Chief Judge Federico A. Moreno Declines to Endorse Judge Graham

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This website and related sites makes serious allegations that are supported with substantial documentation and citations to legal authority. This post will not vary from that standard; however for the "player haters" who would defend Judge Graham despite the facts, this post will start with the less than "ringing endorsement" of Judge Graham's behavior offered by Judge Graham's colleague and the Chief Judge, Southern District of Florida, Judge Federico A. Moreno.

Chief Judge Federico A. Moreno was sent a letter on March 25, 2008 and told of the behavior described below and he declined to endorse Judge Graham's behavior or deny any of the allegations listed below. In a letter dated April 4, 2008, Judge Moreno wrote:
I am in receipt of your letter written to me as a Chief Judge of the Southern District of Florida about actions by Judge Donald Graham. In that letter, you also complained about the Chief Circuit Judge J.L. Edmondson. As you can understand one district judge cannot review the actions of another district judge. This rule applies to the Chief Judge of the District as well. It is before the Eleventh Circuit Court of Appeals in Atlanta that any complaint as to a ruling made by a District Judge can be made, I assure you that any decision rendered by Judge Graham was made in good faith upon what he perceived to be the law. Judge Graham has an impeccable reputation. However, if you feel that a judge has erred, the appellate judges in Atlanta are the ones who can decide what to do about it. Thank you for writing.

This is not a ringing endorsement and is a good indicator of Judge Graham's lawless behavior.

Judge Graham Violated Mason's Due Process Rights by Disregarding the Criminal Contempt Procedure

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Judge Graham failed to provide Mason with the notice required under Rule 42(b), Federal Rules Of Criminal Procedure. The show cause order rendered by Judge Graham "had nothing to do with the criminal contempt charge" and information. “[A]n alleged contemnor is entitled to the protection of the due process clause.” Skinnerv. W. White, 505 F.2d 685 (5th Cir. 1974)(citing Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 69 L.Ed. 767 (1925)). There is a very specific procedure that must be followed prior to any trial on criminal contempt that must be followed. “An indirect criminal contempt action must be instituted pursuant to the notice requirements set forth in Rule 42(b) of the Federal Rules of Criminal Procedure.” See Criminal Resource Manual at 762, United States Department of Justice. “A criminal contempt sanction must be issued in accordance with the procedures set out in Fed.R.Crim.P. 42.” Martinv. Guillot, 875 F.2d 839;53 Ed. Law Rep. 1113 (11th Cir. 1989); United States v.United Mine Workers, 330 U. S. 258 (1947) (“ Rule 42(b) of the Rules of Criminal Procedure.. requires criminal contempt to be prosecuted on notice stating the essential facts constituting the contempt charged.”). Judge Graham was “required to "state the essential facts constituting the criminal contempt charged and describe it as such." This notice must be given by the judge in open court,"or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. Young v. U.S. Ex Rel. Vuitton Et Fils, 481 U. S. 787, 794 (1987); Harris v. United States, 382 U. S. 162,165 (1965). In Martin, the case was reversed because the following procedures, Rule42(b), were not followed:


(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.
Id. n.7.

On May 7 2002, Judge K. Micheal Moore was assigned to handle the "contempt proceedings only" arising out of the civil case, 99-14027-DLG which was docketed under Criminal Case No. 02-14020. See “Order of Recusal”, (D.E. #1). The Order to Show Cause, Civil Case No. 99-14027, (D.E. #900) is attached to the “Order of Recusal”, (D.E.#1) as “Exhibit A”. This Order to Show Cause, Civil Case No. 99-14027, (D.E. #900), the only "show cause" order ever filed, according to the presiding Judge and the Assistant U. S. Attorney had nothing to do with criminal contempt case and the information filed in this matter. 18 U.S.C. § 401 provides the statutory basis for a criminal contempt complaint and it states:

A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
The order to show cause makes a general reference to 18 U.S.C. § 401 and fails to mention the specific subsection under 18 U.S.C. § 401 that was supposedly violated. See Show Cause Order, pg. 7. ("ORDERED AND ADJUDGED that pursuant to 18 U.S.C. § 401 and Federal Rule of Criminal Procedure 42(b), Mr. Mason is directed to show cause why he should not be held in criminal contempt of this court."). The information filed in the matter cited 18 U.S.C. § 401(3) and alleged:
Beginning on or about September 20, 2001, and continuing to on or about November 1, 2002, in Highlands County, Dade county, and elsewhere, in the Southern District of Florida, the defendant, MARCELLUS M. MASON, Jr., did willfully and knowingly disobey and resist a lawful order of a Court of the United States, that is, the order issued by the Honorable Donald L. Graham, United States District Judge, on September 20, 2001, in the Southern District of Florida, in the case of Marcellus M . Mason v. Highlands County Board of County Commissioners, et al., Case Numbers:

99-14027-CIV-GRAHAM/LYNCH;...


by repeatedly filing pleadings, motions, memoranda, and directly contacting other litigants in the above cited cases, after specifically being enjoined from and ordered not to file any such pleadings or contact other litigants by Court Order dated September20, 2001, in violation of Title 18, United States Code, Section 401(3).
See Docket Entry No. 6.The show cause order is completely different in that only alleges specific comments about Judge Graham personally that Judge disagrees with. e.g., " In this letter he wrote: 'I came to your 'Court' or now joke, looking for justice '"; See Show Cause Order, pg. 6. "In this letter he wrote: '[j]udge's with egos and thin skins have no right to be in the justice business.' " Id.

Thus it is clear the the show cause order and the information are completely different. In fact, both Judge K. Michael Moore and the Government denied that a hearing held on April 8, 2002 as a result of summons or Order to Show Cause, Civil Case No. 99-14027, (D.E. #900). issued on March 22, 2002 was the notice required in this matter. In defeating a speedy trial act violation, the government and AUSA Robert Waters went to great lengths to separate the hearing and the notice given on April 8, 2002 and the information filed in December 2002. The Government has stated:

Defendant also complains that his speedy trial rights have been violated. He is mistaken. Defendant bases his argument on the premise that he was arraigned or had an initial appearance on April 8, 2002. This was well before the Information in this case was filed (December 2002). In fact, the hearing before Magistrate Judge Frank J. Lynch had nothing to do with this case.  See (D.E. #36, pg 3).

A careful reading of the transcript of that hearing (Attachment A) reveals it had nothing to do with the case at bar. That hearing was to advise defendant that the Court was considering summary contempt proceedings against him arising out of his civil case. This type of contempt proceeding is separate and distinct from that involved in this case.  See (D.E. #36, pg 3).
In order to drive home the point that the hearing and summons held April 8, 2002 was not related to the instant case, the government and AUSA Robert Waters asserted:

It is clear from the order that caused the April 8 hearing, and the transcript from that hearing, that summary contempt was contemplated, and the required notice was given to the defendant at that hearing and the required warning to desist in the behavior causing the contempt. United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965); United States v. Brannon. 546 F.2d 1242 (5th Cir. 1977). As such, this hearing on a summary contempt proceeding had nothing to do with the criminal contempt charge brought months later by Information.
See (D.E. #36, pg 4).

The Criminal Acts, Part 1

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Judge Graham took an order that he knew for certain was totally devoid of both legal and factual support and made it form the basis of a criminal contempt complaint and conviction. This order, a clearly void sua sponte issued pre-filing injunction, has had the following impact on the life of Marcellus Mason:
  • 41 days in jail
  • The matter has terrorized both Mason and his children
  • 5 years supervised release probation>
  • A special condition that precluded Mason's use of the Internet. This is a really pernicious punishment as Mason made his living as a MCSE, Microsoft Certified System Engineer, CNE, Certified Novell Engineer working on computer networking and internetworking systems.
  • $200,000 in legal fees
  • Dismissal of an otherwise meritorious lawsuit>
  • Intimidation by the abuse of the U.S. Marshal's Office and the power of U.S Attorney to Stop Criticism of Judge Graham, See mcneilmason.wordpress.com, post "Power of US Government Used To Suppress Criticism of U.S. Dist. Judge Graham".

On September 20, 2001 Judge Graham rendered a pre-filing injunction, sua sponte, or on his motion without any urging from any party. On September 20, 2001, Judge Graham issued an filing injunction or pre-filing injunction against Marcellus Mason sua sponte. (D.E. #878). This order specifically states: “THIS CAUSE came before the Court sua sponte.” (D.E. #878, pg. 3;). 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). This sua sponte issued pre-filing injunction is void and invalid for the following reasons, each of which standing alone is fatal to the validity of the sua sponte issued pre-filing injunction:
“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)(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.

The Pre-Filing Injunction Was Issued For An Unlawful Purpose

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The record and the law clearly establish that the sua sponte issued filing injunction was rendered for an improper purpose. “[B]efore a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court to make "substantive findings as to the frivolous or harassing nature of the litigant's actions… To make such a finding, the district court needs to look at "both the number and content of the filings as indicia" of the frivolousness of the litigant's claims.” De Long, at 912 F.2d 1148. See May vs. Shell Oil Company, 2000 U.S. Dist. LEXIS 14786, *7 (S.D. Fla. 2000)(“courts have a duty to ensure that frivolous or meritless lawsuits do not interfere with their constitutional function:”)[1]; Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985)(holding that an injunction’s purpose is to fashion a remedy to stem the flow of frivolous actions);Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989)(“Litigiousness alone will not support an injunction restricting filing activities.”); Ruderer v. United States, 462 F.2d 897, 899 (8th Cir. 1972) ("affinity for litigation, standing alone, would not provide a sufficient reason for issuing such an injunction.”). Nowhere in the sua sponte issued pre-filing injunction does it identify one single lawsuit that Mason filed that was frivolous. As a matter of act, Judge Graham is precluded by law from asserting that D.C. Case No. 99-14027-CV was without merit because Judge Graham refused to rule on pending summary judgments by both Highlands County and Mason[2]. A court does not have the duty to protect itself from non-frivolous litigation. It is not unlawful to prosecute a meritorious action. See Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). “Access to the courts is a fundamental tenet of our judicial system; legitimate claims should receive a full and fair hearing no matter how litigious the plaintiff may be.” In re Oliver, at 682 F.2d 446. It was Judge Graham himself who adopted the following: “However, at this point, none those other cases have totally dismissed with prejudice. There are viable claims pending in those cases. * * * While there are other pending cases between these parties, there is nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look for justifying injunctive relief.” Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01). Furthermore, at no time during any litigation that Mason was involved in did Judge Graham impose any Fed.R.Civ.P. Rule 11 sanctions or threaten to do so for filing motions that lacked a substantial basis. The district court uses a “scatter gun” that doesn’t hit the essential core requirement for issuing a pre-filing injunction. [1]Judge Graham is fully aware of the frivolous requirement because it was his court that cited May vs. Shell Oil Company, 2000 U.S. Dist. LEXIS 14786, *7 (S.D. Fla. 2000). See Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01).

[2]See (Doc. 507);(Doc. 667);(Doc. 668) );(Doc. 706);(Doc. 797). Incidentally, the Defendants have tacitly admitted by not refuting with record evidence, that the Plaintiff has made a prima face case. See Defendants’ Summary Judgment Motion, (Doc. 769, Pg. 7).

Judge Graham Intentionally Misstated Materials Facts

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Judge Graham was even willing to lie or at best, tell a half truth to justify this injunction, for example, Judge Graham states:
Plaintiff Marcellus M . Mason ( "Mason") has filed eleven (11) cases and/or counterclaims in this District, all against either the Highlands County Board of County Commissioners, the Highland Library Cooperative and/or various board members or employees of the County and Library .(collectively the "Defendants"). Each case relates to his prior employment by Defendants and Defendants' treatment of Mason after his termination.

See (DE#878, pg. 3)
The record clearly states that Mason only "filed" four lawsuits. These four lawsuits were consolidated into one lawsuit, Case No. 99-14027-CV-Graham. See litigation, or Lawsuits Filed.

Judge Graham Is Willfully Flaunting The Law

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The information in this section is taken directly from another blog post,
"Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?", which offers even more evidence that Judge Graham is deliberately disregarding the law and the United States Supreme Court. The best evidence that Judge Grahams knows that the right of access to the courts is constitutionally protected is Judge Graham’s own writing in the very sua sponte issued prefiling injunction of September 20, 2001. In this order, Teflon Don states:

This screening requirement best balances the interest in constitutionally mandated access to the federal courts with the need to protect the Court’s jurisdiction and integrity.

See pg. 7, Docket No. 878, (D.E. #878).

Judge Graham knows that a constitutionally protected right is subject to due process. RODRIGUEZ v US, 169 F.3d 1342 (11th Cir. 1999) was a case about due process in which Judge Donald L. Graham presided over at the district court level, Case No. 97-1182-CV-DLG. See Findlaw.com, vlex.com. RODRIGUEZ cites Mathews v. Diaz, 426 U.S. 67 (1976)(”all persons, aliens and citizens alike, are protected by the Due Process Clause“). It is crystal clear that Judge Graham knows of the Supreme Court’s definition and affinity for due process. Even more compelling evidence that Judge Graham knew the law is Judge Graham’s own writings. At pages 6 and 7, of the sua sponte issued pre-filing injunction, (DE #878), Judge Graham cites three cases for his nefarious deeds: Copeland v. Green, 949 F.2d 390 (11th Cir. 1991); Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986)(en banc)); Cofield v. Alabama Pub. Serv. Comm’n, 936 F.2d 512, 518 (11th Cir. 1991). In Copeland v. Green, 949 F.2d 390 (11th Cir. 1991) the court lays out the procedure followed by the trial court or district court prior to issuing a pre-filing injunction. In Copeland, the court noted: “The district court entered an order requiring Copeland to appear and show cause why he should not be sanctioned for this abuse of his access to the court.” It is quite clear that the litigant in Copeland received notice and opportunity to respond prior to the issuance of the pre-filing injunction. Judge BARD TJOFLAT’s dissent in Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986)(en banc)), “The district court, noting the volume and nature of Procup’s previous litigation, issued an order to show cause why an injunction should not issue prohibiting Procup from filing any further pleadings in the district court.” Lastly, in Cofield v. Alabama Pub. Serv. Comm’n, 936 F.2d 512, 518 (11th Cir. 1991) the court noted that “the district court, sua sponte, issued an order to show cause asking why Cofield should not be sanctioned for his overly litigious behavior.” What better evidence of willfulness than Judge Graham’s own writings!


Additionally, as further proof that Teflon Don is willfully flaunting the law is the fact that Judge Graham was presented with a motion specifically requesting a due process hearing with respect to the sua sponte issued prefiling injunction of September 20, 2001 on 23, 2002. See Document 914, pgs. 19-24. At page 1, this motion asserts: “The injunction violated Mason’s well-established due process rights. It is inexcusable that a federal judge would knowingly issue this type of injunction in violation of Mason’s due process rights.” On January 31, 2003, Judge Graham denied the motion and refused to comply with Mason’s due process requests even though Judge Graham was in possession of a motion citing the same cases that are cited on this post.

ORDERED AND ADJUDGED that Plaintiff’s Motion to Proceed In Forma Pauperis, Plaintiff’s Motion to Disqualify, Plaintiff’s Demand to Rescind Inunction and Plaintiff’s Motion for Publication (D.E. #914) is DENIED.

Document No. 928. It can not be argued that Judge is not intentionally disrespecting the law.

The Co-Conspirators and Appellate Review

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The primary job of the Eleventh Circuit, U.S. Court of Appeal is to review orders and judgments of Judge Graham and his colleagues at the United States District Courts in Florida, Georgia, and Alabama. The Eleventh Circuit, U.S. Court of Appeals has set a Guinness world record for refusing to review this clearly void sua sponte pre-filing injunction that was rendered by “Teflon Don”, U.S. District Judge Donald L. Graham on September 20, 2001. The Eleventh Circuit has declined to review this sua sponte issued pre-filing injunction for validity no less than eight times. These denials are fully set forth below, "Long History of Refusing to Review the Sua Sponte Issued Pre-filing Injunction" and at: "Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review Sua Sponte Issued Pre-Filing Injunction" .The denials invoke a kind of creative dishonesty. As a matter of fact, the denials are not consistent and even contradict each other on each successive attempt at appellate review. Even an ardent supporter of the system would have a hard time arguing that there is not a certain amount of dishonesty involved in the matter. The point here is that there has never been any appellate review of the sua sponte issued pre-filing injunction of September 20, 2001. Yet this sua sponte issued pre-filing injunction has been used as a weapon against Marcellus Mason. The Eleventh Circuit has elevated artifice to a level that would make a shister lawyer proud. The coup de grace is the Eleventh Circuit sat idly by while this clearly void sua sponte issued pre-filing injunction was used to form the basis of a criminal contempt complaint and conviction. See this outrageous story, “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life“.

Circumstantial Evidence and Judge Graham's Motive

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When Judge Graham initiated the criminal contempt procedure on March 22, 2002, he was under siege and inundated with a bevy of Judicial Misconduct Complaints under 28 U.S.C. § 372(c).

The Criminal Acts, Part 2

Contempt Abuse And Coercion To Drop Lawsuit Against Judge Graham

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Judge Graham used the contempt process to force mason to drop a lawsuit file against him. In July 2002 , Mason received a call from his attorney, Public Defender, Leon Watts, he told Mason that Graham would drop the criminal contempt charges if Mason would drop his lawsuit, Case No. 02-14049-CIV-Moore and Appeal, Eleventh Cir. Case No. 02-13418, against Judge Graham.
On this very same day, Mason had a conference call with Robert Waters, Assistant U.S. Attorney, and Leon Watts. Mr. Waters told Mason that Judge Graham would drop contempt charges against Mason if he agreed to drop his civil lawsuit, Case No. 02-14049-CIV-Moore and Appeal, Eleventh Cir. Case No. 02-13418. Mason called his attorney, Leon Watts, the following Monday and indicated that he would not drop my lawsuit and appeal under any set of circumstances. Mason sent two complaints to the FBI to have this matter investigated. Moreover, Mason has offered to swear to this and other matters under oath, and Mason has offered to take a polygraph test to support his allegations. However, the FBI has not even acknowledged receipt of Mason's complaints, less known taken any action. It is improper to use the criminal contempt complaint procedure to force someone to drop a lawsuit against a judge.
Additionally, this matter and other related issues were communicated to the U.S. Attorney, S.D. Florida, Marcos Daniel Jiménez, on February 11, 2004. However, Mr. Marcos Daniel Jiménez has taken no action or even acknowledged receiving Mason's complaint.

A Judicial Misconduct Complaint was initiated Judge Graham for abusing the contempt process in attempt to force Mason to withdraw his lawsuit against Teflon Don.

Judge Graham Concealed United States Court Documents

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Judge Graham gave himself permission to conceal documents filed with the court that he disagreed with. Court documents addressed to the clerk are property of the United States government and are not the individual papers of any judge, clerk, lawyer, or any other person. Teflon Don has violated 18 U.S.C. § 2071 by improperly concealing or causing to be concealing my filings and submissions to the Southern District of Florida. 18 U.S.C. § 2071 in pertinent part states:
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.


(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.
In Case No. 01-14310-CIV-Graham, Graham has concealed or caused to be concealed the following documents that I have submitted to the Southern District of Florida:
  1. Plaintiff's Motion To Recuse, dated October 22, 2001.
  2. Plaintiff’s Notice Of Filing And Notice Of Non-Compliance, dated 11-30-01.
  3. Addendum to Plaintiff's Motion To Remand To State Court And Plaintiff’s Vehement Objections To Defendants’ Notice Of Removal, dated 12-1-01.
  4. Plaintiff’s Reply To Defendants’ Response To Plaintiff’s Notice Of Filing And Notice Of Non-Compliance. Defendants’ Response To Plaintiff’s Notice Of Filing And Notice Of Non-Compliance, dated December 11, 2001.
  5. Plaintiff’s Statement Of Material Facts Which Preclude Summary Judgment In Favor Of Defendants, dated February 19, 2002.
  6. Plaintiff's Notice Of Filing Affidavit In Opposition To Defendants’ Motion Summary Judgment, February 19, 2002.
  7. Affidavit In Opposition To Defendants’ Motion Summary Judgment, February 19, 2002.
  8. Plaintiff's Reply To Defendants’ Response To Plaintiff's Motion To Compel Defendant’s Answer To Plaintiff’s Third Interrogatory For The Defendant Highlands County Board Of County Commissioners, dated February 23, 2002.
  9. Affidavit In Support Of Plaintiff’s Motion Summary Judgment, dated March 26, 2002.
  10. Appeal And Objections To Order Of APRIL 12, 2002 Denying Plaintiff’s Motion For Leave To Amend, dated April 16, 2002. Graham denied this appeal even though it is not docketed. (Doc. 89).
  11. Appeal And Objections To Order Of April 12, 2002 Denying Plaintiff's Motions To Strike (DE #7) AND (DE #11), dated April 16, 2002.

Haters and the Collateral Bar Doctrine

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The haters and defenders will come to Judge Graham's aid by invoking the "collateral bar" doctrine. "[A] party subject to a court order must abide by its terms or face criminal contempt. Even if the order is later declared improper or unconstitutional, it must be followed until vacated or modified. As a general rule, a party may not violate an order and raise the issue of its unconstitutionality collaterally as a defense in the criminal contempt proceeding. Rather, the appropriate method to challenge a court order is to petition to have the order vacated or amended." In re Providence Journal Co., 820 F.2d 1342, 1346 (1st Cir. 1986). The defenders of Judge Graham will find no solace in the collateral bar doctrine for multiple reasons. Firstly, and most importantly, the collateral bar doctrine was never invoked by the government in their persecution/prosecution or the trial court judge before or during the trial. In fact the matter was put before the court by Marcellus Mason, the Defendant, in a motion to dismiss, see (D.E. #4); however the government as represented by AUSA Robert Waters simply ignored this issue. Moreover, Judge K. Michael Moore waited from November 2002, until March 15, 2004, the day of the bench trial, to decide or rather moot the motion to dismiss without even mentioning the collateral bar or any other issue for that matter. See (D.E. #44)(“ Mason also filed Motions to Dismiss and for Declaratory Relief on November 27, 2002 (DE #4). Because they were filed before Mason was formally charged, those motions are denied as moot.”). Secondly, and just as important, the clearly void sua sponte issued pre-filing injunction can not form the basis of a contempt complaint. “A void judgment is from its inception a legal nullity.” Boch Oldsmobile, 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, 136 F.3d 1000 (5th Cir. 1998)(“[a] void judgement is one which, from its inception, was a complete nullity and without legal effect.”). A void order or an order issued violation of due process cannot form the basis of a criminal contempt complaint and conviction. An order issued in violation of due process is null. “Indeed, its [void order] validity may even be subject to attack in a proceeding for contempt, as the collateral bar rule that prevents attack on an erroneous judgment does not insulate void judgments.” Page v. Schweiker, 786 F.2d 150 (3rd Cir. 1986). “When an order is clearly invalid, the rationale for the collateral bar rule dissolves because ‘in that instance the court is acting so far in excess of its authority that it has no right to expect compliance and no interest is protected by requiring compliance.’" U.S. v. Mourad, 289 F.3d 174 (1st Cir., 2002). This case is controlled by In re Green, 369 U.S.689, 82 S. Ct. 1114 (1962) where the U.S. Supreme Court reversed a criminal contempt conviction that was based upon a restraining that was issued without notice and opportunity to be heard.


Long History of Refusing to Review the Sua Sponte Issued Pre-filing Injunction

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The Eleventh Circuit has refused to review the sua sponte issued pre-filing injunction no less than eight (8) times. The reasons for refusing to review the sua sponte issued pre-filing injunction is different each time. The following cases provided the Eleventh Circuit with the opportunity to review the sua sponte issued pre-filing injunction:

Case No. 01-13664-A, Direct Appeal, Oct. 16, 2002 is particularly offensive because the Eleventh Circuit struck Mason’s appellate brief because it argued against that the sua sponte issued pre-filing injunction that the Eleventh Circuit stated was “beyond the scope of appeal”. However, when the Eleventh Circuit affirmed Judge Graham in its decision it then used the same sua sponte issued pre-filing injunction to affirm Judge Graham. See Putrid Dishonesty:Beyond the Scope of Appeal. This appeal, Case No. 01-13664 has been referred to as the “appeal from hell”. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell. Lastly, and even more offensive and egregious, the Eleventh Circuit sat idly by while Mason was being railroaded in a kangaroo court for contempt based solely upon this clearly void sua sponte issued pre-filing injunction. See Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life. Clearly, a decision has been taken that Judge Graham’s career is more important than Mason’s life.

WAIVER OF COLLATERAL BAR DOCTRINE

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Any reliance upon the collateral bar applicability has been waived. The government has
never raised this issue despite having multiple opportunities. See (D.E. 36), “Government's Response To Defendant's Motions To Dismiss Information”; (D.E. #107), “Government's Response To Defendant's Motion To Vacate Criminal Contempt Conviction (D.E. # 106)”; (D.E. #137), “Government’s Response In Opposition Defendant’s MotionTo Vacate (DE 134)”. This Court improperly raised the collateral bar sua sponte for very time in response to a post conviction motion. See R&R, (D.E. #118, pgs. 5). The Court and the government had ample opportunity to assert the collateral bar during the pendency of the matter, but both made conscious choices not to. Secondly, the collateral bar can not and has not ever been applied where as here, the appellate court repeatedly refused to review the injunction in question for validity. "[T]he collateral bar rule presupposes that adequate and effective remedies exist for orderly review of the challenged ruling; in the absence of such an opportunity for review, the accused contemnor may challenge the validity of the disobeyed order on appeal from his criminal
contempt conviction and escape punishment if that order is deemed invalid."  In Re Novak, 932 F.2d 1397 ¶16 (11th Cir. 1991).  As documented above, the Eleventh Circuit declined to review the sua sponte issued pre-filing injunction on multiple occasions before the information was filed in November 2002. See Long History, above.

Supreme Court’s Emphasis on Due Process

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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

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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 challenge unlawful convictions and to seek redress for violations of their constitutional rights.“).

A Finding Of Bad Faith Requires Due Process

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The Sua Sponte Issued Pre-Filing Injunction Makes A Finding Of Bad Faith Inconsistent With Due Process. “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). “The court must afford the sanctioned party due process, both in determining that the requisite bad faith exists and in assessing fees. Due process requires that the attorney (or party) be given fair notice that his conduct may warrant sanctions and the reasons why… “ In Re Mroz, 65 F.3d 1567 (11th Cir. 1995); "Thomas v. Tenneco Packaging Co., 293 F.3d 1306 (11th Cir. 2002); Byrne v.Nezhat, 261 F.3d 1075 (11th Cir. 2001)(“A court should be cautious in exerting its inherent power and ‘must comply with the mandates of due process”); First Bank Of Marietta v. Hartford Underwriters Insurance Company, 2002 U.S. App. LEXIS 21117,*25;2002 FED App. 0356P (6th Cir. 2002); In Re Atlantic Pipe Corp., 304 F.3d 135, 143 (1st Cir. 2002)(“[A] district court's inherent powers are not infinite…the use of inherent powers must comport with procedural fairness.”) Lockary v. Kayfetz, 974 F.2d 1166,1170 (C.A.9 (Cal.), 1992); In re: Rimsat, 212 F.3d 1039 (7th Cir., 2000); In re Kujawa, 256 B.R. 598, 611-12 (Bankr.8th Cir., 2000).

Case Law On Pre-Filing Injunctions

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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).

Orders Issued Inconsistent With Due Process Are Void

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“A void judgment is from its inception a legal nullity.” Boch Oldsmobile, 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, 136 F.3d 1000 (5th Cir. 1998)(“[a] void judgement is one which, from its inception, was a complete nullity and without legal effect.”). 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)/a>; New York Life Ins. Co. v. Brown 84 F.3d 137, 143 (5th Cir. 1996)