JUDGE DONALD L. GRAHAM, US ATTORNEY R. ALEXANDER ACOSTSA, AUSA ROBERT WATERS,AUSA THEODORE M. COOPERSTEIN AND SEE NO PROBLEM WITH FRAMING AN INDIVIDUAL

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

Table Of Contents

PURPOSE

QUICK SYNOPSIS

IGNORING LEGALITY

PRETRIAL MOTION

POST-TRIAL MOTION

Information

Consequences

CRIMINAL PRETRIAL MOTIONS FILED

Case Law on Sua Sponte Issued Filing injunctions

Law on "Bad Faith" Finding

APPELLATE HISTORY: AN EXERCISE IN FUTILITY

Lying and Avoiding Review

Using In Forma Pauperis To Deny Review

 

 

PURPOSE:

Marcellus Mason simply seeks to have a sua sponte issued filing injunction issued without notice and opportunity to respond tested in the Courts for validity and to have that opinion published for public scrutiny. 

 

Are US Attorney R. Alexander Acosta, AUSA Theodore Cooperstein, and AUSA Robert Waters U.S. Judge Donald L. Graham's lapdogs?

 

 

QUICK SYNOPSIS

U.S. Dist. Judge Donald L. Graham, US Attorney R. Alexander Acosta, AUSA Theodore Cooperstein, and AUSA Robert Waters used a clearly void sua sponte issued pre-filing injunction to form the basis of a criminal contempt complaint. On September 20, 2001 [Civil Case No. 99-14027-CV-Graham, Mason v. Highlands County], Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason.  See Docket Entry Number 878, (D.E. # 878,Page 3 ) .  Page 3 of this document boldly asserts: "THIS CAUSE came before the Court sua sponte."  The law is quite clear and unequivocal in that a filing injunction requires notice and opportunity to be prior to its issuance.  See 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, below.   "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 it acted in a manner inconsistent with due process of law.”"  Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001).  Additionally, this sua sponte issued filing injunction made a so-called finding of "bad faith" that also requires due process. 

Bad Faith
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.
See Docket Entry Number 878, (D.E. # 878,Page 3 ).  See law on bad faith finding. 

It is black letter law and a bedrock legal principal that an order issued in violation of due process is void and a legal nullity.  See Definition of Void, below.  On December 3, 2002 [Case No. 02-14020-CR-Moore], AUSA Robert Waters initiated a contempt complaint by way of an information with this clearly void sua sponte issued pre-filing injunction of September 20, 2001.  See Information, below.   “A void judgment is from its inception a legal nullity.”  U.S. v. Boch Oldsmobile, 909 F.2d 657, 661 (1st Cir. 1990).  A criminal contempt conviction was obtained on based upon this sua sponte issued pre-filing injunction of September 20, 2001by way of a bench trial.  This criminal contempt conviction led to Marcellus Mason being jailed for 41 days and sentenced to 5 years of supervised probation.  See Probation.

The consequences of this sua sponte issued pre-filing injunction has been devastating and disastrous.  For an example, this sua sponte issued pre-filing injunction was used to award $200,000 against Marcellus Mason who was and is indigent.  See Consequences, below. 

 

 

 

 

IGNORING LEGALITY

Other than Marcellus Mason, no one has argued the legality or illegality of the sua sponte issued pre-filing injunction of September 20, 2001.

US Attorney R. Alexander Acosta, AUSA Theodore Cooperstein, and AUSA Robert Waters have had multiple opportunities to assert demonstrate that this sua sponte issued pre-filing injunction is not void, but have adamantly refused to do so.

The Eleventh Circuit has asserted every dishonest trick in the book to avoid passing on the legality of a sua sponte issued pre-filing injunction.  See Appellate Review.  This is truly remarkable and remarkable story of appellate dishonesty. 

Judge K. Michael Moore has carefully avoided discussing the legality of a sua sponte issued pre-filing injunction. 

 

PRETRIAL MOTION

 

On November 25, 2002, A Defendant’s Motion To Dismiss, Defendant’s Motion For Declaratory Relief, Defendant’s Motion For A Due Process Hearing, And Defendant’s Motion For Publication was submitted on November 25, 2002.  (DE-4).   The Government never filed a response.   Among a myriad of other matters, this motion specifically argues the following:

  • Sua sponte issued pre-filing injunction of September 20, 2001 is void because it was issued without notice and opportunity and notice to respond.
  • Sua sponte issued pre-filing injunction of September 20, 2001 is void because it was makes a so-called finding of "bad faith" without notice and opportunity and notice to respond.

This motion languished and was never addressed by the Court. However a Second Motion to Dismiss was partially addressed by the Court. See (DE #44).  Judge Moore simply stated:

Mason's motions for due process hearing and publication are meatless . The due proces s claim concerns Judge Graham's September 20, 2001 Omnibus Order enjoining Mason from filing pleadings or new lawsuits without first obtaining court permission . The proper venue for contesting the constitutionality of that order is the United States Court of Appeals, not this Court. Indeed, the Eleventh Circuit dismissed Mason's appeal of the September 20, 2001 Omnibus Order. (Case no . 99-14027-CIV, DE #922 .)

Judge Moore knows full well that the Eleventh Circuit, US Court simply ignored this issue on direct appeal [Case No. 01-13664] and in a mandamus petition [Case No. 01-15754]  .  See Appellate History, below.  As a matter of fact, in the direct appeal, [Case No. 01-13664] , the Eleventh Circuit struck Mason's brief for arguing against the sua sponte issued pre-filing injunction of September 20, 2001 and then turned around and used it to affirm Judge Graham.  There has never been any appellate review of the sua sponte issued pre-filing injunction.

 

 

 

POST-TRIAL MOTION

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

A Motion was presented in the Southern District of Florida To Vacate This Sua Sponte Issued pre-filing Injunction Under Rule 60(b)(4) Fed.R.Civ.P.,  on June 8, 2007. See Motion To Vacate, 23 pages.  This motion, among other things, seeks to have the sua sponte issued pre-fling injunction declared void pursuant to Rule 60(b)(4), Fed.R.Civ.P. 

The sua sponte issued pre-filing injunction of September 20, 2001 is invalid due to the following:

  • An order or judgment issued in violation of due process is void and a legal nullity.  Pgs. 6-7.
  • The district court did not have jurisdiction of the matter on September 20, 2001 because an appeal had been filed since June 25, 2001.  pg. 7, 8.
  • The sua sponte issued pre-filing injunction was issued without notice and opportunity to be heard, or due process.  Pgs. 8-10.
  • The sua sponte issued pre-filing injunction makes a finding of “bad faith” inconsistent with due process.  Pgs. 10-11.

The Court, having declared a sua sponte issued pre-filing injunction void, would no longer have a legal basis for a violation of void order and criminal contempt complaint.  The Highlands County Board of County Commissioners, the original Defendant in the civil case [99-14027-CV-GRAHAM] in which the sua sponte issued pre-filing injunction was rendered, refused to file a brief. The Government, who filed the information in the criminal case [02-14020-CR-Moore], replied on August 2, 2007. The Government's Response as filed by AUSA Robert Waters does not cite the record, or cite one legal authority for its apparent position that a sua sponte issued pre-filing injunction is not void and may form the basis of a criminal contempt complaint.  See The  Government's Response (5 pages). 

On or about 10/19/07, Marcellus Mason was jailed until 11/29/2007 for an alleged probation violation due to a criminal contempt conviction based upon this sua sponte issued pre-filing injunction. This matter is online under the court's electronic filing system under Case No. 02-14020, Judge K. Michael Moore.  On October 16, 2007, Magistrate John J. O'Sullivan rendered a Report and Recommendation, "R&R", and apparently ruled that a clearly void order may become valid by a later filed contempt charge.  Stated alternatively, Magistrate John J. O'Sullivan has explicitly ruled that a void order maybe "bootstrapped" or become valid by a later filed criminal contempt complaint.  On 12/06/2007, the Report and Recommendation of the Magistrate was returned undeliverable to the Court.   See Docket.  This "R&R" was rendered while Marcellus Mason was in jail.  The R&R prevaricates with respect to several issues, but expressly states that a clearly void sua sponte issued pre-filing injunction may form the basis of a criminal contempt complaint and conviction. 

On December 14, 2007, Mason filed a motion with the Court notifying it that he did not receive the R&R because he was in jail and the the R&R was returned to sender by the USPS because the R&R was addressed improperly. See Docket Entry No. 132. Upon  reading the R&R after getting out of jail, Marcellus Mason amended his original motion to vacate the conviction and only sought relief with respect to a declaration that a sua sponte pre-filing injunction is void.    See  Docket Entry No. 134.  On December 21,2007, Marcellus Mason filed objections to the R&R.  See Docket Entry No. 133.  On 01/04/2008, Judge K.M. Moore ordered the government to file a response.  See Docket Entry No. 136.  On 01/07/2008, AUSA Theodore Cooperstein, filed a response as ordered by the Court, but declined to inform the court as to how a clearly void sua sponte issued pre-filing injunction may form the basis of a criminal contempt complaint.   See Docket Entry No. 137.  On 03/04/2008, Judge K.M. Moore denied the Motion.  See Docket Entry No. 141.  Specifically, Judge K.M. Moore did not address the underlying motion challenging the validity of the sua sponte issued pre-filing injunction instead he "split the baby" by denying the motion to file a response to the unreceived Report and Recommendation and ordering Marcellus Mason off of supervised release probation. 

 

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

 

INFORMATION

Actual Document in PDF format

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/

99-14042-CIV-GRAHAM/LYNCH/

99-14257-CIV-GRAHAM/LYNCH/

99-14314-CIV-GRAHAM/LYNCH/

00-14116-CIV-GRAHAM/LYNCH ;

00-14201-CIV-GRAHAM/LYNCH/

00-14202-CIV-GRAHAM/LYNCH ;

01-14 074 -CIV-GRAHAM/LYNCH/

01-14078-CIV-GRAHAM/LYNCH/

01-14230-CIV-GRAHAM/LYNCH ;

01-14240-CIV-GRAHAM/LYNCH/

And

01-14310-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 September 20, 2001, in violation of Title 18, United States Code, Section 401(3)

 

Consequences

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

 

CRIMINAL PRETRIAL MOTIONS FILED

A bench trial was scheduled for March 15, 2004.  However, on March 15, 2004, the day of trial several important and dispositive motions were outstanding or pending and NOT resolved.  On the day of the trial, Judge Moore only gave a written opinion the motions to dismiss which was distributed to me on the trial date, March 15, 2004.  (DE #44).  Several other important motions were only addressed and denied orally, the day of trial, March 15, 2004.  The following motions were pending and unresolved the day of the trial:
  • January 22, 2004.  A Motion To Depose Judge Graham was submitted.  The Government did not respond to this motion and Judge Moore did not rule on this motion until just minutes before the bench trial on March 15, 2004.  Moreover, Judge Moore refused to grant a continuance, and said that I should file an appeal.  Additionally,  Judge Moore asserted that I should have known that this motion would never have been granted.  The Motion to Depose was filed on January 22, 2004 in order to preclude Judge Graham from asserting that he was too busy to attend the contempt trial that he initiated.  As a result of Judge Moore's refusal to rule on this motion until the day of the bench trial, I was denied my sixth amendment right to confront Judge Graham.  Judge Moore had from  January 22, 2004 until March 15, 2004 to rule on this motion, but he declined to do so. 

  • November 25, 2002.  Defendant’s Motion To Dismiss, Defendant’s Motion For Declaratory Relief, Defendant’s Motion For A Due Process Hearing, And Defendant’s Motion For Publication was submitted on November 25, 2002.  (DE-4).   The Government never filed a response.   This motion languished and was not ruled upon until the day of the trial, March 15, 2004.  See (DE #44).  In fact the case was placed in suspense
  • March 6, 2004.  DEFENDANT’S SECOND MOTION TO DISMISS was submitted on March 6, 2004.  See Second Motion To Dismiss.  This motion is similar to motion to dismiss above, in that argues most of the same issues as  March 6, 2004, however it somewhat different given the elapsed time and the impact on the Speedy Trial statute and the sixth amendment right to a speedy trial.  This motion  was not ruled upon until the day of the trial, March 15, 2004.  See (Second Motion to Dismiss).  Additionally, it does not discuss my rights under the sixth amendment to a speedy trial, this issue is simply ignored, among other things.  The government only opposed the speedy trial statute issue only, all other issues raised on both motions to dismiss were unaddressed.  See Government's Response.  

    • BENCH TRIAL

    A bench trial was held on March 15, 2004.  The Government called no witnesses and I was not allowed to call Judge Graham as a witness.  I was also denied a continuance even though dispositive motions and other important motions were decided the day of trial March 15, 2004 had no chance. 
  • March 15, 2004.  The day the bench trial begins.  The court rules on some of the pending motions.  The court rules on the two motions dismiss.  The Court distributes its written opinion on the motions to dismiss.  See (DE #44).

 

APPELLATE HISTORY: AN EXERCISE IN FUTILITY

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

Lying and Avoiding Review

99-14027

01-13664-A

Mar. 6, 2002

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

99-14027

01-13664-A

Apr. 23, 2002

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

99-14027

01-13664-A

Oct. 16, 2002

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

99-14027

01-13664-A

Jan. 31, 2003

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

99-14027

01-15754-A

Dec. 5, 2001

 

Court refuses to pass on the validity of the sua sponte issued injunction of September 20, 2001 stating only:

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

99-14027

01-15754-A

Jan. 25, 2002

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

99-14027

02-14646

Oct. 7, 2002

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

TABLE 1


Using In Forma Pauperis To Deny Review

The Eleventh Circuit has used the in forma pauperis statutes to routinely deny review of the sua sponte issued pre-filing injunction of September 20, 2001.   The Eleventh Circuit has claimed that each and every IFP petition filed by Mason was frivolous for one reason or another and never the same reason.  The U.S. Supreme Court has stated that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.”  Denton v. Hernandez, 504 U.S. 25 (1992).  It is irrational to deny the reality of the sua sponte issued injunction of September 20, 2001.  However, The Eleventh Circuit has managed to do just that, consider the following:

99-14027

01-13664-AA

Dec. 12, 2001

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

99-14027

01-13664-AA

Feb. 7, 2002

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

99-14027

02-10868

Aug. 23, 2002

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

01-16135-D

Nov. 19, 2001

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

99-14027

02-11476-A,

May 1, 2002 pgs. 1, 2 ,3

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

99-14027

02-11476-A,

Jun. 13, 2002

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

01-14230

02-10873-G

June 27, 2002

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

01-14230

02-10873-G

Aug. 29, 2002

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

01-14310-CIV-GRAHAM

02-13314-I.

Nov. 6, 2002

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

04-11894-B

May 20, 2004

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

05-10623-I

Mar. 16, 2005

“Mason appealed the dismissal of his case as well as the district court’s order of September 20, 2001…”
TABLE 2

COURTS HAVE UNIVERSALLY REJECTED SUA SPONTE PRE-FILING INJUNCTIONS

A void order has no force or effect and is a nullity. See Gotshall v. Taylor, 196 So. 2d 479, 481 (Fla. 4th DCA 1967).;  GOOLSBY v. STATE, Case No. 5D04-3219, (Fla. t5th DCA 2005) .

 

 In a very long line of cases, U.S. Circuit Courts of Appeal and other jurisdictions have consistently, without variation, rejected sua sponte issued filing injunctions or pre-filing injunctions issued without notice and opportunity to respond.     In Weaver v. Sch. Bd., 2006 U.S. App. LEXIS 8128 (unpublished) (11th Cir. 2006), the Court held that a litigant was entitled to “notice and an opportunity to be heard” before a restriction was imposed on the litigant’s ability to challenge an injunction.  U.S. v. Powerstein, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006)(litigant entitled to notice and an opportunity to be heard before the court imposed the injunctive order).   See 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); Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997)(vacated because the litigant “was not ;warned or otherwise given notice that filing restrictions were contemplated”); MLE Realty Assoc. v. Handler, 192 F.3d 259,262 (2nd Cir., 1999)(vacating a sua sponte issued injunction because notice was not given).  Lau v. Meddaugh, 229 F.3d 121, 123 (2nd Cir., 2000)(vacating a sua sponte issued injunction);      Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (“district court may not impose a filing injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to be heard.”). Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); Williams v. Cambridge Integrated Services Group, 2005 U.S. App. LEXIS 18624,*7;148 Fed. Appx. 87 (3rd Cir. 2005)( reversing and holding that: “Sufficient notice and opportunity to be heard are essential prerequisites to the entry of a pre-filing injunction.”); Gonzalez v. Usher Feiner, 2005 U.S. App. LEXIS 8370,*12;131 Fed. Appx. 373 (3rd Cir. 2003)(reversing a sua sponte issued injunction and questioning whether a pre-filing injunction is warranted based on Gonzalez's history of filing six frivolous cases in ten years.).  “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, 2006U.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); De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir.), cert. denied, 498 U.S. 1001, 111 S.Ct. 562, 112 L.Ed.2d 569 (1990)(reversed for failure to notice of pre-fling injunction); 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, 8, 834 F.2d 81, 83 (3d Cir. 1987).

 

ORDERS ISSUED IN VIOLATION OF DUE PROCESS ARE VOID

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. (emphasis added)” E.g.,Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001;  U.S. v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 1990); Beller & Keller v. Tyler, 120 F.3d 21, 23 (2nd Cir. 1997; Union Switch & Signal v. Local 610, 900 F.2d 608, 612 n.1 (3rd Cir. 1990); Eberhardt v. Integrated Design & Const., Inc. 167 F.3d 861, 867 (4th Cir. 1999); New York Life Ins. Co. v. Brown, 84 F.3d 137, 143 (5th Cir. 1996); Simer v. Rios, 661 F.2d 655, 663-4 (C.A.7 (Ill.), 1981)(“a judgment is void for purposes of Rule 60(b)(4) is if the judgment was entered in violation of due process… Because this notice never was delivered the judgment must be vacated as void.”). “'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).

A void judgment is from its inception a legal nullity.  U.S. v. Boch Oldsmobile 909 F.2d 657, 661 (1st Cir. 1990).  See 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.”); Lops v. Lops, 140 F.3d 927, 941 n. 19(11th Cir. 1998) (“something that is null has no legal or binding force.”); Carter, at136 F.3d 1006 (“[a] void judgment is one which, from its inception, was a complete nullity and without legal effect.”). 

 

FINDING OF BAD FAITH

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

The United States Supreme Court has stated:

 

“A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.” (emphasis added)  Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991).  

“Courts must afford a sanctioned party due process, both in determining the bad faith required to invoke the court's inherent power to impose sanctions and in assessing fees.“  In re Sunshine Jr. Stores, Inc., 2006 U.S. App. LEXIS 17990,*;456 F.3d 1291; (11th Cir. 7/18/2006) (11th Cir., 2006); Campos v. City Of Naples, 2006 U.S. App. LEXIS 26697,*;202 Fed. Appx. 381 (11th Cir. 2006)(citing Oakes v. Horizon Financial, S.A., 259 F.3d 1315, 1320 n.5 (11th Cir. 2001)) (notice and opportunity to be heard required as part of sanctions process). Even the award of sanctions under the court's inherent power must "comply with the mandates of due process." (quoting Chambers v. NASCO, 501 U.S. 32, 49-50, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991)).


 



 

PROBATION

 

 

 

See Actual Document.

PROB 7A

(Rev.9/00)                                                                           Conditions of Probation and Supervised Release

UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF FLORIDA

To      Marcellus M. Mason, Jr.                                                                                        Docket No. 02-14020-CR-MOORE

SD/FL PACTS No. 79962

Address 218 Florida Avenue Sebring

, FL 33870

Under the terms of this sentence, the defendant has been placed on probation  by the Honorable  K. Michael

Moore  , United States District Judge for the Southern District of Florida. The defendant's term of supervision is for a period of five (5) years  , commencing June 29, 2004

While on probation, the defendant shall not commit another federal, state, or local crime. The defendant shall not illegally possess a controlled substance.

If the judgment imposed a fine or a restitution obligation, it shall be a condition of probation/supervised release that the defendant pay any such fine or restitution that remains unpaid at the commencement of the term of supervision in accordance with any schedule of payments set forth in the Criminal Monetary Penalties sheet of the judgment. In any case, the defendant should cooperate with the probation officer in meeting any financial obligations.

The defendant shall report in person to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons (supervised release cases only).

[X]      The defendant shall not possess a firearm, destructive device, or any other dangerous weapon.

For offenses committed on or after September 13, 1994:

The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment or placement on probation and at least two periodic drug tests thereafter.

The above drug testing condition is suspended based on the court's determination that the defendant poses a low risk of future substance abuse.

It is the order of the Court that you shall comply with the following conditions:

(1)                  The defendant shall not leave the judicial district without the permission of the court or

probation officer;

(2)                  The defendant shall report to the probation officer and shall submit a truthful and complete

written report within the first five days of each month;

(3)         The defendant shall answer truthfully all inquiries by the probation officer and follow the

instructions of the probation officer;

(4)                  The defendant shall support his or her dependents and meet other family responsibilities;

(5)                  The defendant shall work regularly at a lawful occupation unless excused by the probation

officer for schooling, training, or other acceptable reasons;

(6)                  The defendant shall notify the probation officer ten days prior to any change in residence or

employment;

(7)                  The defendant shall refrain from excessive use of alcohol and shall not purchase, possess,

use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substance, except as prescribed by a physician;

(8)                  The defendant shall not frequent places where controlled substances are illegally sold, used,

distributed, or administered;

(9)                  The defendant shall not associate with any persons engaged in criminal activity and shall not

associate with any person convicted of a felony, unless granted permission to do so by the probation officer;

(10)              The defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer;

(11)              The defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;

(12)              The defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court;

(13)              As directed by the probation officer, the defendant shall notify third parties of risks that may

be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.

The special conditions ordered by the Court are as follows:

The defendant shall participate in an approved inpatient/outpatient mental health treatment program, as directed by the U.S. Probation Office. The defendant will contribute to the costs of services rendered (co-payment) in an amount determined by the U.S. Probation Officer, based on ability to pay, or availability of third party payment.

The defendant shall comply with the Omnibus Order Enjoining Plaintiff From  Filing Any Pleadings In Or Additional Lawsuits Relating Thereto Without Court Permission entered by Judge Donald L. Graham on September 20,2001 in cases 99- 14027-CIV-GRAHAM, 99-14042-CIV-GRAHAM, 99-14257-C1V-GRAHAM, 99- 14314-CIV-GRAHAM, 00-14116-CIV-GRAHAM, 00-14201-CIV-GRAHAM , 00- 14202-CIV-GRAHAM, 00-14240-CIV-GRAHAM, 01-14074-CIV-GRAHAM, 01- 14078-CIV-GRAHAM, and 01-14230-CIV-GRAHAM.

The defendant shall have no personal, mail, telephone or computer contact, either directly or indirectly, with any of the litigants or participants of the previous civil cases that were the object of the Court's Omnibus Order dated. September 20, 2001.

The defendant shall not possess or use a computer that contains an internal modem and/or possess an external modem, and shall not possess or use a computer with access to any on-line computer service at any location without the prior written approval of the Court. This includes any Internet service provider, bulletin board system, or any other public or private computer network. In addition, the defendant shall not possess or use any data encryption technique or program. The defendant shall consent to the U.S. Probation Officer conducting periodic unannounced examinations of his computer to ensure compliance with this condition. This does not preclude the defendant from using a computer for e-mail purposes to contact only family members.

Upon a finding of a violation of probation or supervised release, I understand that the court may (I) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision.

These conditions have been read to me. I fully understand the conditions, and have been provided a copy of them.