JUDGE DONALD L. GRAHAM: "I Can Deny In Forma Pauperis for Any Reason I Damn Well Please"  

 

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Justice Turned On Its Head

 

Judge Donald L. Graham is Above the Law!!!

 


In yet another landmark and "DO NOT PUBLISH" Opinion,  the Eleventh Circuit [Judges Gerald Bard Tjoflat, Judge Susan Black and Judge Ed Carnes,] and Judge Donald L. Graham have have held that a District Judge [Graham] need not provide a reason for denying an indigent in forma pauperis status so long as the District Judge orders the indigent to pay the filing fee, U. S. Supreme Court and Congress be damned. 

The Eleventh Circuit, like Judge Graham, has a history of arbitrary and unlawful denials of in forma pauperis applications, thereby thwarting access to the Courts.  See Killing Appeals page. 

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Judge Donald L. Graham is the "Teflon Don"

Judge Graham has defied the United States Supreme Court or virtually said godamn the U.S Supreme Court on 18 separate occasions by denying in forma pauperis motions without providing an explanation.  Judge Graham's colleague, Judge Daniel T. K. Hurley, was reversed on appeal for denying an IFP, in forma pauperis motion without providing an explanation for denial. See Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir., 2004). A post on the blog at mcneilmason.wordpress.com entitled "Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge" details this incredible story.

ARBITRARY  IFP DENIALS BY JUDGE DONALD L. GRAHAM

 

Case No.

Docket Entry #

URL

1

00-14201

9

http://mmason.freeshell.org/00-14201/de9.pdf

2

00-14201

12

http://mmason.freeshell.org/00-14201/de12.pdf

3

00-14201

13

http://mmason.freeshell.org/00-14201/de13.pdf

4

00-14201

20

http://mmason.freeshell.org/00-14201/de20.pdf

5

00-14201

22

http://mmason.freeshell.org/00-14201/de22.pdf

6

99-14027

877[3]

http://www.geocities.com/mcneilmason/secret/99-14027/de877.pdf

7

99-14027

906[4]

http://mmason.freeshell.org/DE-906/de906.pdf

8

00-14202

9

http://mmason.freeshell.org/00-14202/DE-9/de9.pdf

9

00-14202

10

http://mmason.freeshell.org/00-14202/DE-10/de10.pdf

10

00-14202

12

http://mmason.freeshell.org/00-14202/DE-12/de12.pdf

11

00-14202

19

http://mmason.freeshell.org/00-14202/DE-19/de19.pdf

12

00-14202

22

http://mmason.freeshell.org/00-14202/DE-22/de22.pdf

13

00-14116

10

http://geocities.com/mcneilmason/secret/00-14116/de10.tif

14

00-14240

43[5]

http://geocities.com/mcneilmason/secret/00-14240/de43.pdf

15

01-14230

57[6]

http://geocities.com/mcneilmason/secret/01-14230/de57.pdf

16

01-14310

101

http://geocities.com/mcneilmason/secret/01-14310/de101.pdf

17

01-14078

8[7]

http://geocities.com/mcneilmason/secret/01-14078/de8.pdf

18

99-14027

939[8]

http://mmason.freeshell.org/DE-939/de939.pdf

 

Definition of In Forma Pauperis

In forma pauperis (IFP) is a legal term derived from the Latin phrase in the character or manner of a pauper.[1] In the United States, the IFP designation is given by both state and federal courts to someone who is without the funds to pursue the normal costs of a lawsuit or a criminal defense.[2] The status is usually granted by a judge without a hearing, and entitles the person to a waiver of normal costs, and sometimes in criminal cases the appointment of counsel.  URL: http://en.wikipedia.org/wiki/In_forma_pauperis


 

Legal Standard on In Forma Pauperis

28 U.S.C. § 1915(e) states: (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that— (A) the allegation of poverty is untrue; or (B) the action or appeal— (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

The United States Supreme Court has stated:" The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts.  Toward this end, 1915(a) allows a litigant to commence a civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit...1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious."Neitzke v. Williams, 490 U.S. 319, 324 (1989)[a] court may dismiss a claim as factually frivolous only if the facts alleged are "clearly baseless," [internal citations omitted] , a category encompassing allegations that are "fanciful," "fantastic, "and "delusional,. [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. An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff's allegations unlikely.  Some improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be "strange, but true; for truth is always strange, Stranger than fiction.  Denton v. Hernandez, 504 U.S. 25 (1992).

 

 

According to the Eleventh Circuit and Judge Ed Carnes 28 U .S .C . § 1915(a):. 

That statute provides that any court of the United States may authorize the commencement of a proceeding without prepayment of fees by a person who submits a affidavit that includes a statement of assets that the person possesses and that the person is unable to pay such fees . The Court, however, may dismiss the case at any time if it determines that the allegation of poverty is untrue or the action or appeal is frivolous. See § 1915(e)(2)(A) & (B)
See Opinion, Case No. 01-11305, dtd. April 26, 2001. 

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FINANCIAL STATUS

Applicants Financial Status During the relevant time period, Marcellus Mason was not working and had ZERO income, however in all his numerous applications Mason included his wife's income at Taco Bell which varied at between $520.00 /mo. and $618 /mo. See IFP Motion,  Mason  was able to live thanks to his now deceased mother who provided him with unbelievable financial and moral support.  If the indigent can't pay the filing fee, then the right to appeal is dead.  


NARRATIVE OF JUDGE GRAHAM'S UNLAWFUL IFP DENIALS

Judge Graham has shown contempt for Congress and the U.S. Supreme Court by arbitrarily denying in forma pauperis applications/motions. It appears that Judge Graham has the power to create, by apparent fiat, his own rules and laws when he sees fit with respect to in forma pauperis applications. Quoting Herrick v. Collins, 914 F.2d 228 (11th Cir. 1990), a case cited by Judge Graham to Mason on least two occasions, see 00-14202,(DE #10, dtd. 11-2-2000); 00-14201, (DE #10, dtd. 11-21-2000), 28 U.S.C. § 1915 (1988) states in pertinent part:

(d) The court may . . . dismiss the case if . . .  satisfied that the action is frivolous or malicious.

Consequently, it is clear that Judge Graham’s knows the rules with respect to granting in forma pauperis. "The federal in forma pauperis 28 U.S.C. § 1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit. The statute protects against abuses of this privilege by allowing a district court to dismiss the case "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." Denton at 504 U.S., 27. According to rule of law, an in forma pauperis petition/motion may only be denied if allegation of poverty is untrue or if the action is frivolous. However, Judge Graham has shown contempt and disdain for the Congress and the U.S. Supreme Court by ignoring black letter law. Consider the following for examples, and this list is not collectively exhausted:

THIS CAUSE came before the Court upon Plaintiff’s Motion to proceed in forma pauperis (D.E. #2). UPON CONSIDERATION of the motion and the pertinent portions of the record, it is ORDERED AND ADJUDGED that Plaintiff’s Motion be, and the same is hereby, DENIED.

(D.E. 9, Case No. 00-14201-CIV-GRAHAM/LYNCH)

THIS CAUSE came before the Court upon Plaintiff’s Motion to proceed in forma pauperis (D.E. #2). UPON CONSIDERATION of the motion and the pertinent portions of the record, it is ORDERED AND ADJUDGED that Plaintiff’s Motion be, and the same is hereby, DENIED.

 

(D.E. 9, Case No. 00-14202-CIV-GRAHAM/LYNCH)

THIS CAUSE came before the court upon Defendant’s Motion to Proceed on Appeal In forma pauperis (D.E. # 41) and Defendant’s Motion for Clarification on Defendant’ s Motion to Proceed on Appeal In forma pauperis. THE COURT has reviewed Defendant’s Motion, the pertinent portions of the record and is otherwise fully advised in the premises. Defendant Marcellus M. Mason Jr. has several cases pending in the Court in which his various motions to proceed in forma pauperis have repeatedly been denied. As Defendant is well aware, the Court has already determined that he does qualify to proceed without the payment of fees. Accordingly, it is, ORDERED AND ADJUDGED that Defendant’s Motion to Proceed On Appeal In forma pauperis is DENIED.

(D.E. 43, Case No. 00-14240-CIV-GRAHAM/LYNCH)

THIS CAUSE having come on to be heard upon the aforementioned Motion, and this Court having reviewed the Motion, and noting that on January 5, 2001, this Court issued an order in Case No . 00-1420 1 and Case No . 00-14202 denying Plaintiff's motions to proceed in forma pauperis on appeal, and further noting that this Court has compared Plaintiff's affidavit attached to the instant motion wit h his affidavits previously filed in Case Nos . 00-14201 and 00-14202 and has found no change in Plaintiff's financial condition other than an installment payment to Royal's Department Store does no t appear in the most recent affidavit, and being otherwise advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff's Motion to Proceed in forma pauperis DENIED .

(D.E. 630, Case No. 99-14027-CIV-GRAHAM/LYNCH)

THIS CAUSE having come on to be heard upon an Order of Reference from the Honorable Donald L . Graham, dated September 10 ,2001, and this Court having reviewed the aforementioned Motions and the pertinent portions of the record, and noting that in other actions filed by Plaintiff, Judge Graham has denied Plaintiff' s motions to proceed in forma pauperis (Case Nos . 00-14116, 00-14201 , 00-14202, 00-14240), and further noting that this Court has compared Plaintiff's previously filed IFP motions and accompanying affidavits with the instant motion and affidavit and has found no relevant difference, and being otherwise advised in the premises , it is hereby ORDERED AND ADJUDGED that Plaintiff's Motions to Proceed in Forma Pauperis are DENIED .

(D.E. 877, Case No. 99-14027-CIV-GRAHAM/LYNCH) (This order denied three motions to proceed IFP, (DE #796, #799,& #811)

THIS CAUSE came before the Court upon Plaintiff's Motion for Permission to Appeal in forma pauperis and Affidavit (D.E. #899). THE COURT having considered the motion, the pertinent portions of the record and being otherwise fully advised in the premises, it is, ORDERED AND ADJUDGED that Plaintiff's Motion is DENIED.

(D.E. 906, Case No. 99-14027-CIV-GRAHAM/LYNCH)

THE COURT having reviewed the issues at hand and being fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff's Motion for Leave to Appeal In forma pauperis is Denied. On June 20, 2001, in view of Plaintiff's repeated refusal to comply with the Court's rules and orders, the Court dismissed Plaintiff's case with prejudice. On April 17, 2003, the United States Court of Appeals for the Eleventh Circuit denied Plaintiff's appeal and affirmed this Court's Order dated June 20, 2001.

(D.E. 939, Case No. 99-14027-CIV-GRAHAM/LYNCH)

Plaintiff in this case, like the plaintiff in Free, has filed numerous cases, each against the same or similar defendants and each relating to similar issues. The Court has already made a determination on Plaintiff's substantive claims, however, Plaintiff is insistent continuing to litigate his cause. This is an abuse of process which the Court refuses to subsidize. Accordingly, it is ORDERED AND ADJUDGED that Plaintiff's Motion to Proceed In forma pauperis is DENIED.

(D.E. 8, Case No. 99-14078-CIV-GRAHAM/LYNCH).

Judge Graham has attempted to make his own statutes with respect to denying in forma pauperis motions.

"The privilege of proceeding in forma pauperis is a matter within the discretion of the trial court. . " Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1663). In ruling on a motion to proceed in forma pauperis, the Court may look to whether the Plaintiff has abused the judicial process through the current and previous filings. See Free v. United States, 879 F.2d 1535, 1536 (7th Cit. 1989).

(D.E. 8, Case No. 99-14078-CIV-GRAHAM/LYNCH).

 

Judge Graham’s legal standard for denying in forma pauperis is half-true, consequently misleading. Federal Judges do not have unfettered discretion to deny in forma pauperis status as Judge Graham suggests. “While a trial court has broad discretion in denying an application to proceed in forma pauperis under 28 U.S.C.A. § 1915, it must not act arbitrarily and it may not deny the application on erroneous grounds…” Pace v. Evans, 709 F.2d 1428 (11th Cir. 1983). Judge Graham fails to identify any claims that are frivolous, he simply, in a mere conclusory fashion, speculates about Mason’s motive. Some of Judge Graham’s reasoning would appear to be because I denied you in the past I can keep denying because I think you are abusing the system. “[I]n forma pauperis status should be evaluated on a case by case basis. Cofield v. Alabama Public Service Commission, 936 F.2d 512,518-519 (11th Cir.1991). Cofield explicitly rejects any prospective denials of in forma pauperis status. “[A] court may dismiss a claim as factually frivolous only if the facts alleged are "clearly baseless,… a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible…An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff's allegations unlikely…” Denton at 504 U.S. 32.

 


BACKGROUND AND APPEAL

Dist. Ct. Case No. 00-14201-CIV-Graham
Eleventh Circuit, Case No. 01-16512

This was an employment discrimination lawsuit, among other things.  Mason applied for a job with the Highlands County Board of County Commissioners as a Budget Technician and was denied an interview and the job.  Mason filed a complaint with the EEOC, who issued a Notice of Right to Sue Letter, #150 AO 1181, on November 12, 1999.  Judge Graham denied in forma pauperis status in Dist. Ct. Case No. 00-14201-CIV-Graham.  Judge Graham denied IFP twice in the same case, both are documented below. Mason's in forma pauperis states the following:

"that in support my request to proceed without prepayment of fees or costs under 28 USC 1915 I declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief sought in the complaint/petition/motion."

See Docket Entry No. 2

This denial was appealed to the Eleventh Circuit, Case No. 01-16512. Judge Graham eschewed the both the statute (Congress) and the United States Supreme Court and refused to find or support that the legal requirement that either Mason's allegation of poverty was untrue or that the lawsuit was frivolous. Quoting Judge Graham directly, and its entirety, Judge's Graham's order denying in forma pauperis states:

On July 3, 2000, Plaintiff filed his Complaint and a Motion to Proceed In Forma Pauperis ("IFP Motion").1  Prior to the Court ruling on Plaintiff's IFP Motion, the Clerk of the Court issued Plaintiff a Summons in this matter, without requiring Plaintiff to pay the requisite filing fee. The summons was then served on Defendant. Defendant now moves to quash summons arguing that the summons should have never been issued because Plaintiff failed to to file in forma pauperis. As a result, the summons is defective and should be quashed.  Therefore, it is ORDERED AND ADJUDGED that Defendant's Motion to Quash summons is hereby GRANTED. It is further, ORDERED AND ADJUDGED that Plaintiff is required to pay the requisite filing fee within ten (10) days from the date of this Order or his Complaint will be dismissed. If Plaintiff pays the requisite fees, Plaintiff will then need to perfect service on Defendant in accordance with the Federal Rules of Civil Procedure.
                              
1Concurrent with the issuance of this order, the Court is issuing an order denying Plaintiff's Motion to Proceed In Forma Pauperis.
  see order [pdf] (D.E. #10)






Judge Graham's Order and Reason for Denying IFP Judge Graham's entire reason for denying in forma pauperis is the following:

THIS CAUSE came before the Court upon Plaintiff's Motion to Proceed in forma pauperis (D.E. # 2).UPON CONSIDERATION of the motion and the pertinent portions of the record, it is ORDERED AND ADJUDGED that Plaintiff's Motion be, and the same is hereby, DENIED.

   see [pdf] (D.E. #9).



After being denied IFP to file the lawsuit, Mason then filed a motion to proceed on appeal in forma pauperis to the Eleventh Circuit, U.S. Court of Appeal, however Judge Graham's Magistrate Judge, Frank Lynch Jr., denied this application without stating a reason as well.   See Order (DE #20).  Mason then appealed this denial to Judge Donald L. Graham, who then denied, without stating a reason, Mason's motion to proceed on appeal IFP.  See Order (DE #22)

APPEAL OF IFP DENIAL


CASE NO. 01-16512   

After all the denials by Judge Graham and his Magistrate, Mason then filed an application to proceed on appeal IFP with the Eleventh Circuit.   The Eleventh Circuit granted the IFP application.   Order Granting IFP.  Appeals briefs by the Appellee and Appellant were filed.  Initial Brief, Answer Brief, Reply Brief.   In Mason's brief, he made the simple factual and legal argument that Judge Graham had acted arbitrarily in denying my IFP motions by simply not providing any explanation at all.  Even the Defendant/Appellees Counsel did not know the reason for Judge Graham's denial of IFP.  "The District Court apparently determined that Mason did not qualify or  warrant IFP status based upon Mason's own affidavits. "
See  Appellees' Brief,  pg. 10.

LEGAL BRIEFS ONLINE
Appellant's Initial Brief
Appellees' Brief
Appellant's Reply Brief

 

In Martinez, v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir. 2004), the Eleventh Circuit vacated and remanded Judge Daniel T. K. Hurley's denial of an IFP application for failing to state a reason for the denial.  However, Judge Donald L. Graham in the same Court, Southern District of Florida, did the exact thing as Judge Hurley, but Judge Graham was affirmed.  This fact can be verified in five minutes by reading mmason.freeshell.org/martinez.htm . Incidentally,  Judge Graham, as documented above, has a history of denying in forma pauperis petitions without providing any explanation.  



ELEVENTH CIRCUIT'S DENIAL OF IFP
The Eleventh Circuit affirmed Judge Graham's arbitrary denial of in forma pauperis to Mason for the following concocted and legally insufficient reason [see [pdf] September 7, 2001 "Opinion"]:

In his initial brief, Mason contends that because the trial court provided no explanation in denying his motion, the district court acted arbitrarily and its decision must be reversed. In his reply brief Mason argues for the first time that he did not follow the district court's order to pay the filing fee because he could not afford to pay the filing fee...Further, this Court does not address issues raised for the first time.


September 7, 2001 Order [embedded]

Mason's in forma pauperis application states the following:

"that in support my request to proceed without prepayment of fees or costs under 28 USC 1915 I declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief sought in the complaint/petition/motion."

See Docket Entry No. 2

On October 31, 2001, the Eleventh Circuit denied a motion for rehearing, while stating only:

The petition(s) for rehearing filed by Appellant is DENIED.
See Order Denying Rehearing .

This kind of legal reasoning, hubris, and dishonesty simply can not be tolerated in a free society and must be stopped.  This is why the legal system is under attack.  This paper makes absolutely clear that judges simply can not be trusted to discipline other judges. 

 


Docket No. 05-0020 

mmason. Freeshell.org/372c/Complaint_02142005.htm 

Judge J. L. Edmondson does not think the string of arbitrary denials of IFP is covered under the Judicial Misconduct and Disability Act;

In this complaint Mr. Mason, although worded differently that his previous complaints, re-makes the allegation that Judge Graham denied him access to the courts by summarily denying a string of motions for in forma pauperis and that Judge Graham did not identify either of the only two reasons allowed for such denial. The allegations of this Complaint are "directly related to the merits of a decision or procedural ruling" and "successive". Therefore, pursuant to Chapter 16 of Title 28 U.S.C. 352(b)( 1 )(ii) and Addendum III Rules 4(b)(2) and 18(c), this Complaint is DISMISSED.
At this point, Judge Edmondson knows that Judge Graham has disrespected clearly established law on multiple occasions and has gotten away with it.

 

[3] This order actually arbitrarily denies three different IFP motions.  See (DE #796, #799,&#811 ).

 

[4] This is a really outrageous abuse of the IFP statute and an insidious attack my right for appellate review in that this IFP denial takes away my right to oppose a whopping $200,000 attorney’s fees judgment that Graham imposed against me. 

[5] In addition to denying the in forma pauperis application, Graham also expressly refuses to disclose his reasons for denying the IFP application by denying a Defendant's Motion for Clarification on Defendant's Motion to Proceed on Appeal In Forma Pauperis by stating: “Defendants Motion for Clarification on Defendant's Motion to Proceed On Appeal In Forma Pauperis:is DENIED as MOOT. ”.

 

[6] This was a particularly offensive abuse of the IFP statute because Graham disallowed me the opportunity fight off a judgment awarding attorney’s fees of $5340.00 when it knew for a fact that such a award would bankrupt Mason. (DE #48, pg. 4);(DE #51).

[7] I had to file two motions for a ruling on his motion to proceed in forma pauperis. (DE #5);(DE #7).

[8] This arbitrary denial comes despite the fact that Graham knows he has four 372(c) pending.