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

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Purpose and Background

This web page is part of collection of web pages on this website, mmason.freeshell.org, that documents Judicial Misconduct and Abuse by U.S. District Judge Donald L. Graham and the extreme measures that his colleagues at the Eleventh Circuit, U.S. Court of Appeals will deploy to conceal the egregious conduct of Judge Graham.  The core allegations of misconduct and abuse by Judge Graham are listed and documented at mmason.freeshell.org/CoreAllegations.htm.  A full panoply of the methods used by the Eleventh Circuit to undermine appellate review is set forth at mmason.freeshell.org/methods.htm. 

ACCESS TO THE COURTS

Denying access to the Courts and appellate review is one of the many methods or tactics deployed by the Eleventh Circuit to place Judge Graham's miscreant behavior above the "rule of law".  This pages documents how the Eleventh Circuit abused the in forma pauperis statutes to keep Marcellus Mason out of out court with his allegations of misconduct directed at Judge Donald L. Graham.  

TABLE OF CONTENTS

Definition of In Forma Pauperis (IFP)

Legal Standard on IFP

Important Intervening Event

ARBITRARY AND LAWLESS DENIALS OF IFP

1. 01-11305

2. 01-16135

3. 01-13664

4. 01-16135 Rehearing

5. 01-13664 Rehearing 

6. 02-11476 

7. 02-11476 Rehearing 

8. 02-10873 

9. 02-10868 

10. 02-10873 Rehearing

11. 02-13314 

12. 04-11894 

13. 05-10623

14. 05-10601

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

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] 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.  Denton v. Hernandez, 504 U.S. 25 (1992).

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)

Fed.R.App.P. 24(a)(3) states:

(3)Prior Approval. A party who was permitted to proceed in forma pauperis in the district court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless:

(A) the district court — before or after the notice of appeal is filed — certifies that the  appeal is not taken in good faith or finds that the party is not otherwise entitled  to proceed in forma pauperis and states in writing its reasons for the certification or finding; or
(B) a statute provides otherwise.

In Martinez, v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir. 2004), the Eleventh Circuit reversed U.S. District Judge Ursula Ungaro-Benages, a colleague of Judge Donald L. Graham at the S.D. Fla, because she "denied Martinez's motion for leave to proceed IFP without explanation."  In Martinez, the Eleventh Circuit stated:

When considering a motion filed pursuant to § 1915(a), "[t]he only determination to be made by the court ... is whether the statements in the affidavit satisfy the requirement of poverty." Watson v. Ault, 525 F.2d 886, 891 (11th Cir.1976). An affidavit addressing the statutory language should be accepted by the court, absent a serious misrepresentation, and need not show that the litigant is "absolutely destitute" to qualify for indigent status under § 1915. Adkins v. E.I. DuPont de Nemours & Co., 335 331, 338-40, 69 S.Ct. 85, 88-89, 93 L.Ed. 43 (1948). Such an affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependents. Id.at 339, 69 S.Ct. at 89. In other words, the statute is not to be construed such that potential litigants are forced to become public charges or abandon their claims because of the filing fee requirements. at 339-40, 69 S.Ct. at 89. "[W]here the [IFP] affidavit is sufficient on its face to demonstrate economic eligibility, the court should first docket the case and then proceed to the question ... of whether the asserted claim is frivolous." Watson, 525 F.2d at 891. The district court must provide a sufficient explanation for its determination on IFP status to allow for meaningful appellate review.

This web page cites several cases for the allegation that Eleventh Circuit abuses the in forma pauperis statutes to unlawfully keep cases out of court that it disagrees with.  This page will demonstrate the following unlawful methods:

• Several of these cases simply asserts that a petition for appellate is frivolous and offers no proof or does not state what the basis for appeal is.   These cases include 01-13664-A, 02-10873-G, 02-10868, and 02-13314.  On this basis alone these denials were unlawful.
• Some of these cases deny in forma pauperis based outright lies that are clearly contradicted by the record.  These cases include:  04-11894 and 05-10623.  
• Each and every case mentioned on this page, except the very first case, 01-11305 seeks appellate review of sua sponte issued filing injunction rendered on September 20, 2001.   Sua sponte issued pre-filing injunctions are illegal.  
• Each and every case mentioned on this page, except the very first case, 01-11305 seeks appellate review of Judge Graham's refusal to disqualify to the allegations of misconduct.  

 

 

 

 

 

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11^th Cir. Case No. 01-11305
Judge Ed Carnes 
April 26, 2001

In this case,. Mason has established poverty by way of an affidavit of indigency. 

See Opinion, Case No. 01-11305, dtd. April 26, 2001.


This opinion then denies the mandamus petition because:

 

His mandamus petition, however, is frivolous because he has failed to establish that he is entitled to mandamus relief to compel the district court to rule on his motion for preliminary injunction. 

The mandamus petition sought to force Judge Graham to rule on a motion for a preliminary injunction that had been pending since November 24, 1999 or some 17 months on the date, April 26, 2001.   Additionally, this petition also sought to have two injunctions rendered by a Magistrate reversed.  


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June 25, 2001, Notice of Appeal
11^th Cir. Case No. 01-13664


A Notice of Appeal was filed on June 25, 2001.  (Docket Entry 795).  District Case No. 99-14027-CV-Graham was assigned Eleventh Circuit Case No.  01-13664.  According to the United States Supreme Court: "The filing of a notice of appeal is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."  GRIGGS v. PROVIDENT CONSUMER DISCOUNT CO., 459 U.S. 56, 58 (1982).  Consequently, Judge Graham no longer has jurisdiction over matter involved in the appeal.  

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September 18, 2001 11^th Cir. Case No. 01-13664

CASE NO . 99-14027-CIV-GRAHAM, Docket Entry No. 877,Judge Graham denied three motions, (D.E. 796),(D.E. 799), (D.E. 811)  to proceed on appeal in forma pauperis in one fell swoop for the following  reason:


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.

 

 

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September 20, 2001  Sua Sponte Issued Pre-Filing Injunction

On September 20, 2001, Judge Graham issues a pre-filing injunction, sua sponte.   See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: "THIS CAUSE came before the Court sua sponte."  This injunction was issued while the appeal was pending and briefs had not been filed.  Sua Sponte Issued Pre-Filing Injunctions have declared invalid by every court to have considered them.  See mmason.freeshell.org/SuaSponte. htm.  This injunction is also makes a so-called finding of bad faith which also violates due process according to the U.S. Supreme Court.  "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 says that the court must comport with due process.  Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991)(" 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,").  The terms of this sua sponte issued pre-fling are:

 

Plaintiff Marcellus M . Mason is Permanently enjoined from filing any additional pleadings in case numbers 99-1402- 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 or from filing any new lawsuit which relates in any way to Plaintiff Marcellus M . Mason's former employment and/or subsequent interactions wit h Defendants without first receiving permission from the Court, as set forth below . This injunction shall apply equally to any persons or entities acting at the behest, direction, or instigation, or in concert with Marcellus M . Mason.

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

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October 2, 2001
11^th Cir. Case No. 01-15754, Mandamus Petition 

October 2, 2001, Mason files a Petition for Mandamus with the Eleventh Circuit seeking among other things, to vacate the sua sponte issued pre-fling injunction of September 20, 2001 and to have Judge Graham disqualified based upon allegations of misconduct.   The mandamus petition is assigned Case No. 01-15754. Mason files mandamus petition despite pending appeal.  The following is an extract from the mandamus petition:

ISSUES PRESENTED 

• The district judge has grossly abused his discretion by imposing unwarranted severe restrictions on how the Plaintiff exercises his right to access the Courts. 
• The district judge has violated the Code of Conduct for Federal Judges. The District Court has willfully and blatantly failed in his duty to handle the business of his Court in a timely manner.
•  The district court’s’ issuance of a “pretrial discovery issue and not and injunction” per se is patently illegal and constituted a naked and aggressive act of usurpation. 
• The District Judge should be disqualified from presiding over any matter in which this Petitioner is a party.
  

In the instant case, the Petitioner will show that the District Judge, Donald L. Graham has been guilty of the following: 

• Graham has usurped the power of law enforcement.
• Graham has usurped the power of the “Legislature.” · 
• Graham improperly interjected himself into matters under the Florida Public Records Act. · 
• Graham has allowed significant and material pretrial motions to languish in the Court without making a decision. Petitioner will show that Graham has allowed motions and appeals to go for months without being addressed. Petitioner will show that Graham has granted summary judgments without addressing filings by this Petitioner, which attacks the summary judgment. Graham has repeated refused to rule on the Petitioner’s Motions For Summary Judgment. · 
• Graham has had Petitioner’s Motion for a Preliminary Injunction to languish in his Court and die on the vine without a ruling on the merits, despite the fact that the motion has been pending since November 24, 1999. · 
• Graham has failed to conduct proper “de novo” reviews when required. Graham has effectively undermined the will of Congress by allowing a Magistrate Judge to decide dispositive matters without the express authorization of all the parties. The Magistrate Judge has been granted “de facto” dispositive authority by Graham. · 
• Graham has been dishonest in claiming that matters have been litigated when they have not been litigated. · 
• On numerous occasions, Graham has exercised judicial authority without explaining the law and the facts that underlie his decisions. In this respect Graham has made a host of arbitrary and capricious decisions. · 
• Graham has been guilty of gross mismanagement and malfeasance in every case to which this Petitioner has been a party to. 

pg. 3.  Petition For Mandamus

Graham has been dishonest in that he has told this Petitioner that he may not state a claim against state actors under 42. U.S.C. § 1981 and these defendants while at the same time, in another case [Case No. 14094, St. Germian v. Highlands County Board of County Commissioners] that was before Graham, he allowed the Plaintiff to state a claim under 42. U.S.C. § 1981. It appears that Graham can do just about anything he wants to do.

Pgs 8-12, Petition For Mandamus,  lists documented evidence of the allegations above and other allegations as well.  

11^th Cir. Case No. 01-16135-D,  Opinion
Nov. 19, 2001
Judge Rosemary Barkett

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.”

Important Intervening Event

The Eleventh Circuit refuses to discuss the validity of the sua sponte issued pre-filing injunction of September 20, 2001 and the allegations of misconduct directed at Judge Graham and Judge Graham's failure to disqualify.  

11th Cir. Case No. Case No. 01-13664-A, Opinion. 
December 12, 2001.

Appellant's motion for leave to proceed on appeal in forma pauperis is DENIED because appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees. See Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir. 1999) (holding that right to proceed IFP is not absolute, but rather is left to the sound discretion of the court).

This is in stark contrast to what the Eleventh Circuit and Judge Ed Carnes said on April 26, 2001:

In this case. Mason has established poverty by way of an affidavit of indigency.

11^th Cir. Case No. 01-16135-D Rehearing, Opinion
Judge Charles R. Wilson, Judge Rosemary Barkett

Dec. 26, 2001

Petitioner's "motion or reconsideration and clarification," which asks this Court to reconsider its November 19, 2001, Order denying Petitioner's application for leave to file this petition in forma pauperis, is DENIED. The Court notes that Petitioner does not dispute that the relief sought in this petition was the same as he sought in No. 01-15754. The Court further notes Petitioner has failed to supply this Court with documentation to support his claim that t e District Court Clerk's Office has refused to docket his notices of appeal. Although Petitioner stated that these documents were filed in No. 01-15754, a review of that file has failed to locate any such documents.

The Clerk is DIRECTED to close this petition.

11th Cir. Case No. 01-13664-A, Opinion
 
February 7, 2002.  
Judge Gerald Bard Tjoflat and Judge Stanley F. Birch, Jr.  

On March 25, 2002, 19 days after the Eleventh Circuit, struck Mason's brief for arguing against the sua sponte issued pre-filing injunction, Highlands County argued for the same sua sponte issued pre-filing injunction in their Answer Brief on pages 18 and 19. However, the Eleventh Circuit, while granting Mason's motion to strike Highlands County brief for arguing for the same sua sponte issued pre-filing injunction, did not make Highlands County file all new answer briefs as they had done Mason. The Eleventh Circuit claimed that it would not consider the sua sponte issued pre-filing injunction in its decision.  See Order Striking Appellees' Brief.  

99-14027 
11^th Cir. Case No. 02-11476-A, Opinion, pgs. 1, 2 ,3 , Judge Joel F. Dubina 
May 1, 2002

In his mandamus petition, Mason asks that this Court (1) issue an order permanently enjoining Judge Graham or Magistrate Judge Frank Lynch, Jr. from ever presiding over any matter to which Mason is a party, (2) vacate the district court's order enjoining Mason from filing any additional pleadings in pending lawsuits and in any new lawsuit which relates in any way to Mason's former employment without-fir-receiving permission from the district court...Mason also requests that this Court vacate the district court's order enjoining Mason from filing any additional pleadings in pending lawsuits and in any new lawsuit which relates in any way to Mason's former employment without first receiving permission from the district court. Although Mason has not filed a notice of appeal from the district court's order requiring him to receive the permission of the district court from filing any additional pleadings or from filing any new lawsuits related to his former employment or subsequent interactions with the defendants, Mason may raise this issue on appeal. See generally, Procup v. Strickland, 760 F.2d 1107 (1lth Cir. 1985) (reviewing the district court's order enjoining a defendant from filing additional pleadings unless they were first submitted by an attorney submitted by an attorney admitted to practice in that court). Mason has an adequate alternative remedy on appeal regarding this issue...Accordingly, Mason's IFP motion is DENIED because his mandamus petition is frivolous. 

The Court this petition is frivolous because:  Mason also requests that this Court vacate the district court's order enjoining Mason from filing any additional pleadings in pending lawsuits and in any new lawsuit which relates in any way to Mason's former employment without first receiving permission from the district court. "Mason may raise this issue on appeal." At this point as indicated above, the Eleventh Circuit has already struck Mason's brief for arguing the sua sponte pre-filing injunction, and have refused to consider a at least two other petitions seeking relief.

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.

June 27, 2002, 
11^th Cir. Case No. 02-10873-G, 
Judge Rosemary Barkett

Appellant's motion for leave to proceed on appeal in forma pauperis is DENIED because the appeal is frivolous.  See Pace v. Evans, 709 F.2d 1428 (11th Cir. 1983).

01-14230
11th Cir. Case No. ,02-10873-G Opinion
Aug. 29, 2002
Judges Black, Barkett, and Wilson refused to offer a reason for IFP denial stating only: 

Appellant has filed a Motion for Clarification. Upon review, appellant's motion is DENIED. This Court's order of June 27. 2002, stands as written.

On October 16, 2002, the Eleventh Circuit decided the direct appeal, D.C. Case No. 99-14027-CV-Graham, 11th Cir. Case No. 01-13664. Opinion (pdf). In the entirety of the very verbose 14 page (unpublished) opinion, there is no discussion as to why the so-called "discovery orders",[(D.E. #201); ,[(D.E. #246)] were or were not violative of the First Amendment; however, there is ample discussion about Mason's so-called violation of these "discovery orders."  The Eleventh Circuit ignores the issue of whether or not Judge Graham should have disqualified even though it admitted it had been fully briefed on the issue.   See Disqualification Issue.   Additionally, the Eleventh does not mention the record acts of judicial misconduct and abuse that were cited to support to support the issue of disqualification.  Lastly, and even more egregious, the Eleventh Circuit uses the sua sponte issued pre-fling injunction of September 20, 2001 that it said it was "beyond the scope of appeal" and promised not consider to justify a Rule 41(b), Fed.R.Civ.P. that occurred on June 20, 2001.  See "Implicit finding Beyond the Scope.", pgs. 13, 14, Opinion.  

Pages 13 and 14 of this opinion states: 

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 filing without explicit permission and initiate criminal contempt proceedings. Therefore, the record supports the district court's implicit finding that a sanction less than dismissal of the action with prejudice would have no effect." 

This is the same order of September 20, 2001 , that the Eleventh Circuit claimed was "beyond the scope of appeal."  See Striking Briefs Above, Appellee and Appellant.  

Nov. 6, 2002
11^th Cir. Case No. 02-13314, Opinion
Judge Susan Black

Appellant's motion for leave to proceed on appeal in forma pauperis is DENIED because the appeal is frivolous. " See Pace v. Evans, 709 F.2d 1478 (11th Cir.) 1983).

ELEVENTH CIRCUIT APPELLATE TIMELINE

• A Notice of Appeal was filed on June 25, 2001.  (Docket Entry 795).  District Case No. 99-14027-CV-Graham was assigned Eleventh Circuit Case No.  01-13664.

• On September 20, 2001, Judge Graham issues a pre-filing injunction, sua sponte.   See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: "THIS CAUSE came before the Court sua sponte."  This injunction was issued was the appeal was pending and briefs had not been filed.  

• October 2, 2001, Mason files a Petition for Mandamus with the Eleventh Circuit seeking among other things, to vacate the sua sponte issued pre-fling injunction of September 20, 2001.   The mandamus petition is assigned Case No. 01-15754. Mason files mandamus petition despite pending appeal.  

• December 5, 2001, the Eleventh denies mandamus petition in a terse, one sentence page opinion.  See Opinion.  The " petition for writ of mandamus and petition for writ of prohibition" is DENIED."  The direct appeal, Eleventh Circuit Case No. 01-13664, was still pending and no briefs had been filed at this point.

• December 12, 2001, the Eleventh denies an in forma pauperis and refuses to waive the filing fee for the direct appeal, Case No. 01-13664-A, without providing any facts, the Eleventh Circuit simply asserts in mere conclusory fashion, "appellant has not truthfully provided this Court with information concerning his ability to pay filing and docketing fees."  Order Denying IFP.  

• January 25, 2002, Eleventh Circuit, Case No. 01-157154, deny motion for clarification and rehearing, and refuse to provide legal or factual basis for denying mandamus petition.  Order Denying Clarification.   

• On March 6, 2002, Eleventh Circuit Case No. 01-13664, the Eleventh Circuit struck Mason's brief for arguing against the September 20, 2001 sua sponte issued pre-filing injunction. Moreover, the Eleventh Circuit ordered Mason to file all new initial briefs less any mention of the sua sponte issued pre-filing injunction. The Eleventh Circuit claimed the sua sponte issued pre-filing injunction was "beyond the scope of appeal". See Order Striking Appellant's Brief.  

• On March 25, 2002, 19 days after the Eleventh Circuit, struck Mason's brief for arguing against the sua sponte issued pre-filing injunction, Highlands County argued for the same sua sponte issued pre-filing injunction in their Answer Brief on pages 18 and 19. However, the Eleventh Circuit, while granting Mason's motion to strike Highlands County brief for arguing for the same sua sponte issued pre-filing injunction, did not make Highlands County file all new answer briefs as they had done Mason. The Eleventh Circuit claimed that it would not consider the sua sponte issued pre-filing injunction in its decision.  See Order Striking Appellees' Brief.  

• On October 16, 2002, the Eleventh Circuit decided the direct appeal, D.C. Case No. 99-14027-CV-Graham, 11th Cir. Case No. 01-13664. Opinion (pdf). In the entirety of the very verbose 14 page (unpublished) opinion, there is no discussion as to why the so-called "discovery orders",[(D.E. #201); ,[(D.E. #246)] were or were not violative of the First Amendment; however, there is ample discussion about Mason's so-called violation of these "discovery orders."  The Eleventh Circuit ignores the issue of whether or not Judge Graham should have disqualified even though it admitted it had been fully briefed on the issue.   See Disqualification Issue.   Additionally, the Eleventh does not mention the record acts of judicial misconduct and abuse that were cited to support to support the issue of disqualification.  Lastly, and even more egregious, the Eleventh Circuit uses the sua sponte issued pre-fling injunction of September 20, 2001 that it said it was "beyond the scope of appeal" and promised not consider to justify a Rule 41(b), Fed.R.Civ.P. that occurred on June 20, 2001.  See "Implicit finding Beyond the Scope.", pgs. 13, 14, Opinion.