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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
ARBITRARY AND LAWLESS DENIALS OF IFP
In forma pauperis (IFP) is a legal term derived from the Latin phrase in the character or manner of a pauper. 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. 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.
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).
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.
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
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.
HOW TO ANALYZE THIS DATA
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:
11th 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.
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.
June 25, 2001, Notice of Appeal
11th 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.
September 18, 2001 11th 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.
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 .
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:
In the instant case, the Petitioner will show that the District Judge, Donald L. Graham has been guilty of the following:
pg. 3. Petition For Mandamus
Pgs 8-12, Petition For Mandamus, lists documented evidence of the allegations above and other allegations as well.
11th Cir. Case No. 01-16135-D,
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.”Among other things, this appeals seeks appellate review of the sua sponte issued pre-filing injunction of September 20, 2001, and the failure of Judge Graham to disqualify due to allegations of misconduct and abuse.
Judge Rosemary Barkett, Judge Susan H. Black , Judge Stanley Marcus
11th Cir. Case No. Case No. 01-15754, Opinion
The Eleventh Circuit denies a petition for mandamus in a terse one page, one sentence opinion. "The “petition for writ of mandamus and petition for writ of prohibition” is DENIED”". At this point, the Eleventh Circuit is now aware that it has declined to review allegations of misconduct leveled at Judge Graham. On September 20, 2001, 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, of this document boldly asserts:
THIS CAUSE came before the Court sua sponte.
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).Dec. 12, 2001.
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.
11th Cir. Case No. 01-16135-D
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.
Again, though fully briefed, 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. 01-13664-A, Opinion February 7, 2002. Judge Gerald Bard Tjoflat and Judge Stanley F. Birch, Jr.
Appellant has filed a "motion for reconsideration and clarification," which is construed as a motion for reconsideration of this Court's order dated December 12, 2001, denying leave to proceed on appeal in forma pauperis. Upon reconsideration, appellant's motion for leave to proceed on appeal in forma pauperis is Denied.
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.
March 25, 2002
11th Cir. CaseNo. 01-13664-A
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.
99-14027 11th Cir. Case No. 02-11476-A, Opinion
Judge Gerald Bard Tjoflat Judge Stanley F. Birch, Jr.
Jun. 13, 2002
Judge Charles R. Wilson
Appellant’s motion for leave to file an appeal 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.
01-14230 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.
October 16, 2002
11th Cir. Case No. 01-13664
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."
Nov. 6, 2002
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).See Case No. 02-13314, Order dtd. Nov. 6, 2002.
11th Cir. Case No. 04-11894, Opinion
May 20, 2004
Judge Ed Carnes and Judge Frank M. Hull
could have timely appealed the September 20, 2001 order, but did not do so.This is blatant lie and another egregious example of dishonesty for several reasons. Firstly, a petition for mandamus was filed on September 29, 2001, or nine days after the sua sponte issued pre-filing injunction of September 20, 2001 was rendered. This mandamus petition was docketed by the Eleventh Circuit as Case No. 01-15754. Judge Graham issued this order after the case was closed on June 20, 2001 and a notice of appeal has already been filed on June 25, 2001 which was docketed by the Eleventh Circuit as Case No. 01-13664. No briefs in the direct appeal had filed yet in
11th Cir. Case No. 05-10623-I, Opinion
Judge Rosemary Barkett
Mar. 16, 2005
According to the Eleventh Circuit, Mason sought relief for the following reasons:
Marcellus M . Mason, Jr ., proceeding pro se, filed the instant petition for a writ of mandamus, requesting that this Court (1) disqualify Judge Donald Graham from his civil suit against his former employer, retroactive to February 2001 ; (2) vacate all decisions and rulings by Judge Graham in this case since February 1999, including the September 20, 2001 order enjoining him from filing any pleadings or additional related lawsuits without court permission ; (3) order Judge Graham to file a response to the allegations in this petition ; (4) publicly rebuke Judge Graham for his misconduct ; and (5) order Judge Graham to rule in Mason's favor on his pending requests to file Rule 60(b ) motions and then rule on the merits of those motions.
This characterization, though less than perfect, clearly puts the Eleventh Circuit on notice yet again that:(1)Judge Graham failed to disqualify due to misconduct; (2)The sua sponte issued pre-filing injunction of September 20, 2001 is not valid. Rather than rule on the merits of the petition, the Eleventh Circuit asserts the following lies and half-truths.
Furthermore, Mason appealed the dismissal of his case as well as the district court' s injunction order of September 20, 2001, which required Mason to seek the court's permission to file any motions in his case, including Rule 60(b) motions . Therefore, he had adequate alternative remedies as to his requests that this Court (I) vacate all decisions by Judge Graham entered after February 1999, including the September 20, 2001 order, and (2) order Judge Graham to file and rule on the merits of Mason's Rule 60(b) motions . Finally, because recusal is not warranted and Mason already has appealed the denial of his recusal motion, he has shown no basis for this Court either t o require Judge Graham to respond to this petition or to publicly rebuke Judge Graham.
Mason will deal with each lie and half-truth in turn:
11th Cir. Case No. 05-10601, Opinion
Judge Joel F. Dubina
April 27, 2005
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). Appellant's motion for remand is DENIED.
ELEVENTH CIRCUIT APPELLATE TIMELINE