an Appeal Right
See how the Eleventh Circuit undermines an appeal that
attacks Judge Donald L. Graham for misconduct. The
Allegations of misconduct never reach the light of day.
Additionally, the Eleventh Circuit is also adept at undermining
a petition for mandamus to conceal Judge Graham's
In Yet Another Landmark "unpublished
Opinion", the Eleventh Circuit refuses to discuss what Judge Graham did or the
legality of what Judge Graham did. In a mere conclusory fashion,
simply asserts, by fiat, that Judge Graham has absolute immunity.
PUTRID AND BLANTANT DISHONESTY
Among other things, Judge Donald L. Graham is a liar and a bully. Judge Graham's
miscreant behavior is only matched by other Federal Judges attempt
to conceal his blatant misconduct. For a fully documented case study of Judicial Misconduct
and how federal judges mock the laws and rules with respect
to punishing rogue federal judges. See
IMMUNINITY FOR DISRESPECTING THE LAW-U.S. CONSTITUTION AND STATUTES
Judge Graham and his Magistrate, Frank Lynch, Jr. were given immunity for totally
disrespecting the U.S. Constitution and the Congress by simply ignoring statutes passed by Congress. Judge Donald L. Graham and his Magistrate,
Frank Lynch, Jr., violated the following:
provision of law to the contrary—
a judge may designate a magistrate judge to hear and determine any pretrial
matter pending before the court, except a motion for injunctive relief...
28 U.S.C. § 636(b)(1)(a).
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.
Amendment I, U.S. Const.
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively, or
to the people.
Specifically, Judge Graham, Magistrate Judge Frank Lynch, Jr. are of the
opinion that a federal magistrate can:
Issue an injunction.
Prohibit direct communication with the government, Highlands County Board of
County Commissioners, Sebring, FL.
Make rules regarding Florida Public Records Act, where the federal
government has absolutely no jurisdiction.
“Plaintiff shall be prohibited from contacting any of the
including their supervisory employees and/or the individual Defendants,
regarding any matter related to this case.”
shall correspond only
with Defendants' counsel including any requests for public records.”(DE
“Plaintiff shall be prohibited from
contacting any of the Defendants, including their supervisory employees
the individual Defendants, regarding any matter related to this case” Case No. 99-14027-CIV-Graham, (DE
central question to ask when you read the "opinion" below is: What
is Judge Donald L. Graham given absolute immunity from?From reading the
"opinion", you have absolutely no idea what Judge Graham did,
consequently, a reasonable-minded person can only come to the same
conclusion as the Eleventh Circuit. The Eleventh Circuit simply
ignores all arguments against absolute immunity.
When one reads the arguments made by the Assistant US Attorney for
Judge Graham having immunity, the puzzle starts to fill in little more,
however one is still left with the question: What
is Judge Donald L. Graham given absolute immunity from? The tactic
used by the AUSA is somewhat amusing in that she simply parses or
peruses the complaint looking for phrases that are prejudicial and
sentences that will not overcome judicial immunity. She does not
respond to the substantive legal arguments in the Complaint or the
Appeal brief as to why Judge Graham does not have absolute immunity.
QUESTION #1: DOES THE MERE FACT THAT
A JUDGE DONS A ROBE AND SITS IN THE COURTHOUSE AND DRAFTS ANY
ORDER HE SEES FIT ENTITLE HIM OR HER TO JUDICIAL IMMUNITY?
QUESTION #2: IS A JUDGE
ACTING IN A JUDICIAL CAPACITY IN A CIVIL SUIT WHEN HE RENDERS AN ORDER
PROHIBITING DIRECT COMMUNICATION WITH THE GOVERNMENT OUT OF COURT BY A
PRO SE PLAINTFF, OR WHEN HE PROHIBITS DIRECT REQUESTS TO THE GOVERNMENT
FOR PUBLIC RECORDS UNDER FLORIDA LAW?
AND REFERENCED DOCUMENTS ONLINE
COMPLAINT FILED IN DISTRICT COURT. The complaint was filed in
state court and removed to fedeal court by Judge Graham so that U.S.
District Judge Moore could hear the case. The Complaint was
subsequently amended, but the core allegations against Judge Graham
court correctly dismissed
the claims against District Court JudgeGraham,Magistrate
Judge Lynch, and attorneys Kojos and Sorolis for failure to state a
claim. Federal Rule of Civil Procedure
allows dismissal of a claim if it is clear that, as a matter of law, no
facts consistent with the pleadings could be proven that would entitle
plaintiff to relief. SeeNeitzke
v. Williams, 490 U.S.
319, 326-27 (1989).
the facts in a light most favorable to Mason, we find that he
fails to state a cognizable First
claim against Judges Graham and Lynch that would entitle him to relief
1983, § 1985 or § 1986. Moreover, judges are entitled to
immunity for all acts undertaken in their official capacity unless they
in "clear absence of all jurisdiction." SeeBolin v.Story,
225 F.3d 1234, 1239 (11th Cir. 2000). Neither
party disputes that the alleged constitutional violations arose out of
taken by Judges Graham and Lynch in their official capacities. While Mason alleges that the orders issued by
both judges were "illegal and void ab initio" he fails to plead any
facts that show that the judges did not act within their legitimate
jurisdiction. Therefore, absolute immunity
precludes § 1983, § 1985 and § 1986 claims against Lynch
and Graham. judicial
THE US ATTORNEY'S
FOR JUDICIAL IMMUNITY
If you read the brief by Judge Graham's attorney, Assistant U. S.
Attorney, Kathleen M. Salyer, you won't be able to tell what Judge
Graham is being sued for. Ms. Salyer uses a slick technique
called "prevarication" by diverting attention away from the central
point, or in this case, the
reason why Judge Graham was sued. Judge Graham was sued
because he issued two injunctions that the Plaintiff/Appellant asserted
violated his ABSOLUTE First Amendment right to communicate with the
government directly. The following are the factual reasons AUSA
Salyer says Judge Graham has absolute immunity:
In this case, all of the allegations in the
complaint concerning Judge Graham and Magistrate Judge Lynch involved
their official capacities. All three counts in the complain concerning
defendants (Counts 14-16), arose from their involvement as the district
judge and magistrate judge, respectively, assigned to Mason v.
Library Cooperative et al., SDFL Case No. 99-CV-14027,
R1:31 at 110-79; see also R1:31 at114
("[t]his case was originally assigned Honorable Judge Davis and
subsequently reassigned to Donald L. Graham") ; R1:31 at 115 ("Frank
Lynch was assigned as the Magistrate Judge shortly after the lawsuit was
filed"). Thus. under the first prong of the Stump test, both defendants
are entitled to absolute immunity.
to the second prong, there are no allegations in the complaint that
defendants acted in the clear absence of all jurisdiction. The
the complaint alleged only that Magistrate Judge Lynch failed to offer
legal support for certain orders (sec R1:31 at120, 123, 126, 139, 141), that he was without the legal
issue an injunction (id. at122); that
both defendants issued orders that allegedly were "illegal and void ab
initio" (see id. at128, and had no
jurisdiction with respect to the Florida Public Records Act (see id. at130, 132, 158); and that Judge Graham failed
to address certain legal issues in a final order in Case No.
id. at146). These allegations simply do
not amount to claims of extrajudicial acts on the part of either
would defeat a claim of absolute immunity. See Bolin, 225 F.3d at 1239
(judicial immunity applies even where judges act are in excess of his
discretion, provided the judge does not act in "clear absence of all
jurisdiction"). Thus, the district court properly dismissed Masons
complaint as frivolous for failure to state a claim upon which relief
ACTS COMMITTED BY
JUDGE GRAHAM THAT PROMPTED THE LAWSUIT
MARCELLUS MASON'S BRIEF AND LEGAL ARGUMENTS AGAINST JUDICIAL IMMUNITY
Pages 26-27, Initial
Brief, asserts the following facts which abrogates any judicial or
1.Defendants Graham and Lynch do not have
Mason repeatedly attacked these illegal orders,
99-14027, (Doc. 201)(Doc. 246), and the district court has adamantly
cite legal authority for its actions each time.This case was dismissed based upon the Defendants’
sanctions in the form of dismissal and the sole basis for the dismissal
action was Mason’s alleged violations of court orders, (Doc. 201);(Doc.
(Doc. 511);(Doc. 646);(Doc. 766);(Doc. 791).The
Appellees have failed to argue the
legality of the court orders that led to the dismissal of this case, (Doc.
246).These orders, (Doc.
“Plaintiff shall be prohibited from contacting any of the
including their supervisory employees and/or the individual Defendants,
regarding any matter related to this case.”(DE
shall correspond only
with Defendants' counsel including any requests for public records.”(DE
“Plaintiff shall be prohibited from
contacting any of the Defendants, including their supervisory employees
the individual Defendants, regarding any matter related to this case”Case No. 99-14027-CIV-Graham, (DE
Defendants Graham and Lynch’s sole factual
basis for claiming absolute immunity is the mere assertion that:
What is certain is that the judges' actions
with respect to Plaintiff
all occurred within the context of the civil case which was properly
before the court.
Defendants Graham and
Lynch offer no other facts
to support their claim of absolute immunity.The Defendants have utterly failed in their legal duty to
have they even attempted to explain, why they should be afforded
immunity.The mere fact a decision was
the context of the civil case which was
properly pending before the court”
does not entitle the Judge to absolute immunity.See
Barrett v. Harrington, 130 F.3d
246 (6th Cir. 1997)(rejecting absolute immunity for comments made to
about a pending case properly before the court.); Harper v. Merckle, 638 F.2d 848 (5th
Cir. 1981)(communications to the
press and to city officials not afforded absolute immunity even though
had criminal proceeding pending).Essentially Graham
and Lynch have stated that they have absolute immunity merely because
so, and Plaintiff or nobody else need question their unsupported legal
conclusions.Respected jurists, who are
not delusional, have stated that this type of response is simply not
enough.“But the conduct of a
judge surely does not become a
judicial act merely on his own say-so.A
judge is not free, like a loose cannon, to inflict indiscriminate
whenever he announces that he is acting in his judicial capacity.”(quoting Justice Stewart, dissenting) Stump
v. Sparkman, 435 U.S.
349, 367 (1978).“The
proponent of a claim to absolute immunity bears the burden of
justification for such immunity.”Antoine
v. Byers & Anderson, Inc., 508 U.S.
429, 432 (1993)
Pages 27-41, Initial
Brief, asserts the following legal reasons why judicial or absolute
immunity for Judge Graham is not appropiate:
so clearly established that case law is not necessary.The Eleventh Circuit has has expressly
Case law is not always necessary to clearly
establish a right. A right may be so clear from the text of the
federal statute that no prior decision is necessary to give clear
notice of it
to an official.Also, a general
constitutional rule set out in preexisting case law may apply with
clarity to the specific circumstances facing the official.The official's conduct may be so egregious
that an objective and reasonable official must have known it was
unconstitutional even without any fact-specific caselaw on point.
Rowe v. Fort
2002 U.S. App. 885, *19 n. 10, 15 Fla. Weekly Fed at C241 n. 10 (11th
judges have long enjoyed a comparatively sweeping form of immunity,
not perfectly well defined.”Forrester
v. White, 484 U.S.
226 (1988).“A long
line of this Court's precedents acknowledges that, generally, a judge
from a suit for money damages.”Mireles
v. Waco, 502 U.S.
(1991).“[I]mmunity is overcome in only two sets of
circumstances. First, a judge is not immune from liability fornonjudicial actions, i.e., actions not taken
in the judge's judicialcapacity. Second,
a judge is not immune for actions, though judicial in nature, taken in
absence of all jurisdiction.”Id. at Pg. 12.
judges’ acts were not judicial in nature.
“The relevant cases demonstrate that the factors
determining whether an act by a judge is a 'judicial" one relate to the
nature of the act itself i.e., whether it is a function normally
performed by a
judge, and to the expectations of the parties, i.e., whether they dealt
the judge in his judicial capacity.”Stump
v. Sparkman, 435 U.S.
349,363 (1978).“It is
the nature of the function performed - adjudication - rather than the
of the actor who performed it - a judge - that determines whether
immunity attaches to the act.”Forrester
v. White, 484 U.S.
220 (1988).“An act
is non-judicial if it is one not normally performed by a judicial
officer or if
the parties did not deal with the judge in his official capacity.”King v. Love, 766 F.2d 962 (6th Cir.
also Mireles v. Waco, 502 U.S. 9, 12 (1991);
Peeler, 756 F.2d 1547, 1553
(11th Cir. 1985); Slavin v. Curry, 574 F.2d 1256, 1263
(5th Cir. 1978).The mere
fact that a judge commits an act does not make the act judicial in
nature.In King v. Thornburg,
Supp. 336, 341-2 (S.D.Ga. 1991)(citing
Harris v. Deveaux,
780 F.2d 911 (11th Cir. 1986),
the Court, following the dictates of the
Eleventh Circuit Court of Appeals, focused on the following four
determining whether a judge's conduct constituted a judicial act:
precise act complaint of . . . is a
events involved occurred in the judges chambers;
controversy centered around a case then pendingbefore the judge; and
confrontation arose directly and immediately out of a visit to the
judge in his
these factors to the instant case yields that the trial court violated
the four prongs.Specifically, it is not
a judicial function for a United States District Court to direct that
Plaintiff, a non-lawyer, must notify a private for profit attorney in
request Public Records under Florida Law.Defendants have not cited any case in the
entire history of the United States where any
other federal judge felt
that he or she has this power.As to the
second prong, the events that led to the issue of the orders in
not occur in the Judge’s chambers, or in any courtroom.Presumably, the orders in question were
issued in the Judge’s chambers, but the alleged conduct occurred out of
presence of the Court and at least 80 miles away from the Fort Pierce
S.D.Fla.The controversy did not arise
directly and immediately out of a visit to the judge in his official
capacity.The controversy arose out of
an alleged visit to the Plaintiff’s own government in his hometown of Sebring, Florida,
is at least 80 miles away from Fort
orders in question were not “judicial in nature” because there was
nothing to adjudicate because Mason has a First Amendment right to
with his government without seeking the permission of private for
attorneys.The orders of June 19, 2000
and July 25, 2000, (Doc. 201), (Doc. 246), are void because they are
unconstitutional.The Southern District
of Florida has explicitly adopted the Rules Regulating The
Florida Bar.See Rule
I, Standards For Professional Conduct
(“Acts and omissions by an attorney (emphasis added) admitted
practice before this Court, individually or in concert with any other
persons, which violate the Rules of Professional Conduct, Chapter 4 of
Rules Regulating The Florida Bar shall constitute misconduct and shall
grounds for discipline…”).See
3, Retention Of
Membership In The Bar Of This Court.The
pertinent comments to Rule
4-4.2, R. Regulating Fla. Barspecifically states the following:
parties to a matter may communicate directly with each
other and a lawyer having independent justification for communicating
other party to a controversy with a government agency with a government
officials abut the matter. Communications authorized by law include,
example, the right of a party to a controversy with a government agency
speak with government officials about the matter.
particular phraseology of the constitution of the United States
strengthens the principle,supposed to
be essential to all written constitutions, that a law repugnant to the
constitution is void, and that courts, as well as other departments,
by that instrument."Marbury v.
Madison,1 Cranch 137 (1803).“The
limits placed by the First
Amendment on the Government extend to its judicial as well as
branch.”Equal Emp. Opp. Comm.
v. The CatholicUniv., 83 F.3d 455 (D.C. Cir. 1996)(citing
v. Saint Nicholas Cathedral of the Russian Orthodox Church of North
363 U.S. 190, 191 (1960)).
Mason has a plenary right to
government about any subject he so desires and is never required to
permission of private for profit attorneys that live 90 miles away in
speak to his government.“It is
fundamental that the First Amendment ‘was fashioned to assure
interchange of ideas for the bringing about of political and social
desired by the people.’”Legal
Services Corporation v. Velazquez, 531 U.S.
533, 548 (2001).Mason did
not lose his right to communicate with the government directly when he
his lawsuit.The district court punished
the Plaintiff for exercising his right of “free speech” by dismissing a
meritorious lawsuit.99-14027, (Doc.
766)(Doc. 791).Mason has a clear right
to communicate with his government about the matters in this
is nothing that prohibits one party to a litigation from making direct
with another party to the same litigation.These rules are designed to regulate the conduct of nonlawyers,
simply do not apply to the conduct of nonlawyers.”E.E.O.C. v. McDonnell Douglas Corp.,
948 F.Supp. 54, 55 (E.D.Mo. 1996).The
communication between the government and an individual is not generally
to judicial oversight.Mason had no
reasonable expectation that a federal judge would attempt to administer
Florida Public Records Act.See Harris
v. Harvey, 605 F.2d 330 (7th Cir. 1979)(“ Such acts were not judicial because they were
not functions normally performed by a judge, and were not "to the
expectations of the parties"”);Barrett v. Harrington, 130 F.3d
(6th Cir. 1997); Harper v. Merckle, 638 F.2d 848 (5th
jurisdiction in the United
States has affirmed a citizen’s right
petition the government even in the midst of bitter litigation.See American Canoe Ass’n Inc. v.
City of St. Albans,
18 F.Supp. 2d 620 (S.D.W.Va. 1998);Camden v. State Of Md., 910 F. Supp. 1115, 1118 n.8 (D. Md.
Frey v. Dept. of Health
& Human Services, 106 F.R.D. 32, 37(E.D.N.Y. 1985).
Holdren v. General Motors
Corp., 13 F. Supp. 2d 1192 (D.Kan. 1998);In Re Discipline Of Schaefer, 117 Nev. Adv. Op. No. 44, 36173 (Nev.
In Re Hurley, Case No. No. 97-6058 SI,
(8th Cir. 1997);
Jones v. Scientific
Colors, Inc., Case Nos. 99 C 1959/00 C 171 (N.D.Ill. 2001);
Loatman v. Summit Bank, 174 F.R.D. 592 (D.N.J. 1997);
Miano v. AC & R
Advertising, Inc, 148 F.R.D. 68, 75 (S.D.N.Y.1993);Pinsky v. Statewide Grievance Committee,
578 A.2d 1075,1079 (Conn. 1990);Restatement of the Law (Third) The Law
Governing Lawyers, §99. Cmt. K., pg. 76.Reynoso v. Greynolds Park Manor, Inc,
659 So.2d 1156, 1160 (Fla.App. 3 Dist. 1995).
State v. Miller, 600
N.W.2d 457; 1999 Minn. LEXIS 592 (Minnesota Supreme Court 1999);Stone v. City Of Kiowa, 263 Kan. 502; 950
P.2d 1305; 1997 Kan. LEXIS 177, *34 (Kansas Supreme Ct. 1997);
Terra Intern. v. Miss.
Chemical Corp.,913 F. Supp. 1306(N.D.Iowa 1996)Tucker
v. Norfolk & Western Ry. Co., 849 F.Supp.1096, 1097-1098
U.S. v. Heinz, 983
F.2d 609 (5th Cir. 1993);
U.S. v. Heinz, 983
F.2d 609, 613 (5th Cir. 1993); U.S. v.
Ward, 895 F.Supp. 1000, (N.D. Ill.
1995);Vega v. Bloomsburgh, 427 F. Supp. 593,
595 (D. Mass.
1977).There has been no other competent court of
jurisdiction in the entire history of the United States to direct a
non-lawyer to seek the permission of a private for profit lawfirm in
communicate with his government.
the Appellees have inferred that a federal judge has the “inherent
regulate Mason’s out of court and private communications with his
however this assertion is sadly mistaken and counter to the Supreme
opinions.(Doc.3 , pg. 9);
Defendants Koji and Sorolis Response To Plaintiff’s Motion for Summary
Judgment, pg. 9);(Doc. 3, pg. 3).“It is
true that the exercise of the inherent
power of lower federal courts can be limited by statute and rule, for
"[t]hese courts were created by act of Congress."Chambers
v. NASCO at 501 U.S.
the First Amendment
precludes the government from commanding directly, it also precludes
government from accomplishing indirectly.”Rutan v. Republican Party Of Illinois, 497 U.S. 62, 77-78 (1990).
First Amendment would, however, be
a hollow promise if it left government free to destroy or erode its
by indirect restraints so long as no law is passed that prohibits free
press, petition, or assembly as such.We
have therefore repeatedly held that laws which actually affect the
these vital rights cannot be sustained merely because they were enacted
purpose of dealing with some evil within the State's legislative
even because the laws do in fact provide a helpful means of dealing
an evil.”Mine Workers v. Illinois Bar Assn., 389 U.S.
217 (1967).“The right to petition government for redress
of grievances — in both judicial and administrative forums — is ‘`among
most precious of the liberties safeguarded by the Bill of Rights.’Because of its central importance, this right
is ‘substantive rather than procedural and therefore cannot be
regardless of the procedural means applied.’"Graham
v. Henderson, 89 F.3d 75 (2nd
Cir. 1996)(quoting United Mine Workers v.Illinois State Bar Ass'n, 389 U.S. 217, 222
Defendant judges’ acts were of an administrative, legislative, and
a court official acts in a capacity in
which he is not called upon to exercise judicial or quasi-judicial
he is not entitled to absolute judicial immunity.”Richardson v. Koshiba, 693 F.2d 911
(9th Cir. 1982).‘[J]udges
do not receive immunity when acting in administrative, legislative, or
executive roles.”Barrett v.
Harrington, 130 F.3d 246 (6th Cir. 1997)(citing
Forrester v. White
at 484 U.S.
at 229-30, 108 S.Ct. at 545-46).To say
that: (1) “Plaintiff shall be prohibited
from contacting any of the Defendants, including their supervisory
and/or the individual Defendants, regarding any matter related to this
99-14027-CIV-Graham, (DE #201);” and (2)
Plaintiff shall correspond only with
Defendants’ counsel including any requests for public records; and Case No.
99-14027-CIV-Graham, (DE #246); is a clear
example of rule-making and/or administration.“[J]udicial
immunity has not been
extended to judges acting to promulgate a code of conduct for
attorneys.”Forrester v. White at
Courts have made it abundantly clear that the rule-making and policy
respect to Florida Public Records is function of the legislature, not
417 So 2d 1053, 1055 (App. Dist. 3 1982).It couldn’t be any clearer that
Graham and Lynch were attempting to impose ABA Model Rule 4.2
and its equivalents upon Mason.The U.S.
Court in Supreme Court Of VA. v. Consumers Union, 446 U.S.
(1980) held that “propounding the Code [State Bar] was not an act of
adjudication but one of rulemaking.”However, unlike the Judges in Consumers Union, federal
the state of Florida
have no statutory authority or constitutional authority to promulgate
rules for non-lawyers or lawyers either, therefore Defendants Lynch and
are not entitled to legislative immunity.See Rule 3, Retention Of Membership In The Bar Of
This Court(noting that the Rules
Regulating the Florida Bar are promulgated by the Supreme Court of
is no code of conduct for non-lawyers, therefore Lynch and Graham
one.This is a legislative act.After Lynch and Graham created their code of
conduct for laymen, they then decided to bring charges for violations
code.(99-14027, Docs. 766, 791).This is an act of law enforcement.See Lopez v.
Vanderwater, 620 F.2d 1229
(7th Cir. 1980)(holding that a judge “is not immune from
liability for his prosecutorial acts.”).See also Smith v. Shook, 237 F.3d 1322, 1324
that a citizen lacks
standing to sue because a prosecutor does not exercise its discretion
an action).Along this
vein, the Court in Sevier v.
Turner, 742 F.2d 262 (6th Cir. 1984)ruled that the Defendant Judge
did not have
absolute immunity because the Judge “undertook prosecutorial duties
constituted nonjudicial acts” by initiating criminal prosecutions
fathers who were in arrears on their child support payments.Similarly, in the instant case, the
Magistrate initiated a civil contempt charge against Mason because
allegedly violated the Court’s administration plan of the Florida
Records Act by submitting his public records request to his government
directly, and not to their private for profit attorneys.The administration of the Florida Public
Records Act as called for by the orders, (Doc.
201)(Doc. 246), in the
instant case, is not normally performed by a federal judge in the
his duties.See Henderson
v. State, 745 So.2d 319 (Fla.
1999) “[W]e do not equate the acquisition of public documents under
with the rights of discovery afforded a litigant by judicially-created
procedure…”See also Scotto
v. Almenas, 143 F.3d
105, 111 (2nd Cir. 1998)(“ [t]he more distant a function is from the
process, the less likely absolute immunity will attach.”).See also Harris v. Harvey, 605 F.2d
330 (7th Cir. 1979)(holding that the Judge’s act in public criticizing
defendant before his court was not judicial in nature in that the acts
Judge were not to the expectations of the parties).Similarly, in Harper v. Merckle, 638
F.2d 848 (5th Cir. 1981),
the Court held that the
Judge did not have absolute immunity notwithstanding the fact Judge’s
holding the Plaintiff in contempt were judicial in nature because the
had no reason to believe to that the Judge could hold him in contempt
domestic problems.In the instant case,
Mason had no reasonable expectation that he could be held in civil
a federal judge for exercising his constitutional and statutory rights
law to ask his
government for public records.If
the orders, (99-14027, (Doc. 201, 246)), in question were violative of
statute, or if Mason had behaved in some illegal manner in
his government, then the Defendants proper remedy would have been to
assistance of some prosecutor.The Court
in Gregory v. Thompson, 500 F.2d 59, 65 (9th Cir. 1974),
held that a judge was not
entitled to absolute immunity because the judge acted like a police
The Judges in this matter acted in
complete and total absence of all jurisdiction.
101” or “Judge 101” requires that a Judge, federal, state, or otherwise
the matter of jurisdiction first.“Federal courts are courts of limited
jurisdiction.They possess only that
power authorized by Constitution and statute, (internal citations
which is not to be expanded by judicial decree.It is to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests upon
asserting jurisdiction."Kokkonenv. GuardianLife Ins 511U.S.375(1994). “[B]efore
decision . . . every federal court operates under an independent
ensure it is presented with the kind of concrete controversy upon which
constitutional grant of authority is based; and this obligation on the
examine its own jurisdiction continues at each stage of the
if no party raises the jurisdictional issue and both parties are
concede it.”Bischoff v.
Osceola County Florida, 222 F.3d 874, 878 (11th Cir.2000).“It is
not proper for federal courts to proceed to a merits question despite
Madison Guaranty Savings & LoanAssociation, 173 F.3d
866; 335 U.S.App.D.C.
327 (C.A.D.C. 1999).In Case No.
repeatedly and incessantly challenged the jurisdiction of the court,
the Court absolutely refused to state where it got the legal authority
the orders in question.See for example,
and note that this list is not collectively exhausted, Case No.
99-14027 see Plaintiff’s motions and responses,
(Doc. #200);(Doc. #239); (Doc. #262);(Doc. #264);(Doc. #284);(Doc.
#509);(Doc. #515);(Doc. #526);(Doc. 554);(Doc. 632, pg.
652);(Doc. 663); (Doc. 735); (Doc. 736); (Doc. 738); (Doc. 783); (Doc.
2-3); (Doc. 810); (Doc. 812); (Doc. 813); (Doc. 817); (Doc. 829), (Doc.
845);and the court’s orders: (Doc.
201);(Doc. 246);(Doc. #279);(Doc. 281);(Doc. #407);(Doc. #514);(Doc.
#524);(Doc. #528);(Doc. #634);(Doc. 673);(Doc. 744);(Doc. 745);(Doc.
791);(Doc. 868);(Doc. 874);(Doc. 882, pgs. 1-2), and
relevant Defendants’ responses and motions, (Doc. 199); (Doc.
199);(Doc. 231);(Doc. 274);(Doc. 275); (Doc. 348);(Doc. 511);(Doc.
639);(Doc. 646);(Doc.690); (Doc. 823);(Doc. 834); (Doc. 838);(Doc.
859).Additionally, in the instant case,
Defendants Graham and Lynch and the Court itself have refused to
address the legality
of the orders in question.See (Doc.
52);(Doc. 56); Objections
To R&R, pgs.
“A judge acts in the
clear absence of all jurisdiction
if the matter upon which he acts is clearly outside the subject matter
jurisdiction of the court over which he presides.”King v. Love, 766 F.2d 962 (6th Cir.
judge is not immune for actions, though
judicial in nature, taken in the complete absence of all jurisdiction.”Mireles v. Waco
at 502 U.S.
12."When a judge knows that he
lacks jurisdiction, or acts in the face of clearly valid statutes or
expressly depriving him of jurisdiction, judicial immunity is lost."King v. Thornburg, 762 F. Supp. 336,
341 (S.D.Ga. 1991)(citing Rankin v. Howard, 633 F.2d 844, 849
1980)). “Where there is clearly no
jurisdiction over the subject-matter any authority exercised is a
authority, and for the exercise of such authority, when the want of
jurisdiction is known to the judge, no excuse is permissible.”Tucker v. Outwater, 118 F.3d 930 (2nd
Cir. 1997)(quoting Bradley).Had
the defendants in this matter done a minimal amount of research or had
verified the law as quoted to them by the plaintiff, the defendants
known that a federal judge simply does not have the legal authority to
plaintiff that he must contact a private attorney before communicating
government.Intuitively, given American
values, such a notion is inane on its face and anathema to everything America
shall correspond only with
Defendants’ counsel including any requests for public records “(DE #246).Congress did not grant the federal judiciary with jurisdiction
administration of the Florida Public Records Act, or Chapter 119,
Statutes.“Courts created by statute
only have such jurisdiction as the statute confers.”Christianson v. Colt Industries Operating
Corp., 486 U.S.
800, 820 (1988).Public
records, under Florida
law, are not any
of the federal government’s business.“The powers not delegated to the United States by the
prohibited by it to the States, are reserved to the States
respectively, or to
the people. “Amendment
X, United States Constitution.As
a result of the Tenth Amendment, Congress
could not grant the federal government jurisdiction over Florida Public
even if wanted to.The Federal Rules of
Civil Procedure do not create federal jurisdiction.In re Infant Formula Antitrust Litigation,
MDL 878 v. Abbott Laboratories, 72 F. 3d 842, 843 (11th
fact that litigants have a case before
the district court is not a license for the district judge to interject
every matter involving the litigants.Graham and Lynch had absolutely no reason to believe that they
stick their noses’ in Marcellus M. Mason, Jr.’s private business with
to his alleged communications with his government regarding public
Court acted in complete violation of all jurisdiction because the
Sorolis, Koji, and HighlandsCounty, lacked
to ask the Court, Graham and Lynch, to grant them the requested
injunctions.The Defendants suffered no
injury as a result of Mason’s alleged requesting of public records
asking for the permission of private for profit attorneys.See Bischoff v. Osceola County Florida,
222 F.3d 874, 884 (11th Cir.2000)(“
plaintiffs must establish that they have
suffered some injury in fact as a result of the defendant's actions”).SeealsoLujan v. Defenders
of Wildlife, 504 U.S.
is absurd to even argue that a public
entity can be damaged by merely complying with the requirements of
that it receive and process public record requests.“[I]f a probate judge, with jurisdiction over
only wills and estates, should try a criminal case, he would be acting
clear absence of jurisdiction and would not be immune from liability
action;”Dykes v. Hosemann, 776
F.2d 942, 947 n. 17 (11th Cir. 1985)(quoting Bradley v. Fisher,
(13 Wall.) 335, 352, 20L.Ed. 646
v. Merckle, 638 F.2d 848 (5th Cir. 1981); Tucker
v. Outwater, 118
F.3d 930 (2nd Cir. 1997)(quoting Bradley).Dykes, which quotes Bradley
v. Fisher, 80 U.S.
(13 Wall.) 335, 352, and its example of the probate judge exceeding his
jurisdiction by trying a criminal case is dispositive and
from the instant case.In the instant
case, the Graham/Lynch duo was given absolutely no authority to
public records under Florida Law.Dykes,
makes abundantly clear that the Graham/Lynch duo clearly acted in
subject matter jurisdiction.
third element in the concept of jurisdiction as used in the context of
immunity necessitates an inquiry into whether the defendant's action is
authorized by anyset of conditions or
circumstances.”Wade v. Bethesda
Hospital, 337 F. Supp. 671, 673
(S.D. OH 1971).See also
Gregory v. Thompson, 500 F.2d 59 n. 2 (9th Cir. 1974).Using this criterion, the Court in Wade
concluded that the defendant Judge did not have absolute immunity
Judge could not order the sterilization of an individual under any set
circumstances.Similarly, in the instant
case, a federal judge can not order Mason to submit his Florida public
records request to private
attorney under any set of circumstances.In a case that is roughly analogous to the instant case, Maestri
Jutkofsky, 860 F.2d 50 (2nd Cir. 1988),
the Court held that the
judge did not have absolute immunity because the judge acted in clear
of all subject matter jurisdiction by causing an arrest of a citizen in
evidence that the Graham/Lynch duo acted in clear violation of all
matter jurisdiction is the behavior of the Defendants themselves in
case.Defendants Graham. Lynch, Sorolis,
and Koji have refused to answer interrogatories with respect to subject
jurisdiction.See (DE #9), (DE
#10), and Plaintiff’s Motion To Compel
Defendants Graham, Lynch, And Sorolis’ Answer To Plaintiff’s First
Interrogatory For Graham, Sorolis, And Lynch And Plaintiff’s Motion For
Sanctions, dated March 7, 2002.
Tenth Amendment precluded the judges in
this matter from having jurisdiction over Mason’s communications with
to Public Records requests under Florida
delegated to the United States by the Constitution, nor prohibited by
it to the
States, are reserved to the States respectively, or to the people. “Amendment
X, United States
right to regulate its own public records predates the adoption of the
Constitution and as a result of this fact the Tenth Amendment precludes
federal government or federal judges from administering Florida public
records.See Cook v. Gralike, 531
U.S. 510, 519
powers “proceed, not from the people of America, but from the people of
several States; and remain, after the adoption of the constitution,
were before…”).“The validity and
conclusiveness of a Florida decree
tested by Florida
law; it can be given no greater force in a federal court than it ought
in the courts of the state by whose authority it was rendered.”Parker Bros. v. Fagan, 68 F.2d 616,
617 (5th Cir. 1934).Congress “has enacted that the state law
shall be the rule of decision in the federal courts.”Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941).The
state of Florida does not require Mason to seek the permission or
consent of a
private for profit attorney prior to making public records request; in
Highlands County had failed to produce public records even if Mason
gain the permission of their private for profit attorneys, Mason could
filed both civil charges and a criminal complaint pursuant to chapter
Florida Statutes no matter what a federal judge says.Defendants’ Graham and Lynch’s orders create
an absurd anomaly in this respect.This
absurd proposition is only made possible by the illegal interference
of usurpation by Graham and Lynch.
Magistrate had jurisdiction to direct that the “Plaintiff shall
with Defendants' counsel including any requests for public records, the
would still be improper because Florida Courts don’t feel they have the
to take such liberties.“We
would be less than candid if we did not
acknowledge that, as the present case demonstrates public agencies are
at a disadvantage, compared to private person’s, when faced with
litigation claims.It is also pertinent
to observe that the wisdom of such a policy resides exclusively within
province of the legislature.”Tober
v. Sanchez, 417 So 2d 1053, 1055 (App. Dist. 3 1982)."[W]e
do not equate the acquisition of public documents under chapter 119
rights of discovery afforded a litigant by judicially-created rules of
procedure”Henderson vs. State Of
Florida, 745 So. 2d 319, 325-6; (Fla.
1999)."Courts cannot judicially create any exceptions, or exclusions
Act."Board of CountyCommissioners
of Palm BeachCounty v. D.B.,784
So. 2d 585, 591 (Fla.
4th DCA 2001).SeealsoWait v. Florida Power and
Light Company, 372 So. 2d 420, 425 (Fla.
find no authority to support the argument that Florida Power &
engaging in litigation before a federal forum, has somehow given up its
independent statutory rights to review public records under chapter
fact that Florida Power & Light simultaneously engaged in
a federal agency does not in any way prevent its use of chapter 119 to
access to public documents.”).The
Federal Rules of Civil Procedure did not give Graham and Lynch the
interfere with Mason’s right to public records under Florida Law.“[T]he
State of Florida
has the right to extend to its citizenry greater protections than those
afforded by the federal constitution.”Adams v. State,
448 So.2d 1201, 1203 n.1 (Fla.App. 3 Dist. 1984)(citing Sambrine v.
State, 386 So.2d 546, 548 (Fla.
1980)). “Within our
federal system the substantive
rights provided by the Federal Constitution define only a minimum.State law may recognize liberty
interests more extensive than those independently protected by the
Constitution.If so, the broader state
protections would define the actual substantive rights possessed by a
living within that State.”Mills
v. Rogers, 457 U.S.
291, 300 (1982).Under
the Florida Constitution, and pursuant to Section 119.01, Fla.Stat.,
has absolute right to request public records from his state government
seeking the permission of private for profit attorneys.See§
119.01, et.seq., Fla.Stat.,
Article 1, Section 24, Fla. Const.
“Government remains the servant of the people, even when
litigating against it."American
Canoe Ass’n Inc. v. City of St. Albans,18
F.Supp. 2d 620, 621 (S.D.W.V.1998).SeealsoCamden
v. State of MD. 910 F.Supp 1115 (D.Md. 1996).“In
giving federal courts `cognizance' of equity suits in cases of
jurisdiction, Congress never gave, nor did the federal courts ever
power to deny substantive rights created by State law or to create
rights denied by State law.”Ortiz
v. Fibreboard Corp., 527 U.S. 815, 845 (1999)(quoting
Guaranty Trust Co.
v. York, 326 U.S. 99, 105 (1945)).Seealso
28 U.S.C. § 2072
rules shall not abridge, enlarge or modify any substantive right”);
International Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503
"are not at liberty to create an exception where Congress has declined
v. Commissioner, 501 U.S.
868, 874 (1991). “It is not the place of the
judiciary to disregard the guidelines set by Congress.”Traficanti v. U.S., 227 F.3d 170, 175 (4th Cir.
2000).See also Kahn v. Shevin, 416 U.S.351, 356 (1974)(“courts do not substitute
their social and economic beliefs for the judgment of legislative
[which] are elected to pass laws.”).
are not immune from prayers for declaratory and injunctive relief.
Even though a
judge maybe immune from an action for money damages, the judge would
immune from an action for equitable relief.”Slavin v. Curry, 574 F.2d 1256, 1264 (5th Cir. 1978).See also
Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986)(“Immunity
does not extend, however, to actions forprospective injunctive relief.”).Mason specifically requested injunctive and declaratory relief.See Complaint, pgs. 16, 17, ¶¶150, 156, 163.
claim of absolute immunity perverts
the doctrine and evinces absurdity.
general principle of the highestimportance to the proper administration of justice that a
officer, in exercising the authority vested in him, [should] be free to
upon his own convictions, without apprehension of personal consequences
himself.”Stump v. Sparkman, 435 U.S.
(1978).If absolute immunity is applied
to this case, then there is nothing that would stop a federal judge
issuing directives that litigants “before it” must drive at a speed
that is ten
miles per hour slower than the posted speed on the highways and roads
punished by the federal court.Along
this same vein and following this same contorted logic, a federal judge
be granted immunity for rendering an order stating that “Plaintiff
fish in a state park on a Saturday.”Why
quit here, why not allow a federal judge immunity for rendering orders
that litigants before shall not spank their kids on Sunday?If absolute immunity is applied in the instant
case, the door would be open to allow a federal judge to do anything he
or promulgate any “legislation” even if such actions circumvent the
will of the
Congress, the Constitution of the United States, Florida
and the Florida Constitution.
Appellees cite several cases in support of
this “inherent authority” theory.ie. Phipps v. Blakeney, 8 F.3d 788
Cir. 1993); Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F. Supp.
1277 (S.D. Fla. 1999); Telectron, Inc. v. Overhead Door Corn.,
F.R.D. 107, 126 (S.D. Fla. 1987); Day v. Allstate Insurance Co.,
F.2d 1110 (5th Cir. 1986); M&M Medical Supplies &
Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1992).These cases are not dispositive for several
reasons.Firstly, these cases deal with
private actors, not the government.Secondly, these cases do not address litigant’s right under
for public records.Thirdly, these cases
don’t address First Amendment rights of non-lawyers.