JUDGE DONALD L. GRAHAM: "I CAN CONCOCT A VOID ORDER THAT VIOLATES YOUR DUE PROCESS RIGHTS AND MISSTATES MATERIAL FACTS AND HOLD YOU IN CRIMINAL CONTEMPT !!!"

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

 

This page is being phased out in favor of mmason.freeshell.org/SuaSponte.htm

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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 conceal the misconduct of a judicial miscreant like Judge Donald L. Graham 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.  

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The Eleventh Circuit and Judge Donald L. Graham have used a patently illegal "filing injunction" to gain a conviction for criminal contempt of a wartime U.S. Army veteran that has never been convicted of crime in his life.  They have managed to do this through a series of "unpublished opinions" that turn the "rule of law" on its head, but rather it is the "law of the ruler".   The story is incredible and seemingly fanciful, but it is well documented with actual record documents. 

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FILING INJUNCTION
CASE SUMMARY

LEGAL PROBLEMS ASSOCIATED WITH FILING INJUNCTION

• ISSUED WITHOUT NOTICE AND OPPORTUNITY TO RESPOND
• REFUSED TO ALLOW APPELLATE REVIEW BY DISHONEST AND DIRTY TRICKS
• FAILURE TO IDENTIFY FRIVOLOUS LITIGATION
• LACKED JURISDICTION
• LYING TO PROTECT JUDGE GRAHAM
• JUDGE GRAHAM LIED AND INTENTIONALLY MISSTATED MATERIAL FACTS
• JUDGE GRAHAM ADMITTED THAT A FILING INJUNCTION WAS INAPPROPRIATE
  
  

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SUA SPONTE ISSUED FILING INJUNCTIONS FORMS THE BASIS OF CRIMINAL CONTEMPT

 

The following illegal order, "filing injunction" formed the basis of a criminal contempt conviction:
Filing Injunction or order of September 20, 2001

See PDF version online. 

AUSA,  Robert Waters, who failed in his duty to investigate the matters discussed here, stated in his Information:

See Information, Docket Entry #6. 

Marcellus Mason was convicted of criminal contempt for violating this "filing injunction" or order of September 20, 2001, notwithstanding the following facts:

• The "filing injunction" or order of September 20, 2001 is void and illegal.   See Legal Problems, below.
  
• The Eleventh Circuit have refused to allow Mason the opportunity to appeal this filing injunction on several occasions and for a different reason each time.  See Direct Appeal, Case No. 01-13664, and Mandamus Case No. 01-15754, Case No. 04-11894 [see below] [PDF, 04-11894], 05-10623-I.  The goal posts keep shifting. 
  
• The contempt trial itself was violative of Mason's rights.  The Federal Public Defender filed absolutely no pretrial motions.  Mason was not allowed his sixth amendment right to confront and cross-examine Judge Graham.  Mason did not "file" any documents.  Mason's right to a speedy trial under the sixth amendment was violated.  For a full accounting see Contempt Abuse. 
  

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CASE SUMMARY

Case No. 99-14027 Marcellus M. Mason, Jr. originally filed a lawsuit in the Southern District of Florida bearing Case No.99-14027-CIV-Graham in February 1999.  This case was ultimately assigned to Judge Donald L. Graham.  This case has had multiple appeals and petitions for mandamus associated with it. e.g.. Eleventh Circuit Case Nos. , 01-11305, 01-15754-A,  01-13664, 01-11850 ;  This case has had almost 1000 docket entries on the Pacer System.  See Pacer Docket Sheet.  The Defendant in this case and all other related cases,  the Highlands County Board County Commissioners, is a GOVERNMENT entity.  Highlands County is located Sebring, Florida which is in South Central Florida.  Judge Graham's office is in Miami, Florida, or approximately 160 miles from where Mason resides in Sebring, Florida.  Maria Sorolis [msorolis@anblaw.com] and Brian Koji [bkoji@anblaw.com ]of Allen, Norton & Blue reside and work in Tampa, Florida, or some 90 miles away from Sebring, Florida.  Court papers are filed in Fort Pierce, Florida, or some 75 miles away from Sebring, Florida.  This lawsuit alleges discrimination, among other things, under  Title VII, the ADA, and violations of  §§ 1981, 1983, 1985 against the Highlands County Board County Commissioners and other government defendants and/or their agents.  Maria Sorolis [msorolis@anblaw.com], Allen, Norton & Blue, asked Judge Graham's court for injunctions that would prohibit Marcellus Mason, a non-lawyer, from speaking to his government directly [Highlands County Board of County Commissioners] and prohibit him from making Florida Public records request directly to his government [Highlands County Board of County Commissioners]. On June 19, 2000 and July 25, 2000, Judge Donald L. Graham's Magistrate, Frank Lynch issued two injunctions, (Docket Entry Nos. 201 and 246) "government speaking prohibitions", the Magistrate Judge, Frank Lynch, Jr., issued the following directives:

          

The law clearly prohibits or enjoins a Federal Magistrate from rendering an injunction notwithstanding the obvious First Amendment concerns.  See mmason.freeshell.org/OverRuleFirstAmendment.htm . 

Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court except a motion for injunction relief,…” 28 U.S.C. § 636 (b)(1)(A).

However, Judge Graham, uninhibited by 28 U.S.C. § 636 (b)(1)(A) and the rule of law held that the Magistrate rendering of these injunctions is not clear error.  

On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary Defendants in this action. Upon notice that Plaintiff was violating this order, Defendants filed a Renewed Motion For Preliminary Injunction. On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants' Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. Magistrate Judge Lynch also ordered that Plaintiff shall only correspond with Defendants' counsel.

Plaintiff then moved to rescind the July 25, 2000 order, however, on August 15, 2000, Magistrate Judge Lynch denied Plaintiff's Motion to Rescind. Plaintiff appeals the August 15, 2000 ruling. After careful review of the file and the pertinent portions
of the record, the Court finds that Magistrate Judge Lynch's ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).

See Docket Entry No. 407 dated November 2, 2000.

DISMISSAL AND POST JUDGMENT ACTIONS.  

Judge Graham ultimately dismissed this case on June 20, 2001, not on the merits, but because Marcellus Mason dared to communicate with his government, the Highlands County Board of County Commissioners, directly.  The case was dismissed because alleged out of court communications and emails.  See Banned Communications.  mmason.freeshell.org/badfaith.htm#banned .  

The case was promptly noticed for appeal on June 25, 2001.  See Eleventh Circuit's receipt.  After Judge Graham got tired of inquiries from Marcellus Mason about his legal authority to issue the "government speaking prohibitions", Judge Graham refused to answer the inquiries and then issued the "filing injunction" on September 20, 2001 [Docket Entry No. 878]. 

On September 20, 2001, Judge Graham reaffirmed his prohibition of direct communication with the Government.  

[I]ncluding continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants' employees. Mason, however, ignored the Court's order and continued to contact the Defendants.

Using literal  and mathematical substitution for Judge Graham's order yields the following:

including continual attempts to directly communicate with the [GOVERNMENT] rather their attorneys, the Court enjoined Mason from any further contact with the [GOVERNMENT] or [GOVERNMENT] 'S employees. Mason, however, ignored the Court's order and continued to contact the [GOVERNMENT].

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JUDGE GRAHAM  INTENTIONALLY  MISSTATED MATERIAL FACTS AND LIED IN ORDER TO RENDER THE FILING INJUNCTION

Judge Graham lied about the number of lawsuits that were filed by Mason.  See Litigation Summary for more information about lawsuits filed by Mason.  Mason filed only four lawsuits which were consolidate into one case, 99-14027-CV-Graham.  For the purpose of justifying this injunction, Judge Graham counted the following lawsuits as being "filed": (1)Case No. 00-14202, (2)Case No. 00-14201, (3)Case No. 00-14116, (4)Case No. 01-14074, (5)01-14078, See "filing injunction" pages 1-2.   Judge Graham stated, “Marcellus M. Mason ("Mason") has filed eleven (11)cases and/or counterclaims in this District…”  According to Judge Graham's own definition of “filing”, "A complaint is not considered filed until the filing fee is paid."  See pg. 2 below.

 

See (pdf format), (DE -10) Case No. 00-14201.  See also (DE -10) Case No. 00-14202.  No filing fee was paid in either of the above cases [(1)Case No. 00-14202, (2)Case No. 00-14201, (3)Case No. 00-14116, (4)Case No. 01-14074, (5)01-14078,] because Judge Graham arbitrarily denied Mason the benefit of the in forma pauperis, "IFP", statutes.  In fact, Judge Graham has a long history of arbitrary denials of IFP status.  See Eleventh Circuit and Judge Graham make a mockery of the In Forma Pauperis Statutes.  Using Judge Graham's definition there were only 11 minus 5 or 6 lawsuits “filed.” 

Case No. 00-14240 which Judge Graham also counts, was filed by Highlands County, not Marcellus Mason.  Imagine that!! Now Judge Graham has only 5 lawsuits filed. 

Case No. 01-14230 was filed in state court and removed to the S.D. Fla. by Highlands County after Judge Graham crafted this injunction where they knew the case would be assigned to Judge Graham.  See Notice of Removal. Judge now has only four lawsuits that Mason filed, not the 11 Judge Graham concocted. 

 

JUDGE GRAHAM'S FAILURE TO IDENTIFY FRIVOLOUS LITIGATION
Mason has never filed any lawsuit that was adjudged to be frivolous, nor does Judge Graham identify any lawsuit that was frivolous.  Courts enter filing injunctions to stop the filing of frivolous lawsuits, not meritorious ones.  “Absent extraordinary circumstances, such as a demonstrated history of frivolous and vexatious litigation, or a failure to comply with sanctions imposed for such conduct, a court has no power to prevent a party from filing pleadings, motions or appeals authorized by the Federal Rules of Civil Procedure.”  Richardson Greenshields Securities, Inc v. Lau, 825 F.2d 647, 652 (2nd Cir. 1987).  It is not unlawful under to prosecute a meritorious action.  See Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983).  “Access to the courts is a fundamental tenet of our judicial system; legitimate claims should receive a full and fair hearing no matter how litigious the plaintiff may be.”  In re Oliver, at 682 F.2d 446.  “[A]ffinity for litigation, standing alone, would not provide sufficient justification to issue an injunction.”  Castro v. United States, 775 F.2d 399, 408 (1st Cir. 1985);  In re Oliver, at 682 F.2d 446 (“litigiousness alone would not support an injunction restricting his filing activities.”); Tripati, at 878 F.2d 353(“Litigiousness alone will not support an injunction restricting filing activities.”); Ruderer v. United States, 462 F.2d 897, 899 (8th Cir. 1972); Carter v. Electron, Inc., 452 F. Supp. 944, 990 (S.D. 1977).  “An adequate record for review should include a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed.”  De Long, at 912 F.2d 1148; Cok v. Family Court Of Rhode Island, 985 F.2d 32, 35 (1st Cir.1993)(requiring a sufficiently developed record be presented for review); Tripati, at 878 F.2d 353 (“injunctions are proper where the litigant's abusive and lengthy history is properly set forth.).  Cok, at 985 F.2d 32, 35(holding that it would have been helpful had the court identified what previously filed frivolous cases); Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985)(holding that an injunction’s purpose is to fashion a remedy to stem the flow of frivolous actions);Kondrat v. Byron, 587 F. Supp. 994, 998 (N. D. Ohio 1984)(noting that injunctions are proper when “ the plaintiffs had filed an uniquely large number of frivolous cases”); De Long, at 912 F.2d 1148. 

 

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LEGAL PROBLEMS ASSOCIATED WITH SUA SPONTE ISSUED FILING INJUNCTION

JUDGE GRAHAM HIMSELF ADMITS THAT A "FILING INJUNCTION" WAS INAPPROPRIATE

Highlands County filed a lawsuit against Marcellus Mason, Case No. 00-14240-CV-GRAHAM.  Highlands County specifically asked for the type injunction that Judge Graham concocted on September 20.2001.  However, on February 13, 2001 and January 16, 2001, Judge Graham and his Magistrate stated: “While there are other pending cases between these parties, there is nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look to for justifying injunctive relief.”  See Case No. 00-14240 (DE 27, pg. 3) , (DE 33).  In the period between February 13, 2001 and September 20, 2001, Mason did not file any lawsuit in the S.D. FL.

 

ISSUED WITHOUT NOTICE AND OPPORTUNITY TO RESPOND
Judge Graham proudly exclaims on the very first page of narrative [page 3] of the filing injunction:  "THIS CAUSE came before the Court sua sponte."  The fact the filing injunction was issued without notice and opportunity to respond makes the filing injunction illegal and void.    Sua sponte means on his own or Judge Graham's motion.  Sua Sponte issuance of filing injunctions are patently illegal and void because a party must be given notice and opportunity to respond prior to the issuance of a filing injunction.  In GILBERT LAU v. MARK M. MEDDAUGH, Docket No. 99-9363 Decided: October 05, 2000), U.S. 2nd Circuit Court of Appeals,  the Court stated: ""[t]he unequivocal rule in this circuit is that the district court may not impose a filing injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to be heard."" For more authority rejecting sua sponte issued pre-filing injunctions, see mmason.freeshell.org/RejectSuaSponte.htm .   More importantly,the United States Supreme Court and  the Eleventh Circuit, USCA, Judge Graham's bosses have stated:

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

The United States Supreme Court has stated:

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

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DISHONESTY AND THE ELEVENTH'S CIRCUIT  This pages is being phase out in favor of mmason.freeshell.org/ignore_issue.htm , which better organized and more detailed.  

REFUSED TO ALLOW APPELLATE REVIEW BY DISHONEST AND DIRTY TRICKS
On direct appeal, The Eleventh Circuit Case No. 01-13664-A,  struck Appellant/Plaintiff Marcellus Mason's brief for arguing against the filing injunction or order of September 20, 2001 because the Eleventh Circuit claimed the filing injunction was beyond the scope of appeal.  However, when the Eleventh Circuit rendered their decision on October 16, 2002, it then used this same injunction of September 20, 2001 to affirm Judge Graham and conceal his misconduct.  The filing injunction was needed to justify Judge Graham's Fed.R.Civ.P. Rule 41(b) dismissal of the underlying civil case. 




LACKED JURISDICTION
Judge Graham did not have jurisdiction to enter the order of September 20, 2001 because of the following:

• The filing injunction or order of September 20, 2001 was not a collateral issue and the matter was on appeal since June 25, 2001. 
  
• Judge Graham was required to disqualify due to misconduct and mismanagement long before he rendered the order of September 20, 2001.  See Undermining An Appeal Right.  This misconduct and mismanagement included, but is not limited to the following: (1)refusing and never ruling on a motion for preliminary injunction; (2)Allowing scores of pretrial motions to languish for months without taking any action;(3)Lying and Intentionally misrepresenting the law with respect to 42 U.S.C Section 1981 claims; (4)Falsely completing a Civil Justice Reform Act Report (CJRA); (5)Usurping legal authority by telling Mason he must seek the permission of a private for profit law firm in order to communicate with the government and request Public records under Florida law; (6)criminal abuse of the contempt procedure.
  

COLLATERAL ORDERS ARE MALLEABLE: HAVING IT BOTH WAYS

"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).   In their "unpublished order" of May 20, 2004, Case No. 01-11894, denying mandamus relief to Mason, the Eleventh concurred with the above:

[A]s a general rule, the filing of a notice of appeal divests the district court of jurisdiction over those aspects of the case that are the subject of the appeal.  However, it may not divest the district court of jurisdiction over collateral matters not affecting the questions presented on appeal.

ELEVENTH CIRCUIT'S [CASE NO. 04-1194] MAY 2004 UNPUBLISHED OPINION

Also available in PDF format.

In this same "unpublished order" of May 20, 2004, Case No. 01-11894, the Eleventh Circuit and specifically Judge Ed Carnes and Judge Frank Hull unambiguously assert:

The September 20, 2001 order did not relate to the issue on appeal, but instead enjoined Mason from filing any further pleadings in the district court without permission . Because the order related to collateral issues, the district court had jurisdiction to issue it. 

See page 4. 

In stark contract to this bold assertion made by the Eleventh Circuit on May 20, 2004, they had a different opinion on October 16, 2002 [Direct Appeal, Case No. 01-13664] when they used this same injunction as part of their opinion to affirm Judge Graham.

Moreover, despite the closure of the case by the district court,  Mason's continual filing of motions with the court addressing matters previously settled prompted the district court to prohibit Mason from further filings without explicit permission and initiate criminal contempt proceedings.  Therefore, the record supports the district court's implicit finding that a sanction less than dismissal of the action with prejudice would have had no effect.  See Gratton, 178 F.3d at 1374.

See Opinion, pg.  14.  

This is a clear reference to the filing injunction rendered by Judge Graham on September 20, 2001, or three months after the case was noticed for appeal on June 25, 2001.  Thus it appears that the Eleventh Circuit can have it both ways.  On the one hand, the Eleventh Circuit can say the filing injunction is a collateral issue when it suits their purposes and then make it part of the same appeal and not a collateral issue when it wants to.  Lastly, and even more despicable, the Eleventh Circuit actually struck Mason's brief for arguing against this order and then turned around and used it against him.  See Undermining An Appeal. 

LYING TO PROTECT JUDGE GRAHAM
Someone at the Eleventh Circuit has been willing to lie to protect Judge Graham.  For example, in their May 20, 2004 order, the Eleventh Circuit stated:

Moreover, Mason had an adequate alternative remedy to mandamus relief in that he could have timely appealed the September 20, 2001 order, but did not do so.

See page 4.
This assertion is clearly false as a petition for mandamus submitted to the Eleventh Circuit, Respondents Judge Graham and Highlands County on or about September 29, 2001 [11th Cir. Case No. 01-15754].  The Eleventh Circuit received the mandamus petition on October 1, 2001 or just eleven days after Judge Graham rendered the filing injunction on September 20, 2001.  It simply ignored the petition and refused appellate review.  See No Right to Mandamus Review.  Moreover even though  a direct appeal, Case No. 01-13664, was pending at the time Judge Graham rendered this order on September 20, 2001 and the briefs had not been filed yet, the Eleventh Circuit refused to consolidate the two cases. 


Case No. 05-10623, March 16, 2005 [PDF format]



The Eleventh Circuit's March 16, 2005 "unpublished order" [denying mandamus relief] even contradicted their lie of May 20, 2004 by stating:

"Furthermore, Mason appealed the dismissal of his case as well as the district court's injunction  order September 20, 2001 , which required Mason to seek the court's permission to file any motions in his case, including Rule 60(b) motions."

Additionally, and contrary to their March 16, 2005 "unpublished order "March 16, 2005 "unpublished order" ,the May 20, 2004 Order also states:

Moreover, Mason had an adequate alternative remedy to mandamus relief in that he could have timely appealed the September 20, 2001 order, but did not do so.

In that appeal, Mason included arguments relating to the September 20, 2001 order entered after the notice of appeal was filed. This Court granted, in part, the appellees' motion to strike Mason's brief, holding that the portions of the brief that related to the September 20, 2001 order were beyond the scope of appeal.

It is quite clear that the Eleventh Circuit has no intention of allowing Mason to have appellate review of the illegal and void filing injunction.  The Eleventh Circuit is even willing to lie about the matter.