Us complaint

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

MARCELLUS M. MASON, JR.

Plaintiff,

Vs.

THOMAS K. KAHN,In his official capacity as ClerkU.S. Court of Appeals for the 11th Circuit,

MICHAEL MUKASEY, in his official capacityas Attorney General of the United States,

Defendants

_____________________________________/

COMPLAINT

PRELIMINARY STATEMENT

1. Plaintiff, Marcellus M. Mason Jr. is United States citizen and is concerned that the

propensity of federal judges to protect one of their own is bringing discredit to the Federal

Judiciary. This propensity has created a culture that has made a federal judge virtually

unaccountable for his or her actions.

2. Marcellus M. Mason Jr. is concerned that members of the Eleventh Circuit, U.S. Court of

Appeals have created a two tiered system of justice. This system is composed of

unpublished opinions and published opinions. Published opinions are well reasoned and

are dictated by the facts and the law. Unpublished opinions are an underground body of

law. Unpublished opinions are results of the desire to reach a predetermined outcome,

facts and law notwithstanding. Unpublished opinions are characterized by omissions of

material facts and contorted views of the law. Unpublished opinions very often use

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truisms to suggest to the reader that a particular event has occurred when in fact it has

not.

3. As a result of unpublished opinions, some federal judges are reversed for the exact

same set of pertinent facts that another judge is affirmed for even in the same Circuit and

District Court. While the courts involved in this matter have declined to publish their

decisions, the Plaintiff has shared their decisions on the Internet at:

http://mmason.freeshell.org/ , http://mcneilmason.wordpress.com ;

http://donaldlgraham/blogspot.com ; and http://mmason.freeshell.org/blog/ . Massive

email campaigns that are ongoing and continuing have been instituted that have

informed the entire legal community of the decisions described herein. References to

these websites maybe easily found in routine searches on the major Internet Search

Engines such as Google, Yahoo, MSN, ask.com, and others. These emails have

included almost every federal judge in the entire United States and all former law clerks

to at least five sitting U.S. Supreme Court Justices.

4. Marcellus M. Mason Jr. has been victimized by the unpublished opinions of the Eleventh

Circuit, United States Court of Appeals.

5. A respected jurist, Judge Richard Arnold, warned of the dangers of unpublished opinions.

If, for example, a precedent is cited, and the other side then offers a distinction, andthe judges on the panel cannot think of a good answer to the distinction, butnevertheless, for some extraneous reason, wish to reject it, they can easily do sothrough the device of an abbreviated, unpublished opinion, and no one will ever bethe wiser. (I dont say that judges are actually doing thisonly that the temptationexists.) Or if, after hearing argument, a judge in conference thinks that a certaindecision should be reached, but also believes that the decision is hard to justifyunder the law, he or she can achieve the result, assuming agreement by the othermembers of the panel, by deciding the case in an unpublished opinion and sweepingthe difficulties under the rug. Again, Im not saying that this has ever occurred in anyparticular case, but a system that encourages this sort of behavior, or is at least open

to it, has to be subject to question in any world in which judgesare human beings.

1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, RichardS. Arnold, Copyright 1999 University of Arkansas - Little Rock School of Law ; RichardS. Arnold.Judge Arnold, now deceased, cannot be resting comfortably. In Anastasoff. v.United States, 223 F.3d 898 (8th Cir. 2000), Judge Arnold and his panel declaredunpublished opinions to be unconstitutional. This opinion was subsequently vacated onother grounds, 235 F.3d 1054 (8th Cir. 2000) by an en banc court.

JURISDICTION AND VENUE

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6. This case arises under the United States Constitution and the laws of the United States,

and presents a federal question within this Court's jurisdiction under Article III of the

federal Constitution, 28 U.S.C. Secs. 1331, 1343, and 1361.

7. The Court has the authority to grant declaratory relief pursuant to the Declaratory

Judgment Act, 28 U.S.C. Sec. 2201 et seq.

8. Venue is proper in this district under 28 U.S.C. Sec. 1391(e).

THE PARTIES

9. Plaintiff, MARCELLUS M. MASON, JR. (MASON) is a United States citizen residing in

Sebring, Florida.

10.Defendant, Thomas K. Kahn, Clerk, U.S. Court of Appeals, Eleven Circuit, 56 Forsyth St.

N.W., Atlanta, Georgia 30303.

11. Defendant, Michael Mukasey, U.S. Department of Justice, 950 Pennsylvania Avenue,

NW, Washington, DC 20530-0001, is the Attorney General of the United States.

12.Defendant, Michael Mukasey, has supervisory authority over the United States Attorney,

Southern District of Florida, which included, former U.S. Attorney, Marcos Daniel

Jimenez, S.D. Fla. and AUSA Robert Waters of the Southern District of Florida.

STATEMENT OF FACTS

13.On or about February 4, 1999, Marcellus M. Mason, Jr., hereafter, Mason, filed an

employment discrimination lawsuit against Highlands County Board of County

Commissioners, Heartland Library Cooperative, and other governmental entities and

officials.

14. The case number assigned was 99-14027-CIV.

15.This case was originally assigned to Judge Edward Davis who allowed Mason to

proceed in forma pauperis.

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16.Upon the retirement of Judge Edward Davis, the case was reassigned to Judge Donald

L. Graham.

17.On or about November 24, 1999, Mason filed a motion for a preliminary injunction

pursuant to Title VII. Judge Graham never ruled on this motion during the entire

pendency of this matter.

18.On June 2000, Defendant Highlands County Board of County Commissioners asked for

a preliminary injunction prohibiting direct communication between Mason and the local

government defendants. Within approximately a week this motion was granted by a

Magistrate Judge, Frank Lynch, Jr. On June 19, 2000, the Magistrate rendered the

following order: Plaintiff shall be prohibited from contacting any of the Defendants,

including their supervisory employees and/or the individual Defendants, regarding any

matter related to this case. (D.E. #201).

19. In July 2000, Defendant Highlands County Board of County Commissioners asked for a

preliminary injunction prohibiting direct Florida Public Record requests between Mason

and the local government defendants. On July 25,2000, the Magistrate rendered the

following order: Plaintiff shall correspond only with Defendants' counsel including any

requests for public records. (D.E. #246).

20.During the course of litigation, despite repeated and vehement challenges, both Judge

Graham and his Magistrate declined to state where they got the legal authority to render

these injunctions.

21.On March 13, 2001, Mason filed a petition for mandamus seeking to force Judge

Graham to rule on his motion for a preliminary injunction that had been pending since

November 24, 1999. Additionally, the petition sought to have the preliminary injunctions

of June 19, 2000, (D.E. #201), and July 25, 2000, (D.E. #246), vacated.

22.On or about April 2001, while denying a mandamus petition for mandamus [Case No.

01-11305], among other things, the Eleventh Circuit and Judge Ed Carnes ruled that

Mason did not have a right to have his motion for a preliminary injunction decided and

that they could not review the two injunctions granted to the Defendants because the

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Magistrate had labeled them discovery orders or pretrial discovery issues and the

Eleventh Circuit was without legal authority to review these orders. However, in , Cuban

American Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995), a published

opinion, the Eleventh Circuit held that "where the order has the effect of a preliminary

injunction this court has jurisdiction to review the order and is not bound by the district

court's designation of the order."

23.Defendant Highlands County filed two motions for sanctions in the form of dismissal for

alleged out of court communications between Mason and his local government. (D.E.

#511) and (D.E. #646). These out of court communications were said to be in violation of

the Magistrates injunctions, (D.E. #201), (D.E. #246).

24.On May 13, 2001, Magistrate Frank Lynch Jr., rendered a Report and Recommendation,

R&R, recommending that the Plaintiffs lawsuit be dismissed because of alleged

violations of the injunctions he issued, (D.E. #201), (D.E. #246).

25.On June 20, 2001, Judge Graham granted the defendants sanction motions and

dismissed a lawsuit because of alleged out of court communications between Mason and

his local government.

26.On or about June 25, 2001, Mason filed a notice of appeal in Southern District of Florida

Case No. 99-14027-CIV-Graham/Lynch.

27.On June 27, 2001, Mason filed a motion to proceed on appeal in forma pauperis to the

district court.

28.This appeal was subsequently docketed by the Eleventh Circuit, U.S. Court of Appeal,

hereafter Eleventh Circuit, bearing Case No. 01-13664. This appeal has been referred

to as Eleventh Circuit Case No. 01-13664: The Appeal From Hell located at URL:

http://mcneilmason.wordpress.com/eleventh-circuit-case-no-01-13664-the-appeal-from-

hell/ .

29.On September 20, 2001, Judge Grahams Magistrate, Frank Lynch Jr., denied the

motion to proceed on appeal in forma pauperis. (D.E. #877). This denial does not state

either of the Supreme Courts two reasons for denying an in forma pauperis motion.

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30.During the pendency of the appeal, Case No. 99-14027-CIV-Graham/Lynch, and on

September 20, 2001, Judge Graham rendered a pre-filing injunction, sua sponte. (D.E.

#878). At page 3, this order expressly states: THIS CAUSE came before the Court sua

sponte.

31.Judge Graham did not provide Mason with notice and opportunity to respond to this sua

sponte issued pre-filing injunction prior to its issuance.

32.This sua sponte issued pre-filing injunction also makes a finding of bad-faith. In

Chambers v. Nasco, Inc. 501 U.S. 32, 50 (1991), the Supreme Court stated that a finding

of bad faith requires due process.

33. It is well established that a pre-filing order issued without notice and opportunity to

respond violates due process rights.

34. It is well settled that an order issued in violation of due process is void. Moreover, it is

equally well settled that a void order has no legal effect.

35.Judge Graham has resisted numerous requests to provide Mason with due process after

the issuance of the pre-filing injunction.

36.To date, the Eleventh Circuit has declined to review this sua sponte issue pre-filing

injunction for validity on multiple occasions.

37.On September 26, 2001, Mason submitted a motion to proceed on appeal in forma

pauperis to the Eleventh Circuit.

38.On December 12, 2001, the Eleventh Circuit denied Masons motion to proceed on

appeal in forma pauperis while stating in a mere conclusory fashion 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. 1990) (holding

that right to proceed is not absolute. but rather is left to the sound of the court).

39. InAdkins v. E. I. DuPont de Nemours & Co., Inc., 335 U.S. 331 (1948) , the Supreme

Court stated; We think an affidavit is sufficient which states that one cannot because of

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his poverty "pay or give security for the costs . . . and still be able to provide" himself and

dependents "with the necessities of life."

40.The Eleventh Circuits own published case, Martinez v. Kristi Kleaners Inc., 364 F.3d

1305 (11th Cir. 2004) states: 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." (internal citations omitted). 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.

41.On December 15, 2001, Mason filed a motion for reconsideration and clarification

begging the court to state the basis for its conclusion that the appellant had been

untruthful.

42.On February 7, 2002, the Eleventh Circuit denied the motion and refused to provide an

explanation while stating only: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.

43.On or about February 2002, Mason filed an Initial Brief in the pending direct appeal,

Case No, 01-13664. On March 6, 2002, Judge Susan Black struck Masons brief for

making argument against the sua sponte issued pre-filing injunction of September 2001,

because she claimed it was beyond the scope of appeal. As a result, Mason was

required to go through the expense of filing all new briefs.

44. In March 2002, when the Appellees filed their brief they argued for the same sua sponte

issued pre-filing injunction of September 20, 2001. Mason moved to strike the Appellees

brief for the same reason that the Eleventh Circuit struck his brief. The Eleventh Circuit

granted the motion, but declined to make the Appellees file new briefs. The Eleventh

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Circuit claimed it would not consider the sua sponte issued pre-filing injunction of

September 20, 2001.

45. In October 16, 2002, when the Eleventh Circuit rendered their DO NOT PUBLISH

opinion they included the sua sponte issued pre-filing injunction of September 20, 2001

in order to justify a Rule 41(b), Fed.R.Civ.P. dismissal that they had stricken Masons

brief for arguing because it was beyond the scope of appeal. Moreover, the Eleventh

Circuit affirmed Judge Graham even though Judge Graham failed to make the required

finding that lesser sanctions would not suffice. Judge Grahams colleague, Judge Ursula

Ungaro-Benages, who presumably was not facing the allegations of misconduct,

mismanagement, and abuse that Judge Graham was facing, was reversed on appeal in

World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995),

a published opinion, for not making the explicit finding that lesser sanctions would not

suffice.

46. In its opinion ofOctober 16, 2002, though admittedly briefed, the Eleventh Circuit

declined to review the issue of whether Judge Graham abused his discretion by not

disqualifying. The opinion refuses to address the allegations of misconduct and

mismanagement directed at Judge Graham. The appellate review consisted solely of the

following: Mason also raises issues that relate to non-sanction matters, e.g., the

denial of his motions to disqualify the district court and magistrate judges,

47. In this opinion, though admittedly briefed, the Eleventh Circuit declined to review the

validity of the very injunctions that it claimed Mason violated and justified a Rule 41(b)

dismissal. Mason sought review of the two injunctions referenced above on the appeal,

(D. E. #201) and (D. E. #246). The total review of this issue consisted of the

following:On appeal, Mason argues that the magistrate's discovery orders enjoined him

without legal authority and violated his First Amendment and Florida state-law rights to

petition Florida government officials and to request public records.

48.On November 6, 2002, Mason filed a motion for rehearing specifically enumerating

items the Court failed to consider in its unpublished opinion.

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49.On November 4, 2002, Mason filed a Motion for Publication of Opinion.

50.On January 31, 2003, the Eleventh Circuit simply denied the motion and took no further

action. "The petition(s) for rehearing filed by appellant, Marcellus M. Mason, Jr., is

DENIED." This order was signed by Judge Stanley F. Birch.

51.On 04/10/2003, the Eleventh Circuit denied to theMotion for Publication of Opinion and

declined to share its jurisprudence with the American public. Moreover, the Eleventh

Circuit went on to assert that: The court wont entertain any motion for reconsideration of

this order.

52.This opinion, Case No. 01-13664, is not now, nor has never been released to the Internet

for publication and consumption.

ELEVENTH CIRCUIT CASE NO. 01-15754 MANDAMUS PETITION

53.On or about September 29, 2001, Mason filed a petition for mandamus with the

Eleventh Circuit that was docketed on October 2, 2001 with Case No. 01-15754. This

mandamus petition excoriates Judge Graham and seeks appellate review of Judge

Grahams failure to disqualify. This mandamus petition also sought appellate review of

the sua sponte issued pre-filing injunction of September 20, 2001.

54.The Eleventh Circuit refused to make the Respondents or Judge Graham file briefs

opposing the petition for mandamus.

55.On or about December 5, 2001, the Eleventh Circuit rendered a one page, one

sentence, unpublished Opinion on the petition, Case No. 01-15754. This opinion stated

only: The "petition for writ of mandamus and petition for writ of prohibition" is DENIED.

This was an unpublished opinion.

56.The Eleventh Circuit did not treat the petition for mandamus as a notice of appeal that is

required under the Supreme Courts case Smith v. Barry et al., 502 U.S. 244 (1991). The

Eleventh did not require anyone to file a responsive brief to the mandamus petition.

57.On December 18, 2001, Mason filed a motion for clarification demanding to know the

basis under which the opinion was made.

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58.On January 25, 2002, the Eleventh Circuit denied a motion for clarification.

DC Case No. 99-14027, ELEVENTH CIRCUIT CASE NO. 02-10868

59. On July 23, 2001, Defendant Highlands County Board of County Commissioners and

Heartland Library submitted a motion for attorneys fees. (D.E. #800).

60.On July 31, 2001, Mason filed a brief opposing the motion for attorneys fees.

61.On October 4, 2001, Magistrate Frank J. Lynch rendered a REPORT AND

RECOMMENDATIONS, R&R, recommending attorneys fees of $200,000 be awarded

against Mason. In his R&R, the Magistrate acknowledges that the Supreme Courts

case Christiansburg Garment Company v. Equal Employment Opportunity Commission,

434 U.S. 412 (1978) is controlling with respect to the award of attorneys fees. In this

R&R, the Magistrate expressly states that he was not going to comply with

Christiansburg: This takes the case beyond the analysis of frivolity. He then goes on to

say that he was going to use the sua sponte issued pre-filing injunction to justify his

decision to award $200,000 in attorneys fees.

62.The R&R does no analysis of the claims to see if a prima facie case had been

established. The Magistrate, in a mere conclusory fashion, simply asserts; The Plaintiff

has failed to make out a prima facie case. Additionally, the Magistrate also fails to

mention that the Plaintiffs claims had survived a barrage of attacks and motions to

dismiss.

63.Mason vehemently objected to the Report and Recommendation. (D.E. #893). Masons

objections excoriates the Magistrate, Frank Lynch, Jr. and Judge Donald L. Graham for

reckless behavior. Judge Graham withheld Masons objections to the R&R in his office

until he felt like having it filed.

64. Judge Graham accepted the Magistrates R&R without addressing any of the objections

Mason made. Judge Grahams order adopting the R&R was docketed at (D.E. #892)

which is a lower number than Masons objections.

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65.On April 24, 2002, Mason filed a motion to proceed in forma pauperis with the Eleventh

Circuit to contest the award of $200,000 in legal fees.

66.On August 23, 2002, the Eleventh Circuit denied Masons motion to proceed on appeal

in forma pauperis by stating only the following mere conclusory statement: 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).

67. In Neitzke v. Williams, 490 U.S. 319, 326-28 (1989) and Denton v. Hernandez, 504 U.S.

25, 33 (1992), the United States Supreme Court has said that in forma pauperis motion

could only be denied if the allegation of poverty is untrue or the action is frivolous. [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 at

504 U.S. 25, 26.

68.On August 29, 2002, Mason filed a Motion for Clarification seeking to know the basis for

which the Court concluded it would be frivolous to file an appeal opposing an attorneys

fees award of $200,000.

69.On August 30, 2002, Mason attempted to consolidate the appeal with an already

pending appeal, Case No. 01-13364 that underlied the motion for attorneys fees .

70.On September 19, 2002, the Eleventh Circuit denied Masons motion to consolidate

appeals.

71.On October 17, 2002, the Eleventh Circuit denied Masons Motion for Clarification

seeking to know the factual basis for the courts mere conclusory assertion that filing an

appeal of a $200,000 attorneys fees award would be frivolous.

CRIMINAL CONTEMPT, CASE NO. 02-14020

72.On December 3, 2002, the U.S. Attorney, Marcos Daniel Jimenez, S.D. Fla. and AUSA

Robert Waters, filed an information for criminal contempt based solely on the previously

mentioned sua sponte issued pre-filing injunction of September 20, 2001. Specifically, in

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pertinent part, the information states that Marcellus Mason: did willfully and knowingly

disobey and resist a lawful order of a Court of the United States , that is, the order issued

by the Honorable Donald L . Graham , United States District Judge, on September 20,

2001,.. (D.E. #6). This whole matter has been referred to as Eleventh Circuit Sits Idly

By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A

Mans Life at URL: http://mcneilmason.wordpress.com/eleventh-circuit-sits-idly-by-while-

a-clearly-void-sua-sponte-issued-pre-filing-injunction-wreaks-havoc-on-a-mans-life/ .

73.On the date the information was filed, the U.S. Attorney knew or or should have known

that the sua sponte issued pre-filing injunction of September 20, 2001 was issued without

the required due process.

74. The information claimed that 18 U.S.C. 401(3) was violated. 18 U.S.C. 401(3)

expressly requires that a valid order be violated.

75.A void order is not a valid order by definition. The U.S. attorney has a duty to insure

that the jurisdiction of the court is invoked with a valid order.

76. The U.S, Department of Justice is not the personal attorney of Judge Graham and has

no legal obligation to prosecute a contempt case merely because a judge wishes it to be

so. The USDOJ could have and should have declined to prosecute this matter.

77.On December 3, 2002,the U.S. Attorney, Marcos Daniel Jimenez, S.D. Fla. and AUSA

Robert Waters, knew that the Eleventh Circuit had refused to review the sua sponte

issued pre-filing injunction for validity on at least two occasions because this information

was provided to them in a Motion To Dismiss.

78.Even though the sua sponte issued pre-filing injunction of September 20, 2001,was

challenged on multiple occasions by Mason, the U.S. Attorney has failed to state why the

sua sponte issued pre-filing injunction of September 20, 2001 was not void.

79.The apparent argument of the Government is that a void order maybe bootstrapped by a

later filed criminal contempt complaint. It was well settled law on the day the information

was filed that a void order is a legal nullity from its inception and as such cannot form the

basis of a criminal contempt complaint.

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80.As a direct result of the conviction for criminal contempt wrongly visited upon Mason he

spent 41 days in jail; 3 years supervised release probation, 5 years sentenced; suffered

needless and unwanted compulsory mental health counseling; Mason was needlessly

restricted to travel in the Southern District of Florida; Masons right of association with

known criminals was abridged; Masons right to own a gun was abridged;A special

condition that precluded Masons use of the Internet and working in his chose field of

expertise. This is a really pernicious punishment as Mason made his living as a MCSE,

Microsoft Certified System Engineer, CNE, Certified Novell Engineer working on

computer networking and internetworking systems;This matter has terrorized both

Mason and his children.

D.C Case No. 01-14201-CV-Graham, Eleventh Circuit Case No. No. 00-16512

81.Mason filed a lawsuit and sought to proceed in forma pauperis in S.D. Fla. Case No. 01-

14201-CV-Graham. Judge Donald L. Graham denied the in forma pauperis motion

without stating a reason. Judge Graham was affirmed on appeal by the Eleventh Circuit,

U,S Court of Appeal, Case No. 01-16515, in an unpublished opinion because Mason did

not pay the filing fee as ordered by Judge Graham. Judge Daniel T.K. Hurley denied in

forma pauperis without stating a reason, but was reversed on appeal in Martinez v. Kristi

Kleaners, Inc. 364 F.3d 1305 (11th Cir. 2004), a published opinion.

DC Case No. 02-14049, Eleventh Circuit Case No. 02-13418

82.Mason filed a lawsuit against U.S. District Judge Donald L. Graham, U.S. Magistrate

Judge Frank Lynch, Jr., and Highlands County Board of County Commissioners in

District Court Case No. 02-14049. Mason filed suit against Judge Graham and Judge

Lynch for issuing the orders that he alleged violated his first amendment rights in Case

No. 99-14027, (D.E. #201), (D.E. #246). Mason argued that Judge Graham and Judge

Lynch did not have absolute immunity because: (1)These acts were in complete violation

of jurisdiction;(2)These acts were not judicial in nature, but were in fact legislative.

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83.Mason filed suit against, Highlands County Board of County Commissioners, for a failure

to hire claim. Mason applied for a job as a Budget Technician in November 1999. The

EEOC issued the Notice of Right To Sue on March 30, 2000, # 150 A0 1181. See

Complaint, (DE #1). The District Court asserted that res judicata was applicable in this

case because of a prior case, 99-14027-CIV, an unemployment termination lawsuit.

However, as fully set forth above, the prior lawsuit was filed on or about February 4,

1999 for a termination that occurred in November 1998.

84.Mason filed an appeal of the dismissal of a lawsuit against Judge Donald L. Graham and

Magistrate Frank Lynch, Jr. in Eleventh Circuit Case No. 13418. In a mere conclusory

fashion, the unpublished opinion just asserted that the judges were entitled to absolute

immunity. The opinion does not state the acts that judges were given immunity for even

though Mason argued in his brief that neither judge was not entitled to immunity because

they had not acted in a judicial capacity and had acted in clear violation of jurisdiction.

85.The Eleventh Circuit affirmed the dismissal Of Masons failure to hire against Highlands

County due to res judicata without mentioning the specifics of the two lawsuits and the

dates the causes of actions accrued. There is no mention of when the two causes of

action arose in the unpublished opinion. In a published opinion, Pleming v. Universal-

Rundle Corp., 142 F.3d 1354 (11th Cir. 1998), U.S. Dist. Judge Marvin H. Shoob,

Northern District of Georgia, was reversed on appeal for the same set of facts that Judge

Graham was affirmed for. In Pleming, the court held that, where as here, the second

cause of action arose after the prior lawsuit is filed, res judicata could not be applied to a

cause of action that did not even exist at the time of filing of the prior lawsuit.

Eleventh Circuit Case No. 04-11894

86.On or about February 13, 2004, among other things, Mason filed a petition for

mandamus seeking appellate review of whether Judge Graham had improperly failed to

disqualify. The Eleventh Circuit was briefed on this matter in the direct appeal, Case No.

01-13664, however as stated above the Eleventh Circuit declined to review this issue.

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Mason also sought appellate review of the sua sponte issued filing pre-filing injunction of

September 20, 2001. This petition was filed in forma pauperis.

87.On May 20, 2004, the Eleventh Circuit rendered an opinion and made material

misrepresentations of facts that are clearly contradicted by the record. This opinion

states that Mason only stated two reasons to support Judge Grahams disqualification.

The opinion states that Mason sought the disqualification of Judge Graham because:

Mason merely asserts that Judge Graham was not impartial because (1) he allowed

many of Mason's motions to languish, and (2) would not let Mason file a 1981 claim,

but did let another plaintiff with similar claims do so. These statements are inaccurate for

at least two reasons. Firstly, Mason sought Judge Grahams disqualification because

Judge Graham lied by intentionally misrepresenting the law. Mason also sought Judge

Grahams disqualification because Judge Graham never ruled on a motion for a

preliminary injunction that had been pending from November 24, 1999 until the case was

closed on June 20, 2001. Mason sought Judge Grahams disqualification because

Judge Graham usurped legal authority by stating that it was not clear error for a federal

magistrate to render an injunction prohibiting direct communication between Mason and

the local government, Highlands County Board of County Commissioners. Mason

sought disqualification of Judge Graham because alleged that Judge Graham did not

have the legal authority to issue any order with respect to the Florida Public Records Act.

Lastly, the Eleventh Circuit misstated a material fact that is directly contradicted by the

record with respect to respect to Masons attempt at appellate review of the sua sponte

issued pre-filing injunction of September 20, 2001.

88. In this same opinion the Eleventh Circuit asserts: 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. This assertion is clearly contradicted by

the record. Firstly, as stated above, Mason filed a petition for mandamus on October 2,

2001, Case No. 01-15754. Secondly, in the direct appeal, Case No. 01-13664, the

Eleventh Circuit struck Masons brief for arguing against the sua sponte issued pre-filing

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injunction of September 20, 2001 because they claimed it was beyond the scope of

appeal, however, when the Eleventh Circuit reached its opinion it then used this same

order to Judge Graham.

Eleventh Circuit Case No. 05-10623

89.On March 16, 2005, Case No. 05-10623, the Eleventh Circuit rendered an opinion, and

made material misrepresentations of facts that are clearly contradicted by the record.

This opinion asserts that Mason had sought appellate review of Judge Grahams failure

to disqualify, however, it fails to state that the Eleventh Circuit declined to review this

issue as stated above in Case No. 01-13664 and 01-15754.

90.Secondly in this unpublished opinion, the Eleventh Circuit asserted the following:

Furthermore, Mason appealed the dismissal of his case as well as the district courts

injunction order of September of 20, 2001... This statement is directly contradicted by

the Eleventh Circuits prior assertion of May 20, 2004, Case No. 04-11894, which stated:

Moreover, Mason had an adequate remedy to mandamus relief in that he could have

timely appealed the September 20, 2001, but did not do so. More importantly, this

statement is contradicted by the record as the Eleventh Circuit declined to review this

issue as stated above in Case No. 01-13664 and 01-15754.

91. The Eleventh Circuit has mocked Mason, the rule of law, U.S. Constitution, the Congress

and the United States Supreme Court.

CAUSES OF ACTION

First Cause of Action

Violation of the Due Process Clause of the

Fifth Amendment of the United States Constitution

92.PLAINTIFF incorporates by reference the allegations in Paragraphs 1-52, 82-85,

above.

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93.The unpublished opinion is in violation of the Due Process Clause of the Fifth

Amendment because it is arbitrary and capricious, being unpublished, and thus

provides no way for ordinary people or legal scholars to conclusively determine what

really occurred in appeal. Pertinent issues are not discussed. Material facts are

omitted. The law applied to the case has nothing to do with the facts of the instant

case. Unpublished opinions are virtually secret because no one knows of its

existence except the parties. This appeal was never released to the Internet for

public consumption and scrutiny.

94.An unpublished opinion is void for vagueness on its face, because people are denied

access to its content. Because the unpublished opinion omits material facts and is

results oriented, people have no notice as to what is required to comply with it.

Similarly, such a scheme vests standardless discretion in the hands of its enforcers,

because the legal authority for the scheme is virtually secret.

95. Federal Judges have unfettered control over the facts that are printed in their

opinions and unfettered discretion as to whether the opinion is published. Under

current law, there is no right to have opinions published.

96. Mason was denied the opportunity to contest the validity of the sua sponte issued

pre-filing injunction of September 20, 2001 that the Eleventh Circuit used against him

to affirm Judge Graham.

97. Masons due process rights was violated because the Eleventh Circuit failed to

perform as a neutral arbiter in this matter.

98.WHEREFORE, and based upon the foregoing, Plaintiff requests that unpublished

opinions be declared unconstitutional.

Second Cause of Action

Violation Of Sixth Amendment of the United States Constitution

Right to Fair Trial

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99.PLAINTIFF incorporates by reference the allegations in Paragraphs 1-52, 82-

85,above.

100.The unpublished opinion denied Mason the opportunity to confront evidence against

him.

101.Mason was denied review for validity of the very orders, (D.E. #201)(D.E. #246) that the

Eleventh Circuit claimed Mason violated.

102.Mason was denied the opportunity to contest the validity of the sua sponte issued pre-

filing injunction of September 20, 2001 that the Eleventh Circuit used against him to

affirm Judge Graham.

103.Mason was denied appellate review of whether in fact Judge Graham should have

disqualified.

104.Masons right to a fair trial was violated because the Eleventh Circuit failed to perform

as a neutral arbiter in this matter.

105.Mason was denied meaningful appellate review in this matter.



Third Cause of Action

Violation of the Right to Equal Protection in Violation of

the Fifth Amendment of the United States Constitution

107.PLAINTIFF incorporates by reference the allegations in Paragraphs 1-52, 82-

85,above.

108.Unpublished opinions unconstitutionally burdens the right for equal protection of all

citizens who seek the benefits of the rule of law as set forth in published opinions, by

creating an underground body of law that does not comport to the rule of law as set

forth in published opinions.



Fourth Cause of Action

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Violation of the Due Process Clause of the

Fifth Amendment of the United States Constitution

110.PLAINTIFF incorporates by reference the allegations in Paragraphs 53-58 above.

111.The unpublished opinion is in violation of the Due Process Clause of the Fifth

Amendment because it is arbitrary and capricious, being unpublished, and thus

provides no way for ordinary people or legal scholars to conclusively determine what

really occurred in appeal. Pertinent issues are not discussed. Material facts are

omitted. The law applied to the case has nothing to do with the facts of the instant

case. Unpublished opinions are virtually secret because no one knows of its existence

except the parties. This appeal was never released to the Internet for public

consumption and scrutiny.

112.An unpublished opinion is void for vagueness on its face, because people are denied

access to its content. Because the unpublished opinion omits material facts and is

results oriented, people have no notice as to what is required to comply with it.

Similarly, such a scheme vests standardless discretion in the hands of its enforcers,

because the legal authority for the scheme is virtually secret.

113.Federal Judges have unfettered control over the facts that are printed in their opinions

and unfettered discretion as to whether the opinion is published. Under current law,

there is no right to have opinions published.




115.Masons due process rights were violated because the Eleventh Circuit failed to

perform as a neutral arbiter in this matter.



Fifth Cause of Action

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Violation Of Sixth Amendment of the United States Constitution

Right to Fair Trial

117.PLAINTIFF incorporates by reference the allegations in Paragraphs 53-58, above.

118.The unpublished opinion denied Mason the opportunity to confront evidence against

him.

119.Mason was denied review for validity of the very orders, (D.E. #201)(D.E. #246) that

the Eleventh Circuit claimed Mason violated.




121.Mason was denied appellate review of whether in fact Judge Graham should have

disqualified.

122.Masons right to a fair trial was violated because the Eleventh Circuit failed to perform

as a neutral arbiter in this matter. The Eleventh Circuit failed to require either the

respondents or Judge Graham to file briefs.

123.The Eleventh Circuit failed to construe the Petition for Mandamus as a notice of appeal

as required by the Supreme Court.

124.Mason was denied meaningful appellate review in this matter.



Sixth Cause of Action

Violation of the Right to Equal Protection in Violation of

the Fifth Amendment of the United States Constitution

126.PLAINTIFF incorporates by reference the allegations in Paragraphs 53-58,above.

127.Unpublished opinions unconstitutionally burdens the right for equal protection of all

citizens who seek the benefits of the rule of law as set forth in published opinions, by

creating an underground body of law that does not comport to the rule of law as set

forth in published opinions.

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Seventh Cause of Action

Violation Of Fifth Amendment of the United States Constitution

Due Process Clause


130.The sua sponte issued pre-filing injunction of September 20, 2001 violated Masons

due process rights to access to the courts because the order without notice and

opportunity to respond.

131.The sua sponte issued pre-filing injunction of September 20, 2001 further violated

Masons due process rights to access because the order made a finding of bad-faith

without notice and opportunity to respond.

132.WHEREFORE, and based upon the foregoing Mason requests that the sua sponte

issued pre-filing injunction of September 20, 2001 be declared inconsistent with due

process, and hence void.

Eighth Cause of Action

Violation Of Constitutional Right Of Access to the Courts


134.The Eleventh Circuit arbitrarily and capriciously denied an application to proceed on

appeal in forma pauperis in violation of the Supreme Courts standard by making a

mere conclusory allegation that Mason has been untruthful in his application while

steadfastly refusing to offer a scintilla of proof.

135.Wherefore, and based upon the foregoing, Plaintiffs requests that this court declare

that IFP denial was not lawful.

Ninth Cause of Action

Violation Of Fifth Amendment of the United States Constitution

Due Process Clause

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137.Masons right of due process was violated when Judge Graham and his Magistrate

expressly acknowledged that they were bound by Christiansburg Garment Company v.

Equal Employment Opportunity Commission, 434 U.S. 412 (1978), but chose to ignore

it and use the sua sponte issued pre-filing injunction of September 20, 2001 against

Mason. As stated above, Mason has was denied the opportunity due process with

respect to this order.

138.WHEREFORE, and based upon the foregoing, Plaintiff requests that the judgment of

attorneys fees in the amount of $200,000 be vacated because it relies upon a sua

sponte issued pre-filing injunction issued in violation of due process.

Tenth Cause of Action

Malicious Prosecution


140.As fully set forth above, PLAINTIFF asserts a claim of malicious prosecution against

the Defendant, MICHAEL MUKASEY because the U.S. Attorney, Marcos Daniel

Jimenez, S.D. Fla. and AUSA Robert Waters instituted a criminal action, criminal

contempt, against the Plaintiff in this matter. This matter will terminate successfully

when this court makes the declaration as requested that the sua sponte issued pre-

filing injunction of September 20, 2001 is void because it is was issued inconsistent with

due process. There was no probable cause in this matter because the Government

knew or should have known that a criminal contempt complaint can not be based upon

a void order as the statute specifically calls for a valid order. There was actual malice

and malice per se as the government proceeded with an action with full knowledge that

it lacked a substantial legal basis. As fully set forth above, Plaintiff has suffered greatly

at the powerful hands of the United States Government.

141.Wherefore, Plaintiff, Marcellus M. Mason, Jr., demands judgment against MICHAEL

MUKASEY for compensatory damages, punitive damages, interest, attorneys fees,

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costs and such other relief as this deems appropriate. MASON further demands trial by

jury.

Eleventh Cause of Action

Abuse of Process


143.The U.S. Government invoked the jurisdiction of the court and initiated a criminal

contempt complaint for some purpose other than a lawful purpose. It is a per se abuse

of process to invoke the criminal contempt procedure based upon an order that was

known to be void and without legal effect.

144.While the process was pending, Robert Waters, in three way conversation offered to

drop the criminal contempt complaint, if Mason would agree to dismiss the lawsuit filed

against Judge Graham.

145.Additionally, after the criminal contempt procedure was invoked the Government used

it to intimidate Mason so as to stop Mason from criticizing Judge Graham on the

Internet and email correspondence.

146.The criminal contempt procedure was used to control Mason as it had been placed in

suspense for several months with no end date.

147.Wherefore, Plaintiff, Marcellus M. Mason, Jr., demands judgment against MICHAEL

MUKASEY for compensatory damages, punitive damages, interest, attorneys fees,

costs and such other relief as this deems appropriate. MASON further demands trial by

jury.

Twelfth Cause of Action

Breach of Contract


149.In consideration for receiving Masons filing fees, Defendant, Thomas K. Kahn,

promised to see that Mason got meaningful appellate review in Case No. 01-13664. As

fully set forth above, Mason did not receive meaningful appellate review as required by

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law. It is inequitable that Mason should have to pay for the type of jurisprudence that is

described in this matter.

150.Mason demands specific performance of the contract that THOMAS K. KAHN made to

Mason that he would receive meaningful appellate review. Mason demands meaningful

appellate review forthwith. In the alternative, Mason demands:

151. Plaintiff, Marcellus M. Mason, Jr., demands judgment against THOMAS K. KAHN, for

a refund of filing fees damages, interest, attorneys fees, costs and such other relief as

this deems appropriate. MASON further demands trial by jury.

Thirteenth Cause of Action

Breach of Contract



promised to see that Mason got meaningful appellate review in Case No. 01-15754.. As






appellate review forth with. In the alternative, Mason demands:

155.Plaintiff, Marcellus M. Mason, Jr., demands judgment against THOMAS K. KAHN, for a

refund of filing fees damages, interest, attorneys fees, costs and such other relief as


Fourteenth Cause of Action

Breach of Contract



promised to see that Mason got meaningful appellate review in Case No. 02-13418. As

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appellate review forthwith. In the alternative, Mason demands:

159.Plaintiff, Marcellus M. Mason, Jr., demands judgment against THOMAS K. KAHN, for a

refund of filing fees damages, interest, attorneys fees, costs and such other relief as


Additional Relief Sought

160.Declare that the orders in issued in Case No. 99-14027-CIV, (D.E. #201), (D.E. #246)

are unconstitutional.

161.Declare that the stated reasons for denials of IFP, in forma pauperis are not supported

by the facts or applicable law.

162.Award Plaintiff costs and fees pursuant to applicable statutes.

163.Grant Plaintiff such other and further relief as the Court deems just and proper.

Dated: June 12, 2008Marcellus Mason, Plaintiff214 Atterberry DriveSebring, FL 33870

Copies of this Complaint are being made available on the Interenet at:

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http://mmason.freeshell.org/MyBriefs/Us_complaint.doc , Microsoft word format;

http://mmason.freeshell.org/MyBriefs/Us_complaint.htm, html format.

Us complaint

Documents

Transcript of Us complaint