In Re Complaint of Judicial Misconduct

Opinion

FILED FOR PUBLICATION JAN 05 2009

MOLLY C. DWYER, CLERK JUDICIAL COUNCIL U .S. C O U R T OF APPE ALS

OF THE NINTH CIRCUIT

IN RE COMPLAINT OF Nos. 07-89142, 07-89144, 08-89012, 08-89030, 08-90029, JUDICIAL MISCONDUCT 08-90030, 08-90031, 08-90032, and 08-90033

ORDER

KOZINSKI, Chief Judge:

Five misconduct complaints have been filed against a circuit judge, four

district judges and four magistrate judges. Complainant, a pro se prisoner, filed

several civil rights actions and habeas petitions in district court. The subject

judges were assigned to those matters.

Complainant alleges that the judges made improper substantive and

procedural rulings. These claims relate directly to the merits of the judges’ rulings

and must therefore be dismissed. See 28 U.S.C. § 352(b)(1)(A)(ii); Misconduct

Rule 4(c)(1); Judicial-Conduct Rule 11(c)(1)(B). A misconduct complaint is not a

proper vehicle for challenging the merits of a judge’s rulings. See In re Charge of

Judicial Misconduct, 685 F.2d 1226, 1227 (9th Cir. Jud. Council 1982).

Complainant alleges that the judges were biased and discriminated against page 2

him on the basis of race. Complainant also alleges that the judges conspired

against him. But complainant hasn’t provided any objectively verifiable proof (for

example, names of witnesses, recorded documents or transcripts) to support his

allegations of bias, racism and conspiracy. Because there isn’t sufficient evidence

to raise an inference that misconduct occurred, these charges must be dismissed.

See 28 U.S.C. § 352(b)(1)(A)(iii); Misconduct Rule 4(c)(3); Judicial-Conduct Rule

11(c)(1)(D).

Complainant further alleges that several of the judges improperly delayed

rulings in his cases. Delay is not a proper subject of a misconduct complaint unless

the circumstances are extraordinary, such as “where the delay is habitual, is

improperly motivated or is the product of improper animus or prejudice toward a

particular litigant, or, possibly, where the delay is of such an extraordinary or

egregious character as to constitute a clear dereliction of judicial responsibilities.”

Commentary on Misconduct Rule 1. Such is not the case here.

Complainant’s allegations against court staff must be dismissed because this

complaint procedure applies only to federal judges. See Misconduct Rule 1(d).

Complainant has filed at least sixteen previous misconduct complaints, all of

which have been dismissed because complainant’s allegations were conclusory

and/or related to the merits of the subject judges’ rulings. Complainant is therefore page 3

ordered to show cause why he should not be sanctioned by an order requiring him

to obtain leave before filing any further misconduct complaints. See Judicial-

Conduct Rule 10(a); In re Complaint of Judicial Misconduct, 527 F.3d 792,

796–97 (9th Cir. Jud. Council 2008). Complainant has thirty days from the filing

of this order to file a response, which will be transmitted to the Judicial Council for

its consideration.

DISMISSED and COMPLAINANT ORDERED TO SHOW CAUSE.