United States v. 2009-05-27 | 08-90066 | IN RE COMPLAINT OF JUDICIAL MISCONDUCT | precedential |…

FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT
 IN RE COMPLAINT OF JUDICIAL Nos. 08-90066,
MISCONDUCT 08-90067,
08-90068,
08-90069,
08-90070,
08-90071,
08-90072,
08-90073,
08-90074,
08-90075,
08-90076,
08-90077,
08-90078,
08-90079,
 08-90080,
08-90081,
08-90179,
08-90187,
08-90188,
08-90243,
08-90244,
09-90046,
09-90047
and
09-90050
ORDER

Filed May 27, 2009
6147

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ORDER
KOZINSKI, Chief Judge:
Complainant, a pro se prisoner, filed six misconduct com-
plaints and several supplements against fourteen circuit
judges, five district judges, and three magistrate judges. Com-
plainant filed several civil rights actions and a habeas petition
in district court, and numerous appeals and mandamus peti-
tions relating to those matters. The subject judges were
assigned to those matters.
The Rules for Judicial-Conduct and Judicial-Disability Pro-
ceedings require that judges named in a misconduct complaint
be disqualified from considering the complaint. See Judicial-
Conduct Rule 25(b). But rigid adherence to the disqualifica-
tion requirement is not required where complainant is abusing
the complaint process, for example by filing insubstantial
complaints naming numerous judges. See In re Complaint of
Judicial Misconduct, 2009 WL 1023982 (9th Cir. Jud. Coun-
cil April 15, 2009). When a complainant uses the misconduct
procedure as a vehicle for harassing judges who rule against
him, there is “no unfairness in permitting subject judges, in
these circumstances, to participate” in the review of the com-
plaint. See Commentary on Judicial-Conduct Rule 25.
Complainant scatters exhibit numbers in the left column of
his first complaint, apparently referring to a document rele-
vant to the nearby text. One of complainant’s most recently
filed misconduct complaints is related in part to the court’s
alleged rejection of and failure to consider these exhibits. The
court never received these exhibits nor rejected them. Com-
plainant has offered no evidence that he sent the exhibits.
Complainant’s request that the court send him a copy of the
set of the exhibits is denied because the court does not possess
those documents. Further, because there is no evidence that
misconduct occurred, the charges related to the alleged rejec-
6148 IN RE COMPLAINT OF JUDICIAL MISCONDUCT

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tion of these exhibits must be dismissed. See 28 U.S.C.
§ 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D).
Complainant alleges that the judges made numerous
improper substantive and procedural rulings. In fact, most of
complainant’s charges arise from his indignation over the
judges’ denial of in forma pauperis status or adverse rulings
on other motions in complainant’s various cases. 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);
Judicial-Conduct Rule 11(c)(1)(B). Complainant’s charges
that certain judges should have recused are also dismissed as
merits-related. See Judicial-Conduct Rule 3(h)(3)(A). A mis-
conduct complaint is not a proper vehicle for challenging the
merits of a judge’s rulings. See In re Charge of Judicial Mis-
conduct, 685 F.2d 1226, 1227 (9th Cir. Jud. Council 1982).
Complainant also alleges that the judges were biased
against him due to his race, and favored the state Attorney
General’s office. Complainant hasn’t provided any proof (for
example, names of witnesses, recorded documents or tran-
scripts) to support his allegations of bias. Because there is no
evidence that misconduct occurred, these charges must be dis-
missed. See 28 U.S.C. § 352(b)(1)(A)(iii); Judicial-Conduct
Rule 11(c)(1)(D).
Further, complainant suspects that certain judges conspired
with prison officials to dismiss one of his civil cases for fail-
ure to pay the filing fee after the fee had been debited from
his prison account. A limited inquiry into the district court
and appellate dockets shows that the case proceeded when the
court learned that the filing fee was, in fact, paid. There is no
reason to believe that this was anything other than a mistake,
and complainant provides no evidence that any judge inter-
fered with the prison’s accounting or the docketing of pay-
ment. Because there is no evidence that misconduct occurred,
these charges must be dismissed. See 28 U.S.C.
§ 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D).
6149 IN RE COMPLAINT OF JUDICIAL MISCONDUCT

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Complainant also alleges that certain judges improperly
delayed ruling on various motions. Delay is not cognizable
“unless the allegation concerns an improper motive in delay-
ing a particular decision or habitual delay in a significant
number of unrelated cases.” Judicial-Conduct Rule
3(h)(3)(B). Complainant provides no evidence of improper
motive or habitual delay with respect to any delay charge
here.
To the extent that complainant raises allegations against
court staff, his counsel and prison officials, the charges must
be dismissed because this misconduct complaint procedure
applies only to federal judges. See Judicial-Conduct Rule 4.
Complainant’s request that this court deem null and void all
local rules of the district court in which he has filed his many
cases is not cognizable under the misconduct complaint pro-
cedure and is therefore dismissed. See Judicial-Conduct Rule
3(h).
Complainant’s complaints are obviously frivolous, an
abuse of the complaint procedure, and have caused a consid-
erable waste of judicial resources. Complainant is therefore
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, 552 F.3d 1146, 1148
(9th Cir. Jud. Council 2009). Complainant has thirty-five 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.
6150 IN RE COMPLAINT OF JUDICIAL MISCONDUCT

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