In Re Complaint of Judicial Misconduct ( 2011 )

  •                   FOR PUBLICATION
                  JUDICIAL COUNCIL
                OF THE NINTH CIRCUIT
    IN RE COMPLAINT                            Nos. 10-90018
    OF JUDICIAL MISCONDUCT                              and
                                                  ORDER
                       Filed January 14, 2011
    KOZINSKI, Chief Judge:
       Complainant, a pro se prisoner, alleges that a district judge
    and a magistrate judge “departed from prevailing legal stan-
    dards” and “refused to apply Ninth Circuit and Supreme
    Court case law authorities” when making various substantive
    and procedural rulings in his Bivens action. These charges
    relate to the merits of the judges’ rulings and must be dis-
    missed. See 28 U.S.C. § 352(b)(1)(A)(ii); Judicial-Conduct
    Rule 11(c)(1)(B); In re Charge of Judicial Misconduct, 
    685 F.2d 1226
    , 1227 (9th Cir. Jud. Council 1982).
       Complainant tries to avoid this merits-related bar by citing
    In re Judicial Conduct & Disability, 
    517 F.3d 558
     (U.S. Jud.
    Conference 2008) (“Judicial Conduct”), which recognized
    that a “pattern and practice” of “disregarding prevailing legal
    standards . . . may be misconduct.” Id. at 562. But in order to
    avoid the merits-related bar, a complainant must at a mini-
    mum allege that the rulings in question have been reversed on
    appeal. The Judicial Council is not a court and thus cannot
    determine whether a judge’s rulings are erroneous. See In re
    Judicial Misconduct, 
    579 F.3d 1062
    , 1064 (9th Cir. 2009).
    The Council can only determine whether a series of rulings
    that have been found erroneous by a higher authority consti-
    tutes a willful pattern and practice of disregarding established
    legal norms. The complaint must therefore start by identifying
    rulings that have been reversed or set aside.
       Moreover, a single reversal, or even a handful of reversals,
    doesn’t prove misconduct. See Judicial Conduct, 517 F.3d at
    562. The number of erroneous rulings must be large enough
    that it could constitute a pattern. And the misconduct com-
    plainant must also present “clear and convincing evidence”
    that this series of erroneous rulings reflects the judge’s “virtu-
    ally habitual,” “arbitrary and intentional departure from pre-
    vailing law” based on the judge’s “disagreement with, or
    willful indifference to, that law.” Id. This can generally be
    done by pointing to a particular error the judge continued to
    commit even after having been repeatedly corrected on
       Complainant here hasn’t pointed to even a single decision
    that was reversed on appeal. He thus has come nowhere close
    to alleging a pattern and practice of disregarding the law by
    either judge named in his complaint. These charges must be
    dismissed. See 28 U.S.C. § 352(b)(1)(B).
       Complainant also alleges that the judges issued a “series of
    biased and prejudicial rulings” that were “collectively
    designed to deny [him] meaningful access to their courts,”
    and that the magistrate judge conspired with the defendants in
    his underlying Bivens action. Adverse rulings do not prove
    bias or conspiracy. See In re Complaint of Judicial Miscon-
    583 F.3d 598
    , 598 (9th Cir. 2009). And complainant
    hasn’t provided any other proof to support his allegations of
    bias. See In re Complaint of Judicial Misconduct, 
    569 F.3d 1093
    , 1093 (9th Cir. 2009). These charges must also be dis-
    missed as wholly unsupported. See 28 U.S.C.
    § 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D).
               IN RE COMPLAINT OF JUDICIAL MISCONDUCT         715
       Complainant’s allegation that the judges improperly failed
    to rule on a motion to amend his complaint must be dismissed
    because the magistrate judge in fact ruled on the motion, and
    the district judge ruled on complainant’s motion to reconsider
    the     magistrate     judge’s  order.    See    28     U.S.C.
    § 352(b)(1)(A)(iii), (b)(2).
       Complainant’s charges against court staff must be dis-
    missed because the misconduct procedure applies only to fed-
    eral judges. See Judicial-Conduct Rule 4.