FOR PUBLICATION

JUDICIAL COUNCIL

OF THE NINTH CIRCUIT

IN RE COMPLAINT  Nos. 10-90018

OF JUDICIAL MISCONDUCT and  10-90019

ORDER 

Filed January 14, 2011

ORDER

KOZINSKI, Chief Judge: 

Complainant, a pro se prisoner, alleges that a district judge

and a magistrate judge “departed from prevailing legal standards” 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 dismissed. 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 minimum 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).

713
The Council can only determine whether a series of rulings

that have been found erroneous by a higher authority constitutes 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 complainant must also present “clear and convincing evidence”

that this series of erroneous rulings reflects the judge’s “virtually habitual,” “arbitrary and intentional departure from prevailing 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

appeal.

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 Misconduct, 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 dismissed as wholly unsupported. See 28 U.S.C.

§ 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D).

714 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
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 dismissed because the misconduct procedure applies only to federal judges. See Judicial-Conduct Rule 4.

DISMISSED.

IN RE COMPLAINT OF JUDICIAL MISCONDUCT 715