FOR PUBLICATION

JUDICIAL COUNCIL

OF THE NINTH CIRCUIT

IN RE COMPLAINT OF JUDICIAL  No. 07-89012

MISCONDUCT 

ORDER 

Filed December 10, 2008

Before: THOMPSON, THOMAS, GRABER,

McKEOWN, and RAWLINSON, Circuit Judges,

GONZALEZ, LASNIK, STOTLER and WHALEY,

Chief District Judges, and HATTER, District Judge.

Order

Pursuant to Chapter III of the Rules of the Judicial Council

Governing Complaints of Judicial Misconduct or Disability

under 28 U.S.C. § 352(c), complainant has filed a petition for

review of the order of the Chief Judge entered on May 14,

2008, dismissing the complaint against a district judge and a

magistrate judge of this circuit. Complainant supplemented

the petition with a motion to disqualify Judge Sidney R.

Thomas. 

We have carefully reviewed the record and the authorities

cited by the Chief Judge in his order of dismissal. We conclude there is no basis for overturning the order of dismissal,

and affirm the order. The motion to disqualify Judge Thomas

is denied.1

1

Judge Thomas did not participate in the disqualification vote. 

16435
The Chief Judge additionally issued an Order to Show

Cause requiring complainant, an attorney, to explain why

sanctions were not warranted for filing an obviously frivolous

and abusive complaint. As stated in the Order, complainant,

as an attorney, knew or should have known of the standards

for stating a viable claim of judicial misconduct, and was also

well aware that any court filing must be based on good faith

and a proper factual foundation. See Judicial Misconduct

Order No. 07-89012, pp. 7-8. The Order further provided that:

“[F]ailure to observe these basic requirements of

proper pleading may subject a complainant to sanctions. In re Doe, 70 F.3d 56, 60 (8th Cir. 1995); In

re Sassower, 20 F.3d 42, 44 (2d Cir. Jud. Council

1994); In re Complaint of Judicial Misconduct, 2 Cl.

Ct. 255, 258-62 (1983).” 

Id. at p. 8. 

Instead, complainant filed this petition for review restating

his original allegations and inadequately responded to the

show cause order. An attorney filing such a frivolous misconduct complaint diminishes the effectiveness of our system of

justice, and also may have an adverse effect on the random

assignment of judges who may feel compelled to recuse even

in light of unfounded allegations. Under the facts and circumstances of this proceeding, we conclude that both a public reprimand and a pre-filing order are appropriate sanctions. As a

consequence, this published order will constitute a public reprimand of Joseph Nascimento in the form of a published opinion in West’s Federal Reporter. The Clerk shall also serve this

order on the State Bar of Montana, 7 West 6th Avenue, Suite

2B, P.O. Box 577, Helena, MT 59624. 

Further, we hereby direct the Clerk to enter the following

pre-filing review order: 

16436 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
Pre-Filing Review Order

(1) This pre-filing review order shall apply to all misconduct complaints or petitions for review filed by complainant

that relate to this matter. This order shall not apply to appeals

or petitions in which complainant has counsel or where the

district court has expressly certified in its order that the appeal

or petition is not frivolous. 

(2) Any future misconduct complaint filed by complainant shall comply with the requirements of the Rules for

Judicial-Conduct and Judicial-Disability Proceedings, and

shall contain the following sentence in capital letters “THIS

COMPLAINT/PETITION IS FILED SUBJECT TO PREFILING REVIEW ORDER No. 07-89012” in the caption of

the complaint or petition. 

(3) If complainant’s future misconduct complaints are

submitted in compliance with this order, the Clerk shall lodge

the complaint or petition and accompanying documents. The

Clerk shall not file the complaint or petition until the complainant’s submission is reviewed and a determination is

made as to whether it merits further review and should be

filed. 

(4) This pre-filing review order shall remain in effect

until further order of the Judicial Council. Complainant may,

no earlier than November 1, 2010, petition the court to lift this

pre-filing review order, setting forth the reasons why the order

should be lifted. 

Complainant’s failure to comply with the order shall result

in any new complaints that he seeks to file being dismissed

or not being filed and other sanctions being levied, as the

Council may deem appropriate.

IN RE COMPLAINT OF JUDICIAL MISCONDUCT 16437
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© 2008 Thomson Reuters/West.