JUDICIAL COUNCIL OF THE SECOND CIRCUIT

Docket No. 04-8514

In re

CHARGE OF JUDICIAL MISCONDUCT

JOHN M. WALKER, JR., Chief Judge:

On April 15, 2004, the Complainant filed a complaint with the Clerk's Office for the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 351 (formerly § 372(c)) ("the Act") and the Rules of the Judicial Council of the Second Circuit Governing Complaints Against Judicial officers (the "Local Rules"), charging a magistrate judge of this Circuit ("the Judge") with misconduct.

Background and Allegations:

The Complainant, the plaintiff in a civil rights action that was referred to the Judge for a report and recommendation, alleges that the Judge improperly failed to recuse himself from the Complainant's case and improperly recommended that his complaint be dismissed. The Complainant alleges that the Judge's report and recommendation unfairly discredited the Complainant in the eyes of the district court judge, created a false impression of the facts of the case, included statements that were false and misleading, and was legally absurd and irrational.

Disposition:

The complaint must be dismissed.

The Complainant is challenging the Judge's actions and decisions in his civil rights proceeding. Direct challenges to the merits of decisions or procedural rulings may not be brought under § 351, however. See 28 U.S.C. § 352(b)(1)(A)(ii) (formerly § 372(c)(3)(A)(ii)); Local Rule 4(c)(2); see also Local Rule l(b) (the Act does not cover "wrong decisions - even very wrong decisions - in the course of hearings, trials, or appeals"). Such challenges must be pursued through normal appellate procedures. See Local Rule i(e) ("The complaint procedure is not intended to provide a means of obtaining a review of a judge's or magistrate judge's decision or ruling in a case. The judicial council of the circuit . . . does not have the power to change a decision or ruling. Only a court can do that.").

The complaint is therefore dismissed. The Clerk is directed to transmit copies of this order to the Complainant and to the Judge.

John M. Walker, Jr.
Chief Judge

Signed: New York, New York
December 21, 2004