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CIRCUIT COUNCIL FOR THE FIRST CIRCUIT
IN RE COMPLAINT NO. 243
Selya, Boudin, Stahl, Lynch, Circuit Judges Hornby, Fuste, Wolf, Torres, McAuliffe, District Judges
ORDER Entered: April 8, 1998
Petitioner, a pro se litigant, has filed a petition for review of Chief Judge Torruella's dismissal of his complaint of misconduct filed under 28 U.S.C. § 372(c) against a bankruptcy judge in the First Circuit. Petitioner's original allegations related to a Chapter 11 proceeding on behalf of a company, of which petitioner was president, which managed a low income housing development.
Petitioner alleged that a number of rulings made by the bankruptcy judge, relating to, among other things, the admission or exclusion of certain material evidence and the appointment of a trustee, were motivated by racial bias against the petitioner. The petitioner supported these allegations by stating that several attorneys involved in the matter indicated that the bankruptcy judge is biased against and "dislikes" him. An investigation conducted by the Circuit Executive revealed no evidence of bias. Further, the bankruptcy judge's response to the original complaint and the record itself clearly established that each of the decisions that was allegedly motivated by bias has legal and factual support. These allegations were therefore dismissed as directly related to the merits of a decision or procedural ruling. 28 U.S.C. § 372(c)(3)(A)(ii).
Finally, petitioner asserted that the bankruptcy judge demonstrated extremely poor temperament in handling this matter. The Circuit Executive's investigation revealed that there was no evidence that the judge demonstrated temperament which would amount to a violation of 28 U.S.C. § 372(c). The bankruptcy judge maintained that the transcripts of hearings, the judge's orders, and the memoranda of the judge's decisions all illustrate the fact that throughout the proceedings in this matter the judge's temperament has been quite even. The record, on its face, reveals no evidence to the contrary. Because the weight of the evidence did not support them, the allegations relating to poor temperament were
dismissed as frivolous. 28 U.S.C. § 372(c)(3)(A)(iii). Nevertheless, as the issue of the judge's temperament was raised and investigated. Chief Judge Torruella indicated in his original order an intent to discuss with the judge the importance of positive judicial temperament.
In the petition for review, the petitioner adds the following new allegations:
1) that the bankruptcy judge improperly approved the appointment of the Chapter 11 Trustee, knowing that the Trustee had a conflict of interest in this case; 2) that the bankruptcy judge improperly allowed debtor's counsel's motion to withdraw and; 3) that the bankruptcy judge improperly denied a motion by various creditors to vacate the order confirming the Joint Plan of Reorganization in this case. Each of the new allegations concerns the substance of a judicial ruling and therefore is dismissed as directly related to the merits of a decision or procedural ruling. 28 U.S.C. § 372(c)(3)(A)(ii). Further, petitioner does not substantiate the allegation that the bankruptcy judge was aware of the Trustee's conflict of interest, and the bankruptcy judge indicated that the judge had no knowledge of such a conflict at
"the time of the Trustee's appointment. Therefore, this allegation is also dismissed
'as frivolous. 28 U.S.C. § 372(c)(3)(A)(iii).
Petitioner also restates some of the allegations made in his original complaint, but provides no new evidence supporting the allegations. Consequently, Chief Judge Torruella's dismissal of the allegations as directly related to the merits of a decision or procedural ruling 28 U.S.C. § 372(c)(3)(A)(ii) and as frivolous 28 U.S.C. § 372(c)(3)(A)(iii) is affirmed.
The petition for review is denied.
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