Opinion
No. C-01-0578 VRW
February 23, 2001
ORDER
On February 5, 2001, plaintiff Stephen Fisher, a pro se litigant, filed a complaint in this court and paid the appropriate filing fee. Compl (Doc #1). Plaintiff filed an amended complaint on February 12, 2001. FAC (Doc #3). Plaintiff's FAC states that defendants, fourteen Ninth Circuit appellate and district court judges, violated plaintiff's due process, equal protection and other civil rights by dismissing a complaint of judicial misconduct that he had filed with the Judicial Council in accordance with 28 U.S.C. § 372(c). See FAC (Doc #3), Exh D. Plaintiff seeks compensatory damages from defendants in excess of $1,000,000 under three causes of action: (1) negligence, (2) intentional infliction of emotional distress and (3) obstruction of justice. Id ¶¶ 38-100. For the reasons set forth below, the court DISMISSES plaintiff's FAC pursuant to 28 U.S.C. § 1915(e)(2).
I
As a threshold matter, the court addresses whether federal subject matter jurisdiction is present in this case. Plaintiff asserts that federal jurisdiction exists under both diversity and federal question jurisdiction. FAC (Doc #3) ¶¶ 4-5. Because plaintiff's FAC states that he is a citizen of California and some of the defendants are likewise domiciled in California, diversity jurisdiction does not exist. 28 U.S.C. § 1332(a).
With respect to federal question jurisdiction, plaintiff's FAC does not explicitly plead claims "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Hence, federal question jurisdiction is arguably lacking as well. Pursuant to FRCP 8(f), however, the court engages in a liberal reading of the FAC. In several paragraphs, plaintiff alleges that the actions of defendants violated his due process, equal protection and other civil rights. See, e.g., FAC (Doc #3) ¶¶ 27, 45, 58, 60 and 81. The court construes these allegations as an attempt to assert a claim under 42 U.S.C. § 1983. See Kerr-McGee Chemical Corp v. Illinois, 459 U.S. 1049, 1050 (1982) ("If a federal claim is presented by the complaint, there is federal question jurisdiction even if the complaint is phrased in state law terms * * *."). Accordingly, to the extent plaintiff attempts to assert a claim under section 1983, the court finds that federal jurisdiction exists under 28 U.S.C. § 1331.
II
Turning to the substance of the FAC, plaintiff essentially claims that his rights were violated by defendant Judge Hug's decision to dismiss his earlier complaint of judicial misconduct as well as some of the remaining defendant judges' decision to affirm that dismissal. See FAC (Doc #3), Exhs E-G. Plaintiff also attempts to plead a claim for obstruction of justice. FAC (Doc #3) ¶¶ 82-100. Such allegations, however, fail to state claims on which relief may be granted.
A
With respect to the obstruction of justice claim, the court concludes that it must be dismissed. Although plaintiff does not reference the law under which he relies, 18 U.S.C. § 1501, et seq, criminalizes obstruction of justice. Even assuming plaintiff's allegations are true, however, these federal statutes do not confer substantive rights on which plaintiff may base this lawsuit. Moser v. Exeter Township Borough Council Members, 1998 WL 575109 n1 (ED Pa); see also Cort v. Ash, 422 U.S. 66, 79 (1975) (no private right of action exists under criminal statutes unless there is a clear statutory basis for such an inference). Accordingly, to the extent plaintiff attempts to state a claim for obstruction of justice, it is hereby dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii).
B
To state a claim under section 1983, plaintiff must allege two elements: (1) violation of his rights secured by the Constitution or laws of the United States and (2) the alleged deprivation of his rights was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Assuming the facts in the FAC to be true, no violation of plaintiff's rights has occurred. Under 28 U.S.C. § 372(c),
[a]ny person alleging that a * * * judge, or a magistrate, has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a judge or magistrate is unable to discharge all the duties of office by reason of mental or physical disability, may file with the clerk of the court of appeals for the circuit a written complaint stating a brief statement of the facts constituting such conduct.
28 U.S.C. § 1372(c)(1). Upon receiving such a complaint, the chief judge is obligated to review it expeditiously. Id, paragraph (3). The chief judge may dismiss the complaint if he finds, among other reasons, that (1) it is directly related to the merits of a decision or procedural ruling in the underlying case or (2) it is frivolous. Id, paragraph (3)(A).
Judge Hug properly reviewed plaintiff's judicial misconduct complaint and issued a written order in which he stated that part of the complaint related to the magistrate's discovery rulings in plaintiff's underlying case. The chief judge also found that the remainder of plaintiff's charges were wholly conclusory and lacking any supporting facts. For these reasons, Judge Hug dismissed plaintiff's judicial misconduct complaint under 28 U.S.C. § 372(c)(3)(A). Such action did not deprive plaintiff of any rights. As Judge Hug stated in his order, if plaintiff desires to challenge the magistrate's rulings in the underlying case, correct review procedures through an appeal, "not the procedures for judicial misconduct, [is] the proper remedy." In re Charge of Judicial Misconduct, 685 F.2d 1226, 1227 (9th Cir Jud Council 1982). Similarly, therefore, the other defendant judges' affirmance of Judge Hug's decision also did not violate plaintiff's rights. Hence, to the extent plaintiff attempts to allege a claim under section 1983, it is dismissed for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
The clerk is directed to close the file and terminate all pending motions.
IT IS SO ORDERED.