FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT
IN RE COMPLAINT No. 11-90024
OF JUDICIAL MISCONDUCT
ORDER
Filed May 25, 2011
ORDER
KOZINSKI, Chief Judge:
A pro se litigant alleges that a magistrate judge, to whom
the case was referred for settlement proceedings, should have
recused due to a conflict of interest. Allegations that a judge
erred in failing to recuse are generally dismissed as merits-
related. See 28 U.S.C. § 352(b)(1)(A)(ii); Judicial-Conduct
Rule 11(c)(1)(B); In re Complaint of Judicial Misconduct,
579 F.3d 1062, 1064 (9th Cir. Jud. Council 2009). “A failure
to recuse may constitute misconduct only if the judge failed
to recuse for an improper purpose.” In re Judicial Miscon-
duct, 605 F.3d 1060, 1062 (9th Cir. Jud. Council 2010).
There’s no evidence that happened here.
Complainant also alleges that the magistrate judge was
racially biased against her and is mentally disabled. But she
provides no evidence to support these allegations. See In re
Complaint of Judicial Misconduct, 569 F.3d 1093, 1093 (9th
Cir. Jud. Council 2009). These charges must therefore be dis-
missed as unfounded. See 28 U.S.C. § 352(b)(1)(A)(iii);
Judicial-Conduct Rule 11(c)(1)(D).
Finally, complainant alleges that the judge “engaged in dis-
cussions with” defendant and defendant’s attorney in com-
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6838 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
plainant’s absence. But it’s not inappropriate for a settlement
judge to have ex parte communications, in order to facilitate
an agreement between the parties. See, e.g., Platypus Wear,
Inc. v. U.S. Fid. & Guar. Co., No. 09-2839-JLS (WVG), 2010
WL 4055540, at *1 n.1 (S.D. Cal. 2010); cf. In re Cnty. of Los
Angeles, 223 F.3d 990, 993 (9th Cir. 2000) (describing differ-
ence in the roles of mediators and adjudicators). If the settle-
ment does fail, any ex parte information the settlement judge
learns is kept confidential and can have no effect on the reso-
lution of the case. See, e.g., 9th Cir. R. 33-1.
Because complainant doesn’t allege conduct “prejudicial to
the effective and expeditious administration of the business of
the courts,” her charges must be dismissed. See Judicial-
Conduct Rule 11(c)(1)(A).
DISMISSED.