AUGUST 2024 - COMPLAINT OF JUDICIAL MISCONDUCT No. 06-23-901

JUDICIAL COUNCIL OF THE SIXTH CIRCUIT

Michigan-Ohio-Kentucky-Tennessee

Complaint of Judicial Misconduct

No. 06-23-90121

MEMORANDUM AND ORDER

This complaint of judicial misconduct was filed by Dennis Phillipson (referred to as "Complainant") against the Honorable Sheryl H. Lipman, Chief United States District Judge for the Western District of Tennessee (referred to as "Subject Judge"), under 28 U.S.C. § 351. The Complainant generally challenges the Subject Judge’s handling of civil litigation to which he is a party.

After conducting an initial review, the chief circuit judge may dismiss a complaint of judicial misconduct if he concludes:

    (A) the claimed conduct, even if it occurred, "is not prejudicial to the effective and expeditious administration of the business of the courts";

    (B) the complaint "is directly related to the merits of a decision or procedural ruling";

    (C) the complaint "is frivolous," meaning the charges are wholly unsupported; or

    (D) the complaint "lack[s] sufficient evidence to raise an inference that misconduct has occurred."

These criteria are outlined in Rule 11(c)(1)(A)-(D) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, and 28 U.S.C. § 352(a), (b).

In his initial complaint, the Complainant asserts that the Subject Judge made errors while presiding over his underlying case and demonstrated bias in favor of the opposing party. In a supplement, he further alleges that the Subject Judge engaged in misconduct by permitting her law clerk, who was formerly employed by the same law firm as counsel for the opposing party, to work on the underlying case.

This complaint is subject to dismissal. The Complainant fails to support his allegations of bias and misconduct with credible facts. His claims are merely hypotheticals, suggesting that if the Subject Judge did certain things, then misconduct "may" have occurred. He cites no evidence that the Subject Judge actually did those things. Similarly, the allegation that denying a motion to compel and entering a protective order suggests a conflict of interest and raises the issue of potential abuse of the discovery process lacks any factual basis. This portion of the complaint is thus subject to dismissal as lacking sufficient evidence to raise an inference that misconduct occurred. See 28 U.S.C. § 352(b)(1)(A)(iii); Rule 11(c)(1)(D), Rules for Judicial-Conduct and Judicial-Disability Proceedings.

To the extent the complaint challenges the Subject Judge's decisions in the underlying litigation, it is also subject to dismissal. The judicial-complaint process may not be used to challenge the merits of judicial decisions made in underlying proceedings; such decisions are not the proper subject of a complaint of judicial misconduct. See Rule 4(b)(1), Rules for Judicial-Conduct and Judicial-Disability Proceedings. The Judicial Council is not a court and has no jurisdiction to review the Subject Judge’s rulings or to grant relief requested in the underlying case. See In re Complaint of Judicial Misconduct, 858 F.2d 331 (6th Cir. 1988). These claims are therefore subject to dismissal as directly related to the merits of the Subject Judge’s decisions in the underlying proceedings. See 28 U.S.C. § 352(b)(1)(A)(ii); Rules 11(c)(1)(B), Rules for Judicial-Conduct and Judicial-Disability Proceedings.

Finally, the claim that the Subject Judge had a conflict of interest in the underlying case because of her law clerk’s former employment is also subject to dismissal. A law clerk’s former employment does not necessarily create a conflict of interest with the former employer in all future cases. Indeed, the Subject Judge addressed this in the underlying proceedings, noting that the law clerk’s affiliation with the firm in question ceased three years before the lawsuit against the Complainant was filed. This claim is thus subject to dismissal as lacking sufficient evidence to raise an inference that misconduct has occurred. See 28 U.S.C. § 352(b)(1)(A)(iii); Rule 11(c)(1)(D), Rules for Judicial-Conduct and Judicial-Disability Proceedings.

Accordingly, it is ORDERED that the complaint be dismissed under 28 U.S.C. § 352(b)(1)(A)(ii)-(iii) and Rules 11(c)(1)(B) and (D) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings.

Date: August 9, 2024

/s/ Jeffrey S. Sutton

Chief Judge