United States District Court, D. Montana, Helena Division
ORDER ADOPTING MAGISTRATE
JUDGE'S FINDINGS AND
Morris United States District Court Judge
Jeffrey John Lout and ten other pro se prisoners filed an
action styled an “en masse petition for a writ of
habeas corpus” seeking to challenge the
constitutionality of the criminal charging process utilized
by the State of Montana. (Doc. 1 at 18-32.) Lout also filed a
Motion to Proceed in Forma Pauperis (Doc. 2), a Motion to
Dismiss (Doc. 3), and a Motion for Copies (Doc. 4).
States Magistrate Judge John Johnston issued an Order and
Findings and Recommendations in this matter on January 25,
2018. (Doc. 6.) Judge Johnston granted Lout's motion to
proceed in forma pauperis. Id. at 4. Judge Johnston
ordered that Lout's motion to dismiss and motion for
copies be denied as moot. Id. Judge Johnston further
recommended that the Court dismiss Lout's petition with
prejudice as an unauthorized second or successive petition.
mailed a Motion for Recusal (Doc. 10), Motion for Joint
Action (Doc. 9) and Motion to Appoint Counsel (Doc. 11) on
January 17, 2018. These motions were received and docketed on
January 29, 2018. Lout mailed an objection to these Findings
and Recommendations on January 30, 2018, which was docketed
February 5, 2018. (Doc. 12.)
Johnston denied Lout's Motion for Recusal (Doc. 10), and
his simultaneously-filed Motion for Joint Action (Doc. 9),
and Motion to Appoint Counsel (Doc. 11) on March 13, 2018.
Court reviews de novo findings and recommendations
to which objections are made. 28 U.S.C. § 636(b)(1)(C).
Portions of findings and recommendations to which no party
specifically objects are reviewed for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Where a
party's objections constitute perfunctory responses,
however, argued in an attempt to engage the district court in
a relitigation of the same arguments set forth in the
original response, the Court will review for clear error the
applicable portions of the findings and recommendations.
Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont.
Feb. 21, 2014) (internal citations omitted).
objection discusses his Motion for Recusal. (Docs. 10; 12 at
2-4.) Lout contends that the filing of the Motion for Recusal
some eight days before Judge Johnston issued his Order and
Findings and Recommendations renders the Order and Findings
and Recommendation “null and void” and
“without jurisdiction.” (Doc. 12 at 4.)
Court notes Lout's pro se status. The Court must
“liberally construe” pro se filings.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). The
Court will thus review Judge Johnston's jurisdiction to
issue the Order and Findings and Recommendations de
Johnston recommends that the Court dismiss Lout's
petition because Lout is ineligible to file a second or
successive habeas petition without leave from the Ninth
Circuit. (Doc. 6 at 2-3.)
argues that Judge Johnston lacked jurisdiction to enter his
Order and Findings and Recommendations because Lout mailed
his Motion for Recusal some eight days before Judge Johnston
entered the Order and Findings and Recommendations. (Doc. 12
at 4.) Lout contends that 28 U.S.C. § 144 represents a
self-executing statute that barred Judge Johnston from
further action once Lout mailed his motion for recusal.
U.S.C. § 144 provides that a party must file a
“timely and sufficient affidavit” regarding the
personal bias or prejudice of the presiding judge.
“Only after the legal sufficiency of the affidavit is
determined does it become the duty of the judge to
‘proceed no further' in the case.” United
States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978)
(internal citations omitted). The judge against whom Section
144 is invoked “may pass on [the affidavit's] legal
sufficiency.” Id. (citing Berger v. United
States, 255 U.S. 22, 32-34 (1922)).
“timely and sufficient affidavit” is a
prerequisite to recusal under Section 144. The Court notes
that Lout submitted no affidavit with his motion. Even if
Lout had submitted the requisite affidavit, Judge Johnston
would have retained jurisdiction to evaluate the timeliness
and sufficiency of the affidavit. The statute does not
provide for the automatic recusal that Lout seeks to ...