Weller v. State of Montana et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Weller's Complaint 2 is DISMISSED for failure to state a claim. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). The Court certifies that any appeal of this decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 2/29/2012. Mailed to Weller. (TAG, )

FILED

FEB 2 9 2012
PATRICK E. DUFFY, CLERK

By
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

HELENA DIVISION

SHAWN HOWARD WELLER.
Plaintiff,
vs,
THE STATE OF MONTANA and
MIKE MAHONEY,
Defendants.

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CV 11-68-H-DWM-RKS

ORDER

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Plaintiff Shawn Howard Weller, appearing pro se, filed a Complaint in this
Court on November 17, 2011, Dkt # 2. He subsequently filed a motion requesting
the Court order the Montana State Prison to provide him treatment and seeking the
recusal of United States Magistrate Judge Keith Strong and myself. Dkt # 4.
Judge Strong issued an Order and Findings and Recommendations on January 17,
2012, recommending this matter be dismissed because Weller's claims are barred

by res judicata. Dkt # 5. Judge Strong also denied Weller's motion for treatment
and his request that Judge Strong recuse himself Id. Weller filed objections,
arguing that his recusal motion should be granted and that his complaint should
not be dismissed. Dkt # 7.
Weller is entitled to de novo review of the findings or recommendations to
which he objects. 28 U.S.C. § 636(b)(1). Because the parties are familiar with the
factual and procedural background, it will not be restated here except as necessary
to explain the Court's decision.
A. Motion to recuse
Pursuant to 28 U.S.C. § 455, ajudge "shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned." However,
the alleged bias must stem from an "extrajudicial source" unless "opinions formed
by the judge on the basis of facts introduced or events occurring in the course of
the ... prior proceedings ...display a deep-seated favoritism or antagonism that would
make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 554-56
(1994).
Weller moves to disqualify me based on my prior rulings in his cases before
this court. Dkt # 7, 1. He contends the Court dismissed his habeas petition in
order to protect the state district court from his allegation that it illegally tampered
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with court transcripts. Id. However, there is no basis on which a reasonable
person would question the Court's impartiality in WeBer's prior cases or this
matter. The Court dismissed WeBer's 2009 petition because he failed to show
circumstances meriting federal interference with an ongoing state court
proceeding, and Weller's 2010 petition was dismissed because it was procedurally
defaulted without excuse. The Court has never demonstrated any antagonism
toward Weller or deep-seated favoritism to other parties. Accordingly, the motion
to disqualify me will be denied.

B.

Res judicata

Judge Strong found that the doctrine of res judicata bars this suit because
Weller is attempting to relitigate the same claims he brought or could have
brought before the Montana Supreme Court in his petition for habeas corpus.
Weller does not specifically object to this finding, and the Court agrees with Judge
Strong that all Weller's claims related to the intake procedures at the time he was
recommitted to the Montana State Priso, his parole eligibility, and the alleged
altering of court transcripts are barred by the doctrines of res judicata and claim
preclusion. See Weller v. Mahoney, Montana Supreme Court Opinion 10-0566,
February 2, 2011.
The Court also agrees that res judicata bars Weller from relitigating whether
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the Powell County District Court should have processed a complaint he filed
August 10, 2010 though Weller evidently failed to comply with the Rules of Civil
Procedure. Weller argues in his objections that the Court should not dismiss this
claim, stating that a court should not deny a pro se plaintiff access to the court
merely because of "unfamiliarity with filing procedures." Dkt # 7, 2.
While pro se pleadings are to be construed liberally in favor of a pro se
litigant, Haines v. Kerner, 404 U.S. 519 (1972), all parties, including pro se
litigants, must still know and comply with the courts' procedural and substantive
rules, King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987). Moreover, the liberal
construction granted pro se plaintiffs does not permit a court to reconsider claims
that have been litigated before. The Montana Supreme Court denied Weller's writ
for supervisory control on this issue because it was unable to conclude the district
court made a mistake of law. See Weller v. State ofMontana, the Third Judicial
District Court, Ray J Dayton, Montana Supreme Court Opinion OP 11-0337
(August 9,2011). Moreover, the Powell County complaint raised the same issues
later decided by the Montana Supreme Court when it denied Weller's habeas
petition. Weller may not relitigate these issues.

C. Conclusion
The Court see no clear error in Judge Strong's remaining findings and
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recommendations.
Accordingly, IT IS HEREBY ORDERED:
1. Judge Strong's Findings and Recommendations (dkt # 5) are adopted in
full.
2. Weller's Complaint (dkt # 2) is DISMISSED for failure to state a claim
upon which relief may be granted.
3. Weller's motions for treatment and recusal (dkt # 4) are DENIED.
4. The Clerk of Court is directed to close this matter and enter judgment
pursuant to Rule 58 of the Federal Rules of Civil Procedure.
5. The Clerk of Court is further directed to have the docket reflect that the
dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g) because Weller's
Complaint is frivolous.
6. The Clerk of Court is also directed to have the docket reflect that the
Court certifies pursuant to Fed. R. App. P. 24(a)(3)(A) that any appeal of this
decision would not be taken in good faith because the Complaint is frivolous.
Dated this;t!/;;:y ofFebruary 2012.
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Donald w,. M lIoy, District Judge
United
tes .strict Court