Brott v. Racki

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

Aaron Joseph Brott, CV 20-126-GF-BMM

Plaintiff, vs. ORDER ADOPTING THE MAGISTRATE’S FINDINGS AND Joshua Racki, et al.,

RECOMMENDATION (DOC. 2) Defendants.

Petitioner Brott filed this action under 28 U.S.C. § 2241 on December 29, 2020. Doc. 1. Brott is representing himself and remains in pretrial detention. He asks the Court to order that he be released or, in the alternative, to restore his phone privileges, allow him to communicate with his family and friends, and transfer him to general population. United States Magistrate Judge John Johnston issued a Findings and Recommendation on January 4, 2021. Doc. 2. Petitioner Brott filed objections to Magistrate Johnston’s order on January 12, 2021. Doc. 3.

FINDINGS AND RECOMMENDATION

Magistrate Johnston recommends that the Court dismiss Petitioner Brott’s petition. Doc. 2 at 3. Magistrate Johnston cites that Petitioner Brott failed to pay the filing fee and failed to move to proceed in forma pauperis. Id. Magistrate Johnston determined that Petitioner Brott needs to exhaust his claims in state court before he can proceed in federal court. Id. (citing Brown v.Ahern, 676 F.3d 899, 903 (9th Cir. 2012)). Magistrate Johnston also determined arguendo that Petitioner Brott’s case is likely barred by Younger v. Harris, 410 U.S. 37, 43 (1971). Magistrate Johnston recommended that the Court should deny the certificate of appealability. Magistrate Johnston recommended that the Court direct the clerk to close this matter. Id.

LEGAL STANDARD

The Court conducts de novo review of the portions of a magistrate judge’s findings and recommendations to which a party properly objects. 28 U.S.C. § 636(b)(1). A party makes a proper objection by “identifying the parts of the magistrate’s disposition that the party finds objectionable and presenting legal argument and supporting authority, such that the Court is able to identify the issues and the reasons supporting a contrary result.” Montana Shooting Sports Ass’n v. Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18, 2010). The Court will review for clear error the portions of a magistrate judge’s findings and recommendations to which a party’s objections constitute only perfunctory responses argued in an attempt to rehash the same arguments set forth in the original response. Rosling v. Kirkegard, 2014 WL 693315, at *3 (D. Mont. Feb. 21, 2014). Clear error exists if the Court is left with a “definite and firm conviction that a mistake has been committed.” United States v. Syraz, 235 F.3d 422, 427 (9th Cir. 2000).

PETITIONER BROTT’S OBJECTIONS

Petitioner Brott objected to Magistrate Johnston’s Findings and Recommendation. Doc. 3. The objections constitute only a perfunctory response to Magistrate Johnston’s Findings and Recommendation. See Rosling, 2014 WL 693315, at *3. The Court will review the Magistrate Johnston’s Findings and Recommendation for clear error. Syraz, 235 F.3d at 427.

Magistrate Johnston’s Findings and Recommendation does not prove clearly erroneous. Magistrate Johnston correctly noted that Petitioner Brott failed to pay the filing fee or move to proceed in forma pauperis. Doc. 2 at 1. Petitioner Brott has not exhausted his remedies in state court. Id. Most importantly, Younger v. Harris, 410 U.S. 37, 43 (1971) likely bars Petitioner Brott claims.

IT IS HEREBY ORDERED:

1. Magistrate Johnston’s Findings and Recommendation (Doc. 2) is ADOPTED in full.

2. Petitioner Brott’s petition (Doc. 1) is DISMISSED.

3. A certificate of appealability is DENIED.

4. The Clerk of the Court shall enter a judgment and close this matter.

Dated the 5th day of February, 2021.

#9

Nitin | “4

Pk

Brian Morris, Chief District Judge United States District Court