Tutankhaman v. Boulware II

• Court: District Court, D. Nevada
• Decided: October 7, 2022
• Docket: 2:22-cv-01462
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 4

5 King Michael Tutankhaman, Case No.: 2:22-cv-01462-CDS-EJY

6 Plaintiff Order Adopting Magistrate Judge’s Report 7 v. and Recommendation and Closing Case

8 Richard F. Boulware II, (ECF No. 1, 4, 6, 7)

9 Defendant

10 11 United States Magistrate Judge Elayna J. Youchah issued a Report and Recommendation 12 (R&R) finding that plaintiff King Michael Tutankhaman’s complaint fails to state a claim upon 13 which relief may be granted. She recommends that I dismiss with prejudice the plaintiff’s claims 14 because (1) it appears beyond a doubt that the plaintiff can prove no set of facts in support of his 15 claims that would entitle him to relief, (2) Judge Boulware is immune from suit, and (3) federal 16 law does not allow a private citizen to bring a criminal prosecution against another citizen. ECF 17 No. 6. The deadline by which any written objections to the R&R must have been filed was 18 October 3, 2022. Id. at 3; LR IB 3-2. To date, no objections have been filed. I therefore adopt the 19 R&R in its entirety and direct the Clerk of Court to close this case. 20 “[N]o review is required of a magistrate judge’s report and recommendation unless 21 objections are filed.” Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003); see also Thomas 22 v. Arn, 474 U.S. 140, 150 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The 23 plaintiff does not object to the R&R here. While a de novo review of the R&R is not required, I 24 nevertheless conduct one here. See 28 U.S.C. § 636(b)(1). A magistrate judge’s order should only 1 be set aside if it is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); LR IB 3-1(a); 28 2 U.S.C. § 636(b)(1)(A). A magistrate judge’s order is “clearly erroneous” if the court has “a 3 definite and firm conviction that a mistake has been committed.” See United States v. U.S. Gypsum 4 Co., 333 U.S. 364, 395(1948); Burdick v. Comm’r IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). “An order 5 is contrary to law when it fails to apply or misapplies relevant statutes, case law[,] or rules of 6 procedure.” UnitedHealth Grp., Inc. v. United Healthcare, Inc., 2014 WL 4635882, at *1 (D. Nev. Sept. 7 16, 2014). 8 The plaintiff brought this lawsuit after Judge Boulware dismissed another of the 9 plaintiff’s civil cases. ECF No. 1-1 at 3. As the magistrate judge properly concludes, federal judges 10 have absolute immunity from suit. ECF No. 6 (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1394 11 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988)). The plaintiff thus cannot prevail in a suit 12 against Judge Boulware because of absolute immunity. The magistrate judge also properly 13 identifies that federal law does not permit private citizens to bring criminal prosecutions, which 14 is what the plaintiff appears to attempt here. Id. (citing Kidwell v. Cal. Dep’t of Corr. and Rehab., 2022 15 WL 2307872, at *2 (E.D. Cal. June 27, 2022)). Further, the magistrate judge concludes that 16 “irrespective of the legal theory [that] [p]laintiff seeks to employ in an effort to sue Judge 17 Boulware, his claims fail as a matter of law.” Id. at 2. I agree. Because the plaintiff does not object 18 to the R&R and because it was not clearly erroneous or contrary to law, I adopt the R&R in its 19 entirety and dismiss the plaintiff’s complaint. I also deny the plaintiff’s two pending applications 20 for leave to proceed in forma pauperis as moot and direct the Clerk of Court to close this case. 21 IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and 22 Recommendation (ECF No. 6) is ADOPTED in its entirety. 23 IT IS FURTHER ORDERED that the plaintiff’s complaint (ECF No. 1-1) is DISMISSED 24 WITH PREJUDICE, and both of his in forma pauperis applications (ECF Nos. 1, 7) are DENIED 2 1 as moot. I direct the Clerk of Court to CLOSE THIS CASE. The plaintiff is advised that he may 2 not file any further documents in this case, and the Clerk’s Office is authorized to reject any 3 filings from the plaintiff on the docket for this matter. 4 DATED: October 7, 2022 5 ______________________________________ Cristina D. Silva 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 3