Barrino v. Gibb

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TONY CURTIS BARRINO, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-2396 (ESH) ) ROBERT GIBBS, et al., ) ) Defendants. )

MEMORANDUM OPINION

This matter is before the Court on consideration of plaintiff’s pro se complaint, as well as

his faxed response to defendants’ motion. For the reasons stated below, the Court will dismiss

the complaint.

Plaintiff, who is proceeding in forma pauperis, brings this action against Hillary Clinton,

Secretary of State, and Robert Gibbs, White House Press Secretary. See Compl. (caption).

Referring to provisions of the federal criminal code pertaining to racketeering enterprises, see 18

U.S.C. §§ 1959 and 1961, extortion and threats, see 18 U.S.C. §§ 871-72, 875 and 878, and

unlawful acts of revenue officers or agents, see 26 U.S.C. § 7214, among others, the complaint

merely alleges that plaintiff “ha[s] money held in the US Treasury and [a vehicle is] being

withheld[.]” Compl. at 1. He demands judgment in an undetermined sum. Id. Defendants

move to dismiss the complaint on the ground that the complaint is frivolous or, alternatively, on

the ground that its factual allegations “fail[] to meet the plausibility standard articulated in

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).” Mot. to Dismiss and to Quash Subpoena ¶ 2.1

1 The court granted defendants’ motion to quash subpoenas by minute order on December 29, 2009.

1 The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]’” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

The Supreme Court instructs that, “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, __ U.S. __, __, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. at 555). A claim is facially plausible “when the plaintiff pleads factual

content that allows the court to draw a reasonable inference that the defendant is liable for the

misconduct alleged.” Id., 129 S.Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at

556). A plaintiff must offer “more than labels and conclusions” to provide “grounds” of

“entitle[ment] to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. at 555.

If the allegations of the complaint are to be believed, at most, plaintiff establishes that the

United States Department of the Treasury withholds funds to which he is entitled, and that

unspecified persons or entities unlawfully are holding his vehicle. There are no allegations that

the named defendants are responsible for these events, or that plaintiff otherwise is entitled to

any relief. Moreover, certain of the criminal statutes on which plaintiff relies do not give rise to a

private right of action. See Clements v. Chapman, 189 Fed. Appx. 688, 692 (10th Cir. 2006)

(affirming dismissal of claims under 18 U.S.C. §§ 872, 875(c), among others, on the ground that

these federal statutes do not provide for a private cause of action); Alexandre v. Phibbs, 116 F.3d

482 (9th Cir. 1997) (dismissing extortion claim under 18 U.S.C. § 1951); Stewart v. United

States, 578 F. Supp. 2d 30, 35-36 (D.D.C. 2008) (dismissing claim under 26 U.S.C. § 7214); cf.

2 Rockefeller v. U.S. Court of Appeals Office, for Tenth Circuit, 248 F. Supp. 2d 17, 23 (D.D.C.

2003) (“criminal statutes [ ] do not convey a private right of action”); 28 U.S.C. § 547(1) (the

United States Attorney “shall prosecute for all offenses against the United States”)). And the

mere mention of the criminal statutes pertaining to a racketeering enterprise, see 18 U.S.C. §§

1959 and 1961, are not sufficient to state a claim. See Howard v. America Online Inc., 208 F.3d

741, 748-51 (9th Cir. 2000) (affirming dismissal of a RICO claim based on conclusory

allegations that failed to set forth the requisite elements).

The Court will dismiss the complaint and this civil action without prejudice on the

ground that it fails to state a claim on which relief can be granted. An Order consistent with this

Memorandum Opinion will be issued separately on this same date.

/s/ ELLEN SEGAL HUVELLE Date: February 2, 2010 United States District Judge