UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TONY CURTIS BARRINO, )
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Plaintiff, )
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v. ) Civil Action No. 09-2396 (ESH)
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ROBERT GIBBS, et al., )
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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
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The court granted defendants’ motion to quash subpoenas by minute order on
December 29, 2009.
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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.
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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
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