Case 5:10-cv-07388-MSG Document 4 Filed 06/23/11 Page 1 of 4
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`____________________________________
`TOM C. SWIFT,
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`Plaintiff,
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`v.
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`GEORGE W. BUSH, DICK CHENEY,
`JOHN ASHCROFT,
`ALBERTO GONZALES,
`
`CIVIL ACTION
`
`10-7388
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`::
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`Defendants.
`____________________________________:
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`Goldberg, J.
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` June 23, 2011
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`MEMORANDUM OPINION
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`Plaintiff, Tom C. Swift, proceeding pro se, has filed a civil rights lawsuit against Defendants,
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`former President George W. Bush, former Vice-President Dick Cheney, and former Attorney
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`Generals John Ashcroft and Alberto Gonzales.
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`Defendants, represented by the United States Attorney, have filed a motion to dismiss for
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`failure to state a claim upon which relief may be granted pursuant to Federal Rules of Civil
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`Procedure 12(b)(6). For the reasons set forth below, the Court agrees with Defendants and will grant
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`their motion to dismiss.
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`I.
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`FACTUAL & PROCEDURAL HISTORY
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`Plaintiff filed his complaint on December 20, 2010, alleging violations of 18 U.S.C. § 2441
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`and seeking the criminal prosecution of Defendants for war crimes. Aside from a proclamation
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`1
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`____________________________________
`TOM C. SWIFT,
`
`Plaintiff,
`
`v.
`
`GEORGE W. BUSH, DICK CHENEY,
`JOHN ASHCROFT,
`ALBERTO GONZALES,
`
`CIVIL ACTION
`
`10-7388
`
`:
`:
`
`::
`
`:
`:
`:
`:
`
`::
`
`:
`Defendants.
`____________________________________:
`
`Goldberg, J.
`
` June 23, 2011
`
`MEMORANDUM OPINION
`
`Plaintiff, Tom C. Swift, proceeding pro se, has filed a civil rights lawsuit against Defendants,
`
`former President George W. Bush, former Vice-President Dick Cheney, and former Attorney
`
`Generals John Ashcroft and Alberto Gonzales.
`
`Defendants, represented by the United States Attorney, have filed a motion to dismiss for
`
`failure to state a claim upon which relief may be granted pursuant to Federal Rules of Civil
`
`Procedure 12(b)(6). For the reasons set forth below, the Court agrees with Defendants and will grant
`
`their motion to dismiss.
`
`I.
`
`FACTUAL & PROCEDURAL HISTORY
`
`Plaintiff filed his complaint on December 20, 2010, alleging violations of 18 U.S.C. § 2441
`
`and seeking the criminal prosecution of Defendants for war crimes. Aside from a proclamation
`
`1
`
`
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`Case 5:10-cv-07388-MSG Document 4 Filed 06/23/11 Page 2 of 4
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`regarding Plaintiff’s intentions to run for President in 2012, the complaint contains little additional
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`information. Defendants filed a motion to dismiss on February 18, 2011, pursuant to FED. R. CIV.
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`P. 12(b)(6). Plaintiff has supplied no opposition to Defendants’ motion.
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`II.
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`STANDARD OF REVIEW
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`When ruling on a motion to dismiss, a court must accept the facts pleaded in the complaint
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`as true and construe them in the light most favorable to the plaintiff. Semerenko v. Cendant Corp.,
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`223 F.3d 165, 173 (3d Cir. 2000). A court may dismiss a complaint only if it is clear that no relief
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`could be granted under any set of facts that could be proved consistent with the allegations. Hishon
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`v. King & Spalding, 467 U.S. 69, 73 (1984). However, a plaintiff must provide more than a
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`formulaic recitation of a claim’s elements that amounts to mere labels and conclusions. Bell Atlantic
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`Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint’s “factual allegations must be enough
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`to raise a right to relief above the speculative level.” Id. “To survive a motion to dismiss, a
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`complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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`plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S.
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`at 570).
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`On a motion to dismiss, a pro se complaint is held to a less stringent standard than a formal
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`pleading drafted by lawyers, and it should only be dismissed if it appears “beyond a doubt that the
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`plaintiff can prove no set of facts in support of [their] claim.” Olaniyi v. Alex Cab Co., 239
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`Fed.Appx. 698, 699 (3d Cir. 2007) (citing McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d
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`Cir. 1996)).
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`III.
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`DISCUSSION
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`Plaintiff’s complaint follows a “fill-in-the-blank” format, answering what appears to be a set
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`2
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`Case 5:10-cv-07388-MSG Document 4 Filed 06/23/11 Page 3 of 4
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`of pre-formulated, generic questions. As stated in the complaint:
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`Section IV: Injuries: If you sustained injuries related to the events alleged above,
`describe them and state what medical treatment, if any, you required and received:
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`Answer: N/A.
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`Section V: Relief: State what you want the Court to do for you and the amount of
`monetary compensation, if any, you are seeking, and the basis for such compensation:
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`Answer: N/A.
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`(Compl., p. 5.) Given that Plaintiff has affirmatively pleaded that he has suffered no injuries and
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`seeks no relief, Plaintiff has failed to state a claim for relief under FED. R. CIV. P. 12(b)(6).
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` Plaintiff also seeks the criminal prosecution of Defendants for war crimes. After Plaintiff
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`makes a litany of allegations against George W. Bush and his administration regarding
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`waterboarding and torture, Plaintiff states the following: “Below is the US Law that deals with what
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`George Bush did. Why is this crime not being prosecuted?” Plaintiff then goes on to recite 18
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`U.S.C. § 2441 on war crimes. (Compl., p. 8.)
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`Federal criminal statues such as 18 U.S.C. § 2441 do not create a private right of action.
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`Rockefeller v. U.S. Court of Appeals Office, for Tenth Circuit Judges, 248 F.Supp.2d 17, 23 (D.D.C.
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`2003) (criminal statutes do not convey a private cause of action). Rather, it is uniquely within the
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`province of each United States Attorney to “prosecute for all offenses against the United States.”
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`28 U.S.C. § 547(1). The United States Attorneys, as well as the Attorney General, are afforded
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`broad discretion in their enforcement of federal criminal law. United States v. Armstrong, 517 U.S.
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`456, 464 (1996). (Defs.’ Memo., pp. 3-4.)
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`In a recent, nearly identical, lawsuit in the District of Columbia, a resident sought to bring
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`war crimes charges against former President George W. Bush and former Vice-President Dick
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`3
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`Case 5:10-cv-07388-MSG Document 4 Filed 06/23/11 Page 4 of 4
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`Cheney. The court dismissed that case sua sponte for failure to state a claim. Hohensee v. Bush, No.
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`09-0424, 2009 WL 565701 (D.D.C. Mar. 5, 2009).
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`Accordingly, construing the allegations in the complaint in a light most favorable to Plaintiff,
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`he has not stated a claim upon which relief can be granted because he has alleged no injuries, seeks
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`no relief, and a private complainant is not authorized to seek a criminal remedy.
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`III.
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`CONCLUSION
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`Therefore, because Plaintiff has failed to state claim for relief pursuant to FED. R. CIV. P.
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`12(b)(6), the above-captioned action will be dismissed.
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`Our Order follows.
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`4
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