John Robert Demos, Jr. v. President of the United States, the Hon. George W. Bush

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CLD-094 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4161
___________
JOHN ROBERT DEMOS, JR., Appellant
v.
PRESIDENT OF THE UNITED STATES,
THE HON. GEORGE W. BUSH;
THE UNITED STATES OF AMERICA
____________________________________
On Appeal from the District Court
for the District of the Virgin Islands
(D.C. Civ. No. 08-cv-00010)
District Judge: Honorable Raymond L. Finch
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 14, 2010
Before: BARRY, FISHER and ROTH, Circuit Judges
(Opinion filed: February 17, 2010 )
_________
OPINION
_________
PER CURIAM.
On January 29, 2008, John R. Demos, Jr., an inmate in the State of Washington,
filed in the District Court for the District of the Virgin Islands a pleading titled “writ of

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We note that Demos is a litigant with “three strikes” under 28 U.S.C. § 1915(g).1
To the extent that he filed the present suit under “28 U.S.C. § 1651” in a thinly veiled
attempt to evade the provisions of the Prison Litigation Reform Act, the District Court
should have required Demos either to pay the filing fee for a civil action in full, or to
demonstrate “imminent danger of serious physical injury” within the meaning of
§ 1915(g) if he wished to proceed in forma pauperis.
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quo warranto, or in the alternative, a civil claim against the President of the United States
of America,” purportedly pursuant to 28 U.S.C. § 1651. Although his pleading is largely
illegible, Demos appears to claim, among other things, that then-President George W.
Bush engaged in “employer discrimination” by failing to hire Demos “for the job of U.S.
Secretary of State.” Pleading at 9.
On September 23, 2009, the District Court entered an order dismissing the matter
for failure to prosecute because Demos had neither served the defendants nor sought
leave to proceed in forma pauperis. Demos timely filed this appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291. We will summarily affirm
because the appeal presents “no substantial question.” 3d Cir. IOP Ch. 10.6.
The record reflects that Demos neither paid the fees nor submitted a motion in the
District Court for leave to proceed in forma pauperis. His suit was thus properly
dismissed on that basis alone. The filing fee issue aside, Federal Rule of Civil1
Procedure 4(m) provides that if service is not made within 120 days after the complaint is
filed, the court “must dismiss the action without prejudice against that defendant or order
that service be made within a specified time.” Id. Although Demos asserts on appeal

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that he served the complaint, see “Petitioner’s Rebuttal” at 2, there is no record evidence
to support that assertion. Under Rule 4(l), “[u]nless service is waived, proof of service
must be made to the court.... [P]roof must be made by the server’s affidavit.” Demos did
not demonstrate proper service.
For these reasons, we will affirm the order dismissing this matter for failure to
prosecute.

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