Sacramento Nonprofit Collective et al v. Holder et al

Filing 13

ORDER signed by Judge Garland E. Burrell, Jr on 2/28/2012 ORDERING plaintiff's 1 Complaint is DISMISSED with prejudice; Judgment shall be entered in favor of defendants. CASE CLOSED. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO NONPROFIT COLLECTIVE,
dba EL CAMINO WELLNESS CENTER, a
mutual benefit non-profit
collective; RYAN LANDERS, an
individual,
Plaintiffs,

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v.

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ERIC HOLDER, Attorney General of
the United States; MICHELLE
LEONHART, Administrator of the
Drug Enforcement Administration;
BENJAMIN B. WAGNER, U.S.
Attorney for the Eastern
District of California,

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Defendants.
________________________________

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2:11-cv-02939-GEB-EFB
ORDER GRANTING DEFENDANTS’
DISMISSAL MOTION*

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The federal defendants, Attorney General of the United States

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Eric

Holder,

Administrator

of

the

Drug

Enforcement

Administration

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Michelle Leonhart, and the United States Attorney for the Eastern

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District of California Benjamin Wagner (“Defendants”) move for dismissal

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of Plaintiffs’ Complaint under Federal Rule of Civil Procedure (“Rule”)

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12(b)(6). Defendants argue their motion should be granted since the

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majority of Plaintiffs’ claims have already been rejected by the United

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*

argument.

This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
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States Supreme Court and the Ninth Circuit, and the remaining claims are

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not actionable. Plaintiffs oppose the motion.

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I. 12(b(6) Standard

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Decision

on

Defendants’

Rule

12(b)(6)

motion

requires

5

determination of “whether the complaint’s factual allegations, together

6

with all reasonable inferences, state a plausible claim for relief.”

7

Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 (9th

8

Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,

9

1949-50 (2009)). “A claim has facial plausibility when the plaintiff

10

pleads factual content that allows the court to draw the reasonable

11

inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S.

13

544, 556 (2007)).

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When determining the sufficiency of a claim, “[w]e accept

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factual allegations in the complaint as true and construe the pleadings

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in the light most favorable to the non-moving party[; however, this

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tenet does not apply to] . . . legal conclusions . . . cast in the form

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of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.

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2011) (internal quotation marks and citations omitted). “Therefore,

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conclusory

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insufficient to defeat a motion to dismiss.” Id. (internal quotation

22

marks and citation omitted).

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allegations

of

law

and

unwarranted

inferences

are

II. Requests for Judicial Notice

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Defendants include in their motion a request that judicial

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notice be taken of the criminal indictments and related court documents

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filed in United States v. Bartkowicz, No. 1:10-cr-00118-PAB (D. Colo.

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May 5, 2010), and United States v. Do, No. 1:11-cr-00422-REB (D. Colo.

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Oct. 13, 2011), which are attached to the motion as Exhibits D and E.
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Judicial notice may be taken “of court filings and other matters of

2

public record[;]” therefore, this request is granted. Reyn’s Pasta

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Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).

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Defendants also request that judicial notice be taken of three judicial

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opinions from other district courts in California. (Defs.’ Mot. to

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Dismiss (“Mot.”) Exs. A-C.) “The court does not need to judicially

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notice the[se] opinion[s] to consider [them].” Thompson v. Residential

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Credit Solutions, Inc., No. CIV. 2:11–2261 WBS DAD, 2012 WL 260357, at

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*2 (E.D. Cal. Jan. 26, 2012).

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Plaintiffs request that judicial notice be taken of a joint

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stipulation of dismissal and an attachment thereto, which were filed in

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an unrelated case, County of Santa Cruz v. Ashcroft, No. CV-09-2386-JF

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(N.D. Cal. Jan. 25, 2010) (“Santa Cruz action”). (Pls.’ Request for

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Judicial Notice (“RJN”) Ex. 1; Compl. Ex. 3.) The document attached to

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the stipulation of dismissal is a memorandum issued by Deputy Attorney

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General David W. Ogden (“the Ogden Memo”) dated October 19, 2009, which

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states

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prosecutors in States that have enacted laws authorizing the medical use

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of marijuana.” (Ogden Memo at 1, Pls.’ RJN Ex. 1; Pls.’ Compl. Ex. 3.)

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Plaintiffs attached these documents to both their Complaint and their

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request for judicial notice. Since “[a court] may . . . consider

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materials that are submitted with and attached to the Complaint” in

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reviewing a 12(b)(6) motion, these documents are considered. United

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States v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir. 2011).

that

it

“provides

clarification

and

guidance

to

federal

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Plaintiffs also request that judicial notice be taken of the

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transcript of proceedings from the October 30, 2009 hearing in the Santa

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Cruz

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statements made by the Department of Justice at that hearing. (Pls.’s

action,

since

Plaintiffs’

judicial

3

estoppel

claim

relies

on

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RJN Ex. 2.) “A court may consider evidence on which the complaint

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necessarily relies if: (1) the complaint refers to the document; (2) the

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document is central to [Plaintiffs’] claim; and (3) no party questions

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the authenticity of the copy attached to the 12(b)(6) motion. The court

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may treat such a document as part of the complaint, and thus may assume

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that its contents are true for purposes of a motion to dismiss under

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Rule 12(b)(6).” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)

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(internal quotation marks and citations omitted). Since the transcript

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satisfies these criteria, it will be considered.

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Plaintiffs

also

seek

judicial

notice

of

the

following

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documents attached to their request for judicial notice: Declaration of

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Rick Doblin in Support of Plaintiffs’ Petition for Temporary Restraining

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Order/Preliminary Injunction in Conejo Wellness Center Cooperative, Inc.

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v. Holder, No. CV11-9200 DMG (PJWx) (C.D. Cal. Nov. 8, 2011) (Exhibit

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3); three online news articles discussing the use of marijuana for

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medical purposes (Exhibits 4, 5 & 8); Declaration of Paul Armentano in

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Support

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Order/Preliminary Injunction in Marin Alliance for Medical Marijuana v.

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Holder, No. CV 11-5349 DMR (N.D. Cal. Nov. 8, 2011) (Exhibit 6);

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Declaration of Lester Grinspoon, M.D. in Support of the Brief of the

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Nat’l Org. for the Reform of Marijuana Laws, et al. as Amici Curiae

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Supporting Respondents, at App. B, Gonzales v. Raich, 545 U.S. 1 (2005)

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(No.

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Neuroprotectants,

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(Exhibit 9); and a print-out from the National Institute on Drug Abuse

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website providing information on marijuana, printed January 5, 2012

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(Exhibit 10). Plaintiffs do not refer to these documents in their

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Complaint and do not explain how the evidence contained in these

of

Plaintiffs’

03-1454)

(Exhibit
U.S.

Petition

7);

Patent

for

Cannabinoids
No.

4

6,630,507

Temporary

as

Restraining

Antioxidants

(filed

Oct.

7,

and
2003)

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documents

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Therefore, “[these documents] cannot be considered in resolving whether

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[Plaintiffs] state [claims] upon which relief can be granted without

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converting the motion to one for summary judgment[.]” Am. Express Travel

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Related Servs. Co., Inc. v. D & A Corp., No. CV-F-04-6737 OWW/TAG, 2007

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WL 2462080, at *12 (E.D. Cal. Aug. 28, 2007). However, “[they] may be

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considered in determining whether . . . amendment [of the Complaint]

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should be allowed[.]” Id.

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is

central

to

their

claims.

Marder,

450

F.3d

at

448.

III. Background

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Plaintiffs are the “Sacramento Nonprofit Collective, doing

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business as El Camino Wellness Center” (“El Camino Wellness Center”),

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which Plaintiffs allege “is a medical cannabis [dispensary] made up of

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patients which operate pursuant to California Health and Safety Code

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section 11362.775”; and Ryan Landers, “a medical cannabis patient with

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a California doctor’s recommendation to use medical cannabis.”

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¶¶ 7-8.) Plaintiffs allege that “in late September and early October

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2011, the United States Attorneys . . . for each of the four federal

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districts in California wrote to numerous individuals and entities

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involved in California’s Medical Marijuana program, alleging that the

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dispensaries, landlords who rent to the dispensaries, patients and other

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supporting commercial entities, even though they are fully in compliance

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with state law, are nonetheless in violation of federal law.” (Compl. ¶

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17.) Plaintiffs allege that “[s]wift sanctions[, including criminal

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prosecution, imprisonment, fines, and the forfeiture of assets,] were

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threatened if those involved did not cease their . . . activities.”

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(Compl. ¶ 17.) Plaintiffs allege that “[i]t is the threatening actions

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of these . . . [United States Attorneys] in mounting a comprehensive

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attack—mainly on all the support systems that any legitimate business
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(Compl.

1

needs—that will eviscerate and likely eradicate California’s Medical

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Marijuana Program.” (Compl. ¶ 19.)

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Plaintiffs allege that in early October 2011, United States

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Attorney Benjamin Wagner sent one of these letters to El Camino Wellness

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Center’s landlord, who is not a party in this case. (Compl. ¶ 7; Compl.

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Ex. 1.) The letter, which is attached to Plaintiffs’ Complaint as

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Exhibit 1, states in part:

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This office has received information that [the
property occupied by El Camino Wellness Center] is
being used to cultivate and/or distribute marijuana
in violation of [the Controlled Substances Act],
and that you are an owner, or have management or
control, of the property. This letter is formal
notice that continued use of the property in
violation of federal law may result in forfeiture
and criminal or civil penalties. . . . Under
federal forfeiture law, the “innocent owner”
defense is unavailable to those who know or have
reason to know of the illegal use of their
property. This letter puts you on notice. It is not
a defense to claim the property is providing
so-called
“medical
marijuana.”
Congress
has
determined that marijuana is a dangerous drug, and
that the manufacture and distribution of marijuana
are serious crimes. . . . Those who allow their
property to be used for such activities do so at
their peril.

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(Compl. Ex. 1.)

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Plaintiffs seek declaratory relief and a permanent injunction

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that would preclude the United States from enforcing the Controlled

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Substances

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California. (Compl. ¶¶ A-F.) Plaintiffs allege in their Complaint that

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Defendants’ enforcement of the CSA “violate[s] the Ninth Amendment,”

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since “[Defendants’] actions threaten” “[t]he plaintiff patients[’]

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. . . fundamental right[] to bodily integrity” and “their right to

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consult with their doctors about their bodies.” (Compl. ¶¶ 31-33.)

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Plaintiffs

Act

(“CSA”)

allege

that

against

Plaintiffs

Defendants’
6

and

actions

third

“violate

parties

the

in

Tenth

1

Amendment,” since Defendants’ enforcement of the CSA against California

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citizens “overturn[s]” California’s “primary plenary power to protect

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the health of its citizens.” (Compl. ¶¶ 37-38.) Plaintiffs also allege

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Defendants’ enforcement of the CSA violates the Fourteenth Amendment

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equal protection clause, since Defendants “unlawfully discriminate[]

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against medical cannabis patients in California” and have failed to show

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“a rational basis for [Defendants’] recent effort to end the supply of

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medical cannabis to qualified patients in California.” (Compl. ¶¶

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41-42.) Finally, Plaintiffs allege the doctrines of judicial estoppel

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and equitable estoppel preclude Defendants from enforcing the CSA, since

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Defendants’ actions are contrary to the enforcement policy Defendants

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announced in the Ogden Memo. (Compl. ¶¶ 20-28.)

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IV. Discussion
A. Commerce Clause

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Defendants argue “Plaintiffs’ Commerce Clause . . . claim[]

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[is] plainly foreclosed by the binding precedent and reasoning of

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[Gonzales v. Raich (‘Raich I’), 545 U.S. 1 (2005)].” (Mot. 9:3-4.) In

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Raich

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categorical prohibition of the manufacture and possession of marijuana

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as applied to the intrastate manufacture and possession of marijuana for

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medical

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Congress’ authority under the Commerce Clause.” 545 U.S. at 9, 15.

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Therefore, Plaintiffs’ Commerce Clause claim is foreclosed by United

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States Supreme Court precedent and is dismissed.

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B. Tenth Amendment

I,

the

United

purposes

States

pursuant

to

Supreme

Court

California

held

law

that

[does

the

not]

“CSA’s

exceed[]

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Defendants argue Plaintiffs’ Tenth Amendment claim is “plainly

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foreclosed by the binding precedent and reasoning of . . . [Raich v.

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Gonzales (‘Raich II’), 500 F.3d 850 (9th Cir. 2007),]” (Mot. 9:3-5), in
7

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which the Ninth Circuit stated that “after [Raich I], it would seem that

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there can be no Tenth Amendment violation in this case.” Raich II, 500

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F.3d at 867. Plaintiffs counter that the language in Raich II on which

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Defendants rely is dicta and the Ninth Circuit “never decided th[e]

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ultimate issue.” (Pls.’ Opp’n (“Opp’n”) 17:19-20.)

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However, it is well-established under United States Supreme

7

Court authority that “[i]f a power is delegated to Congress in the

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Constitution, the Tenth Amendment expressly disclaims any reservation of

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that power to the States.” New York v. United States, 505 U.S. 144, 156

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(1992).

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manufacturing, and distribution of marijuana “is delegated to Congress”

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through the Commerce Clause, Raich I, 545 U.S. at 15, Plaintiffs’

13

allegation that the power to regulate marijuana in California was

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reserved to California through the Tenth Amendment is foreclosed by

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United States Supreme Court precedent. New York, 505 U.S. at 156.

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Therefore, Plaintiffs’ Tenth Amendment claim is dismissed.

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C. Ninth Amendment

Since

the

power

to

regulate

the

intrastate

possession,

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Defendants argue Plaintiffs’ Ninth Amendment claim should be

19

dismissed since “the Ninth Amendment does not independently secure any

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judicially-enforceable constitutional rights.” (Mot. 9:16-17 (citing

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Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991)).)

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Further, Defendants argue even if Plaintiffs’ Ninth Amendment claim is

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“construed as a substantive due process claim under the Ninth and Fifth

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Amendments collectively,” the claim is foreclosed by “this Circuit’s

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precedent” in Raich II. (Mot. 9:18-20.) Defendants argue in Raich II the

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Ninth Circuit “considered the Ninth . . . Amendment[] in addressing

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whether there is a [fundamental or] substantive due process right to use

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8

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marijuana for claimed medical purposes, and it held that no such right

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exists.” (Mot. 9:21-23 (citing Raich II, 500 F.3d at 861-62).)

3

Plaintiffs counter that in Raich II, “the Ninth Circuit

4

invite[d] [the district courts] to . . . recognize [a fundamental right

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to use cannabis to alleviate pain and suffering].” (Opp’n 16:8-9,

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16:15.) Plaintiffs also argue in footnotes in their opposition brief

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that seventeen states have enacted laws that legalize the medical use of

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marijuana and six states have similar legislation pending. (Opp’n 15 n.8

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& 16 n.9.)

10

In the Ninth Circuit’s 2007 Raich II decision:

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16

Raich argue[d] that the last ten years have been
characterized
by
an
emerging
awareness
of
marijuana’s medical value. [Raich] contend[ed] that
the rising number of states that have passed laws
that permit medical use of marijuana or recognize
its therapeutic value is additional evidence that
the right is fundamental. Raich aver[red] that the
asserted right in [Raich II] should be protected on
the emerging awareness model that the Supreme Court
used in Lawrence v. Texas, 539 U.S. [558, 571
(2003).]

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500 F.3d at 865. The Ninth Circuit responded to Raich in pertinent part,

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as follows:

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15

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We agree with Raich that medical and conventional
wisdom that recognizes the use of marijuana for
medical purposes is gaining traction in the law as
well. But that legal recognition has not yet
reached the point where a conclusion can be drawn
that the right to use medical marijuana is
‘fundamental’ and ‘implicit in the concept of
ordered liberty.’ For the time being, this issue
remains in ‘the arena of public debate and
legislative action. . . . For now, federal law is
blind to the wisdom of a future day when the right
to use medical marijuana to alleviate excruciating
pain may be deemed fundamental. Although that day
has not yet dawned, considering that during the
last ten years eleven states have legalized the use
of medical marijuana, that day may be upon us
sooner than expected. Until that day arrives,
federal law does not recognize a fundamental right
to use medical marijuana prescribed by a licensed
9

1

physician to alleviate excruciating pain and human
suffering.

2
3

Raich II, 500 F.3d at 866 (internal citations omitted).

4

Plaintiffs indicate in their argument that the day referenced

5

in

6

fundamental Ninth Amendment right to obtain and use medical marijuana

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has emerged because the number of jurisdictions that have medical

8

marijuana laws has increased since Raich II was decided. (Opp’n 13:4-

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17:6.)

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11
12
13
14
15
16

Raich

II

on

which

a

federal

court

recognizes

their

asserted

Although the number of jurisdictions that have
medical marijuana laws has increased [since Raich
II was decided] . . . , the fact remains that the
majority of states do not recognize the right to
use marijuana for medicinal purposes. Moreover, as
to those states that have not legalized medical
marijuana, there is no allegation or evidence of a
pattern of non-enforcement of laws proscribing its
use. Finally—and significantly—it is difficult to
reconcile the purported existence of a fundamental
right to use marijuana for medical reasons with
Congress’ pronouncement that “for purposes of the
[CSA], marijuana has no currently accepted medical
use at all.”

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18

Marin Alliance for Med. Marijuana v. Holder, --- F. Supp. 2d ----, 2011

19

WL 5914031, at *11 (N.D. Cal. Nov. 28, 2011) (quoting United States v.

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Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 491 (2001)); cf. United

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States v. Fogarty, 692 F.2d 542, 548 (8th Cir. 1982) (“[I]t should be

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noted that under Section 811 [of the CSA,] Congress has provided a

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comprehensive reclassification scheme, authorizing the Attorney General

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to reclassify marijuana in view of new scientific evidence.”); Krumm v.

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Holder, No. CIV 08-1056 JB/WDS, 2009 WL 1563381, at *10 (D.N.M. May 27,

26

2009) (stating that “a scheduling decision is not a legal determination

27

that an Article III court is qualified to make without an administrative

28

record to review[; and w]hat states attempt to do with their medical
10

1

marijuana laws may be helpful to the [Drug Enforcement Agency] in making

2

its decisions, but the states’ actions do not eliminate the need for the

3

complex

4

changes”).

5

inquiry

that

Defendants

Congress

also

has

argue

that

required

“given

for

the

drug

scheduling

posture

of

this

6

matter—where

7

enforcement action against its landlord and not against any individual’s

8

marijuana

9

individuals have a right to access marijuana for medical purposes via

10

dispensaries such as the El Camino Wellness Center.” (Mot. 12:12-15

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(emphasis in original).) Defendants argue:

12

a

marijuana

use—Plaintiffs’

dispensary

actual

is

challenging

[argument]

appears

a

threatened

to

be

that

20

Such a right would extend well beyond the right
considered (only to be rejected) in Raich II, where
the court evaluated the right to use medical
marijuana. The two concepts are not synonymous.
Even if there were some narrow right to privately
use marijuana for medical purposes – and no court
has ever found one – the recognition of such a
right would not equate to the right of access to
marijuana through the Plaintiff dispensary or the
right to immunity from eviction or other measures.
Cf. Carey v. Population Servs., 431 U.S. 678, 687
(1977)
(distinguishing
the
right
to
“use”
contraceptives
identified
in
Griswold
v.
Connecticut, 381 U.S. 479 (1965), from the right of
access,
though
recognizing
that
subsequent
jurisprudence had broadened the specific rights
related to childbearing).

21

(Mot. 12:15-23 (emphasis in original).) Essentially, as the Defendants

22

contend, the referenced right on which Plaintiffs rely is a “right of

23

availability” or “right of access” to a non-federally approved Schedule

24

I

25

Complaint nor arguments in their opposition brief support Plaintiffs’

26

conclusory contention that these rights exist under federal law.

13
14
15
16
17
18
19

27
28

controlled

substance.

Neither

Plaintiffs’

allegations

in

their

As the United States Supreme Court stated in United Public
Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 95-96 (1947):
11

1

6

The powers granted by the Constitution to the
Federal Government are subtracted from the totality
of sovereignty originally in the states and the
people. Therefore, when objection is made that the
exercise of a federal power infringes upon rights
reserved by the Ninth . . . Amendment[], the
inquiry must be directed toward the granted power
under which the action . . . was taken. If granted
power is found, necessarily the objection of
invasion of . . . rights, reserved by the Ninth
. . . Amendment[], must fail.

7

Since the Supreme Court has held that the CSA’s categorical prohibition

8

of the possession, manufacturing, and distribution of marijuana does not

9

exceed Congress’ authority under the Commerce Clause, Plaintiffs do not

10

have a viable Ninth Amendment claim. See Raich I, 545 U.S. at 9, 15

11

(upholding Congress’s authority under the Commerce Clause to regulate

12

intrastate possession, manufacturing, and distribution of marijuana).

13

Therefore, Plaintiffs’ Ninth Amendment claim is dismissed.

14

D. Equal Protection

2
3
4
5

15

Defendants argue Plaintiffs’ Fourteenth Amendment claim should

16

be dismissed, since “Plaintiffs have failed to . . . articulat[e] a

17

prima facie equal protection claim.” (Mot. 20:10-11.) For purposes of

18

this motion, Plaintiffs’ Fourteenth Amendment claim is construed as a

19

Fifth

20

Amendment

21

Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542 n.21 (1987).

22

“The Fifth Amendment, however, does apply to the Federal Government and

23

contains an equal protection component. Equal protection analysis in the

24

Fifth

25

Amendment.” Cecelia Packing Corp. v. U.S. Dep’t of Agric., 10 F.3d 616,

26

623 (9th Cir. 1993) (internal quotation marks and citations omitted).

Amendment

equal

applies

Amendment

to

area

protection
actions

is

the

by

claim,
a

same

since

State.”

as

that

San

“[t]he

Fourteenth

Francisco

under

the

Arts

&

Fourteenth

27

“Equal protection under the Fifth Amendment . . . entrenches

28

a right to be free from discrimination based on impermissible statutory
12

1

classifications and other governmental action.” Doe v. United States,

2

419 F.3d 1058, 1062 (9th Cir. 2005) (internal citation omitted). “The

3

first step in equal protection analysis is to identify the [Defendants’]

4

classification of groups. To accomplish this, [Plaintiffs] can show that

5

the law is applied in a discriminatory manner or imposes different

6

burdens on different classes of people.” Freeman v. City of Santa Ana,

7

68 F.3d 1180, 1187 (9th Cir. 1995) (internal quotation marks and

8

citations omitted). To establish selective prosecution based on the

9

classification, Plaintiffs “must show that others similarly situated

10

have not been prosecuted and that the prosecution is based on an

11

impermissible

12

omitted). Further, “‘the conscious exercise of some selectivity in

13

enforcement is not in itself a federal constitutional violation’ so long

14

as ‘the selection was [not] deliberately based upon an unjustifiable

15

standard such as race, religion, or other arbitrary classification.’”

16

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (quoting Oyler v.

17

Boles, 368 U.S. 448, 456 (1962)).

18

motive.”

Here,

Id.

Plaintiffs

(internal

allege

quotation

that

marks

Defendants

and

enforce

citation

the

CSA

19

against medical marijuana patients and dispensaries in California, but

20

do not enforce it against individuals who receive medical marijuana

21

through federally approved “investigational new drug” (“IND”) programs

22

or against medical marijuana patients or dispensaries in Colorado.

23

(Compl. ¶ 41.) Defendants argue that individuals who participate in IND

24

programs are not “similarly situated” to Plaintiffs, since “[t]he CSA

25

expressly allows marijuana use in connection with research projects

26

funded by the federal government.” (Mot. 20:13-16 (citing 21 U.S.C. §

27

823(f).)

28
13

1

“A similarly situated offender is one outside the protected

2

class who has committed roughly the same crime under roughly the same

3

circumstances but against whom the law has not been enforced.” United

4

States v. Lewis, 517 F.3d 20, 27 (1st Cir. 2008) (citing United States

5

v. Armstrong, 517 U.S. 456, 469 (1996)). Since the possession and

6

distribution of marijuana in conjunction with IND programs does not

7

violate the CSA, participants in IND programs are not similarly situated

8

to Plaintiffs.

9

Defendants also argue Plaintiffs do not have a viable equal

10

protection

11

[Colorado].” (Mot. 21:1-2.) The judicially noticed documents evince that

12

Defendants have prosecuted medical marijuana patients and dispensaries

13

in Colorado under the CSA, even though the medical marijuana patients

14

and dispensaries claimed to be in compliance with Colorado’s medical

15

marijuana law. (United States v. Bartkowicz, No. 1:10-cr-00118-PAB (D.

16

Colo. May 5, 2010), attached as Ex. D to Defs.’ Mot.; United States v.

17

Do, No. 1:11-cr-00422-REB (D. Colo. Oct. 13, 2011), attached as Ex. E to

18

Defs.’ Mot.) Therefore, Plaintiffs’ allegation that Defendants prosecute

19

medical marijuana patients and dispensaries in California but not those

20

in Colorado is belied by evidence showing that Defendants have enforced

21

the CSA against similarly situated individuals in Colorado.

22

claim

“based

Plaintiffs

on

argue

the

in

alleged

their

level

opposition

of

enforcement

that

in

Defendants’

23

“briefing regarding equal protection focuses primarily on one component

24

identified in the complaint, relating to selective prosecution[;]”

25

however, “[e]qual protection is a broader concept.” (Opp’n at 18 n.10.)

26

Plaintiffs further argue in their opposition that “there is no rational

27

basis to classify cannabis as having no medical value” and “the CSA’s

28

prohibition

against

medical

use

in
14

compliance

with

State

law

is

1

invidious discrimination as applied to patients generally that use

2

cannabis to resolve illnesses and health problems versus patients who

3

use other drugs to do the same thing.” (Opp’n 20:24-21:2.) However,

4

Plaintiffs’

5

marijuana as a Schedule I drug under the CSA is foreclosed by Ninth

6

Circuit precedent, since “[t]he constitutionality of marijuana laws has

7

been settled adversely to [Plaintiffs] in this circuit.” United States

8

v. Miroyan, 577 F.2d 489, 495 (9th Cir. 1978) (internal quotation marks

9

and citation omitted); see Raich I, 454 U.S. at 9 (upholding federal

10

regulation of intrastate medical marijuana); Fogarty, 692 F.2d at 547

11

(“[W]e conclude that [defendant] has not met his heavy burden of proving

12

the irrationality of the Schedule I classification of marijuana.”). For

13

the stated reasons, Plaintiffs do not have a viable equal protection

14

claim, and this claim is dismissed.

15

E. Judicial Estoppel and Equitable Estoppel

16

equal

Defendants

protection

argue

challenge

Plaintiffs

to

cannot

the

classification

state

viable

of

judicial

17

estoppel and equitable estoppel claims, since these claims rely on the

18

Ogden Memo, which supports neither claim. (Mot. 15:16-18:11.) Both

19

claims are premised on allegations that the Ogden Memo contains the

20

Department of Justice’s “pledge[] not to use federal resources against

21

[medical marijuana] patients [who] [are] in compliance with state law”

22

and that Defendants’ enforcement of the CSA violates that pledge.

23

(Compl. ¶ 21.) Plaintiffs allege in their judicial estoppel claim that

24

Defendants’ “recent crackdown . . . against medical cannabis patients

25

flouts the representations made on the record by the Department of

26

Justice” in the Santa Cruz action about Defendants’ non-enforcement

27

policy of the CSA. (Compl. ¶ 22.) Plaintiffs allege in their equitable

28

estoppel claim that “patients[,] their cooperatives[,] and the landlords
15

1

of these cooperatives . . . reasonably relied on [the Ogden Memo] to

2

operate or continue to operate medical cannabis facilities or, in the

3

case

4

cooperatives which were in compliance with California state law,” but

5

now Defendants threaten to prosecute them under the CSA. (Compl. ¶ 26.)

6

of

landlords,

Defendants

to

lease

counter:

their

properties

“Plaintiffs

are

.

.

simply

.

to

patient

incorrect

in

7

asserting that the Department has ever issued a promise or guarantee in

8

any prior judicial proceeding that the CSA would never be enforced

9

against marijuana distributers or their landlords simply because they

10

claim to comply with state law.” (Mot. 16:17-19; Defs.’ Reply 6:20-23.)

11

In the . . . Ogden Memo, the Department of Justice
communicated
to
its
attorneys
that
certain
marijuana users and providers would be a lower
priority for prosecution than others. For example,
“[I]ndividuals with cancer or other serious
illnesses who use marijuana as part of a
recommended treatment regimen consistent with
applicable state law, or those caregivers in clear
and unambiguous compliance with existing state law
who provide such individuals with marijuana,” would
be a lower priority than “large-scale criminal
enterprises,
gangs,
and
cartels.”
But
the
Department also made clear that it did not intend
to “legalize” marijuana (nor could it). The Ogden
Memo states, for instance:

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The Department of Justice is committed to the
enforcement of the Controlled Substances Act
in all states. This guidance regarding
resource
allocation
does
not
“legalize”
marijuana or provide a legal defense to a
violation of federal law, nor is it intended
to create any privileges, benefits, or rights,
substantive or procedural, enforceable by any
individual,
party
or
witness
in
any
administrative, civil, or criminal matter. Nor
does clear and unambiguous compliance with
state law . . . create a legal defense to a
violation of the Controlled Substances Act.
A reasonable person, having read the entirety of
the Ogden Memo, could not conclude that the federal
government was somehow authorizing the production
and consumption of marijuana for medical purposes.
Any suggestion to the contrary defies the plain
language of the Memo.
16

1

Mont. Caregivers Ass’n, LLC v. United States, --- F. Supp. 2d ----, 2012

2

WL

3

omitted.)

169771,

at

*1-2

(D.

Mont.

Jan.

20,

2012)

(internal

citations

4

Since judicial estoppel does not apply unless “a party’s later

5

position [is] ‘clearly inconsistent’ with its earlier position,” and the

6

Ogden

7

Defendants’

8

enforcement policy stated in the Ogden Memo. New Hampshire v. Maine, 532

9

U.S. 742, 750 (2001) (citations omitted). Therefore, Plaintiffs fail to

10

Memo

does

not

contain

enforcement

of

a

the

promise
CSA

is

not
not

to

enforce

inconsistent

the

CSA,

with

the

state a viable judicial estoppel claim based on the Ogden Memo.

11

Plaintiffs argue in their opposition that their judicial

12

estoppel claim is also based on representations that Department of

13

Justice attorneys made at the October 30, 2009 hearing in the Santa Cruz

14

action,

15

language in the [Ogden Memo].” (Opp’n 8:25-27.) However, the transcript

16

of that hearing demonstrates that the Department of Justice did not make

17

representations about non-enforcement of the CSA beyond what is stated

18

in the Ogden Memo. (Pls.’ RJN Ex. 2.) Therefore, Plaintiffs do not state

19

a viable judicial estoppel claim based on the Ogden Memo or the

20

Department of Justice’s representations at the hearing in the Santa Cruz

21

action, and this claim is dismissed.

which

Plaintiffs

argue

“are

far

stronger

than

the

actual

22

Nor have Plaintiffs supported any other equitable estoppel

23

contention they assert with factual allegations sufficient to preclude

24

Defendants

25

equitably estopped, the movant for estoppel “must establish that the

26

government engaged in affirmative misconduct, and that the government’s

27

conduct has caused a serious injustice.” United States v. Bell, 602 F.3d

28

1074, 1082 (9th Cir. 2010) (internal quotation marks and citation

from

enforcing

the

CSA.

17

Before

the

government

may

be

1

omitted).

2

misrepresentation[.]”

3

omitted). Plaintiffs have not made this showing. Therefore, Plaintiffs’

4

equitable estoppel claim is not actionable and is dismissed.

5

Further,

“affirmative
Id.

misconduct

(internal

requires

quotation

an

marks

affirmative

and

citation

For the stated reasons, all of Plaintiffs’ claims have been

6

dismissed.

7

Complaint. (Opp’n 21:16.) This request is denied, since it is evident

8

that Plaintiffs’ claims are foreclosed by United States Supreme Court or

9

Ninth

However,

Circuit

Plaintiffs

precedent,

or

request

other

leave

authority

to

cited

file

in

an

this

amended

Order.

10

Further, neither Plaintiffs’ arguments nor the documents they submitted

11

in support of their claims evince that Plaintiffs could allege an

12

actionable claim even if they were given opportunity to amend their

13

Complaint. Since “any amendment would be futile, there [i]s no need to

14

prolong the litigation by permitting . . . amendment.” Lipton v.

15

Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002). Therefore,

16

Plaintiffs’ Complaint is dismissed with prejudice, and judgment shall be

17

entered in favor of Defendants.

18

Dated:

February 28, 2012

19
20
21

GARLAND E. BURRELL, JR.
United States District Judge

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23
24
25
26
27
28
18