Boyd v. Santa Cruz County et al

Filing 88

ORDER RE 86 PLAINTIFF'S REQUEST FOR EXPRESS LEAVE OF THE COURT TO ADD ADDITIONAL PARTIES AND CLAIMS; NOTICE OF ERRATA; AND 87 REQUEST FOR JUDICIAL NOTICE. Signed by Judge Beth Labson Freeman on 11/6/2015. (blflc1S, COURT STAFF) (Filed on 11/6/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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MICHAEL BOYD,

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Case No. 15-cv-00405-BLF

Plaintiff,
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ORDER RE PLAINTIFF’S REQUEST
FOR EXPRESS LEAVE OF THE
COURT TO ADD ADDITIONAL
PARTIES AND CLAIMS; NOTICE OF
ERRATA; AND REQUEST FOR
JUDICIAL NOTICE

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[Re: ECF 86, 87]

v.
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SANTA CRUZ COUNTY, et al.,

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United States District Court
Northern District of California

Defendants.

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Before the Court are two documents filed by Plaintiff on October 30, 2015: (1) Plaintiff’s

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Request for Express Leave of the Court to Add Additional Parties and Claims, Notice of Errata;

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and (2) Plaintiff’s Request for Judicial Notice in Support for Request for Express Leave of the

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Court to Add Additional Parties and Claims, Notice of Errata. See ECF 86, 87. Those documents

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are addressed as follows.

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There has been a great deal of motion practice since this case was removed to federal

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district court, most of which need not be described in detail. As relevant here, the Court issued an

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order on October 13, 2015, dismissing Plaintiff’s first amended complaint for failure to state a

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federal claim (“Dismissal Order”).1 Dismissal Order at 7-8, ECF 81. A number of Plaintiff’s

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federal claims appeared to rest upon an asserted federal constitutional right to access to cannabis.

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Id. The Court concluded that no such right exists in light of Congress’s classification of cannabis

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as a Schedule I drug under the Controlled Substances Act (“CSA”). Id. The Court also found

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inadequate federal claims asserting conclusorily that Defendants had held elections regarding

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cannabis business taxes in retaliation for Plaintiff’s exercise of his free speech rights, and federal

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The Court also directed Plaintiff to provide a more definite statement pursuant to Federal Rule of
Civil Procedure 12(e). See Dismissal Order at 9.

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claims consisting only of labels unsupported by even conclusory factual allegations. Id.
The Court granted Plaintiff leave to amend in light of his pro se status and because his

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pleading had not previously been tested by a motion to dismiss. Dismissal Order at 8, ECF 81.

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The Court directed Plaintiff to file any amended pleading on or before November 4, 2015, id. at 9,

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but thereafter it extended Plaintiff’s deadline for amendment to November 18, 2015, Order

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Granting Plaintiff’s Request for an Extension of Time Etc. at 1, ECF 84. In its order extending the

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deadline for amendment, the Court clarified that Plaintiff had been granted leave to amend only as

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to those parties and claims alleged in the first amended complaint and that Plaintiff may not add

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additional parties or claims without express leave of the Court. Order Granting Plaintiff’s Request

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United States District Court
Northern District of California

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for an Extension of Time Etc. at 2, ECF 84.
Plaintiff now seeks leave of the Court to add additional parties and claims when he amends

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his pleading. Specifically, Plaintiff requests leave to add as additional plaintiffs three individuals

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named Brian Lee, Vincent Calderon, and Vincent Pastore. Boyd Decl. ¶ 8, ECF 86. Plaintiff also

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seeks leave to add as additional defendants three county employees named Kent Edler, Omar

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Rodriguez, and Robin Bolster; a neighbor of proposed plaintiff Brian Lee named Ken Moore; and

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California Governor Edmund Gerald “Jerry” Brown. Id. ¶¶ 10, 14. Finally, Plaintiff seeks leave

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to add an additional claim “in light of the recently enacted California Assembly Bill No. 266

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Chapter 689 (2015) which plaintiff alleges impermissibly amends the CUA and in that respect is

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invalid under California Constitution article II, section 10, subdivision (c).” Id. ¶ 14.

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Plaintiff’s request for leave to amend is defective in a number of ways. First, it was not

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brought as a duly noticed motion as required under this Court’s Civil Local Rules. See Civ. L.R.

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7-1, 7-2. Second, Plaintiff does not explain how the addition of the proposed new plaintiffs and

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defendants would cure the defect that led to the dismissal of the first amended complaint, that is,

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the failure to plead a viable federal claim. Finally, the claim that Plaintiff wishes to add is a state

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law claim arising out of California legislation and the California Constitution. Unless and until

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Plaintiff can allege a viable federal claim, the addition of new state law claims or parties thereto

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would serve no purpose. Accordingly, Plaintiff’s motion to add parties and claims is hereby

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DENIED WITHOUT PREJUDICE to renewal if and when Plaintiff states a viable federal claim.
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Plaintiff also requests “errata” with respect to the Court’s dismissal order and order

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extending the deadline for amendment. An “erratum” is “[a]n error in printing or writing.”

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Oxford Dictionaries Online, http://www.oxforddictionaries.com/us/definition/american_english/

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erratum (last visited November 5, 2015). Plaintiff points to such an error in the Court’s order

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extending the deadline for amendment, in which the Court stated that the next case management

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conference is set for January 21, 2015 instead of January 21, 2016. The Court hereby CLARIFIES

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that the case management conference is set for January 21, 2016.
With respect to the Court’s dismissal order, Plaintiff asserts that the Court erred in

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concluding that there is no federal constitutional right to access to cannabis. In making that

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assertion, Plaintiff does not give notice of an erratum, i.e., a clerical error, but rather seeks

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United States District Court
Northern District of California

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substantive reconsideration of the Court’s ruling. Under Civil Local Rule 7-9, a party may seek

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leave to file a motion for reconsideration only upon showing the existence of a material difference

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in fact or law from that which was presented to the Court, or the emergence of new material facts

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or a change in law occurring after the Court’s order, or a manifest failure by the Court to consider

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material facts or dispositive legal arguments. Civ. L.R. 7-9(b). Plaintiff appears to be arguing a

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material difference in law, citing a recent order issued by another court in this district, United

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States v. Marin Alliance for Medical Marijuana, No. C 98-00086 CRB, 2015 WL 6123062 (N.D.

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Cal. Oct. 19, 2015), and California Assembly Bill No. 266 Chapter 689. The Court hereby

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GRANTS Plaintiff’s request for judicial notice of those documents. See Reyn’s Pasta Bella, LLC

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v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court

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filings and other matters of public record.”).2 However, Plaintiff is mistaken as to their import.

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In Marin Alliance, the court recognized expressly that marijuana continues to be a

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Schedule I drug under the CSA and on that basis it denied Marin Alliance’s motion to dissolve a

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permanent injunction that had been entered against Marin Alliance in 2002. See United States v.

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Marin Alliance for Medical Marijuana, No. C 98-00086 CRB, 2015 WL 6123062, at *1, 4 (N.D.

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The Court likewise GRANTS Plaintiff’s request for judicial notice of People v. Kelly, 47 Cal. 4th
1008 (2010), in connection with Plaintiff’s request for leave to add Governor Brown as a
defendant in this action.
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Cal. Oct. 19, 2015). The court acknowledged the new directive of Congress in Section 538 of the

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Consolidated and Further Continuing Appropriations Act of 2015, Pub. L. 113-235, 128 Stat. 2130

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(2014), which prohibits the Department of Justice from expending funds to enforce laws that

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would interfere with the ability of states such as California to implement state laws authorizing the

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use, distribution, possession, or cultivation of marijuana. Id. (citing 2015 Appropriations Act §

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538). The court concluded that enforcement of the permanent injunction must be consistent with §

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538 and thus that the injunction could be enforced only to the extent that Marin Alliance was in

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violation of California law. Id. at *6. Nothing in Marin Alliance, which addresses the effect of

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Congress’s decision not to expend funds to prevent states such as California from implementing

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their own state laws regarding use, distribution, possession, or cultivation of marijuana, suggests

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United States District Court
Northern District of California

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the existence of a federal constitutional right to access to marijuana.

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Plaintiff’s reliance on Assembly Bill 266 likewise is unavailing, as state legislation cannot

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establish a federal right to access to marijuana. Accordingly, Plaintiff’s de facto request for

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reconsideration of the dismissal of his first amended complaint for lack of a viable federal claim is

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DENIED.
ORDER

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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(1)

Plaintiff’s request for leave to add additional parties and claims is DENIED

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WITHOUT PREJUDICE to renewal of the request by proper noticed motion if and

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when Plaintiff states a viable federal claim;

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(2)

Plaintiff’s request for judicial notice is GRANTED;

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(3)

The Court hereby CLARIFIES that the next case management conference is set on
January 21, 2016; and

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(4)

Plaintiff’s de facto motion for leave to seek reconsideration of the dismissal of his
first amended complaint for lack of a viable federal claim is DENIED.

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Dated: November 6, 2015

______________________________________
BETH LABSON FREEMAN
United States District Judge
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