Seratt v. Oliver et al
MEMORANDUM AND ORDER... For the foregoing reasons, the motion for temporary restraining order/preliminary injunction is DENIED and the motion for immediate hearing is denied as moot. Signed by Honorable Stephen N. Limbaugh, Jr on 2/28/2012. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RUSSELL D. OLIVER, et al.,
Case No. 1:11CV00126 SNLJ
MEMORANDUM AND ORDER
This case is before the Court on pro se plaintiff’s Motion for Temporary Restraining
Order and/or Preliminary Injunction, #16, and Motion for Immediate Hearing, #17. Defendants
Oliver and Hefner – the only defendants served to date – have filed a response in opposition,
#22, but plaintiff has not filed a reply thereto though granted leave to do so by February 24, 2012.
Plaintiff requests this Court to enter an order enjoining the enforcement and application
of Missouri House Bill 641, which is an amendment to § 195.017, RSMo, effective August 28,
2011, adding various substances to the list of Schedule I controlled substances within that statute,
and in particular, a number of “synthetic cannabinoids” defined by chemical composition. This
amendment, plaintiff claims, is “vague and ambiguous” and
is written in such a fashion as to authorize defendants, and each of them, to forbid
the use, sale, distribution and manufacturing of, not only the unlawful substances
it is forecast to forbid, but also to forbid the sale, use, distribution and
manufacturing of laboratory certified, legitimate and lawful natural health
Plf’s Motion for TRO, #16, pp. 4-5.
The lawful natural health-enhancing products to which plaintiff refers are “incense” and
“bath salts” that plaintiff wishes to sell commercially. Plaintiff also asks for injunctive relief
prohibiting defendants from engaging in any unconstitutional or otherwise unlawful acts directed
toward him during this litigation. This latter claim, however, emanates from and is dependent
upon the success of plaintiff’s claim that the H.B. 641 amendment is unlawful in the first place.
Plaintiff’s right to injunctive relief is subject to four factors: “(1) the probability of
success on the merits, (2) the threat of irreparable harm to the movant, (3) the balance between
the harm and the injury that granting the injunction will inflict on other interested parties, and (4)
the public interest.” Lankford v. Sherman, 451 F.3d 496, 503 (8th Cir. 2006). Furthermore, “the
party seeking injunctive relief bears the burden of proving these factors.” Id. After careful
consideration of plaintiff’s motion, and in view of the fact that plaintiff’s allegations and
arguments are largely conclusory and without citation to authority, it is clear that plaintiff has
failed in meeting that burden.
First, the probability of success on the merits is little or none. Plaintiff’s contention that
H.B. 641 and its inclusion of synthetic cannabinoids into the list of Schedule I controlled
substances is “vague and ambiguous” makes no sense. The amendment to the statute sets out
express and specific references to each chemical compound that is prohibited, § 195.017.2(4)(ll),
so that there can be no question about which substances are prohibited and which are not. To the
extent that plaintiff’s real claim is that the statute prohibits both unlawful substances and what he
deems lawful substances – i.e., “lawful natural health enhancing products” (the incense and bath
salts he wishes to sell) – the probability of success is no greater. This appears to be a challenge
to the police power of the state to regulate the use and dissemination of substances based on their
perceived harmful effects, rather than a challenge based on a vague and ambiguous statute. After
all, plaintiff makes no claim that the incense and bath salts that he wishes to sell are not covered
under the statute, just that they should not be. In any event, the State of Missouri has full
authority in the exercise of its broad police powers and in the interest of public health and
welfare to impose criminal sanctions for the manufacture, sale and possession of controlled
substances, including plaintiff’s incense and bath salts. Robinson v. State of California, 370 U.S.
660, 664 (1962).
Plaintiff fares no better on the other three factors. In regard to any threat of irreparable
harm, it is well-settled that an injunction will not lie if plaintiff has an adequate remedy at law,
i.e., an action for monetary damages. Frank K. Hall & Co. v. Alexander & Alexander, Inc., 974
F.2d 1020, 1025 (8th Cir. 1992). In fact, plaintiff has asserted claims for monetary damages in
this very lawsuit for the same conduct that he claims might occur in the future. By these claims,
in other words, he tacitly concedes that damages will make him whole. The other two factors –
(3) the balance between the harm and the injury that granting the injunction will inflict on other
interested parties, and (4) the public interest – overlap completely because in this instance, the
public interest is the same interest as that of the other interested parties, the named defendants.
The general public has an interest in prohibiting the manufacture, sale and possession of
potentially dangerous and harmful drugs and in enforcing laws addressed to that purpose.
Robinson v. State of California, 370 U.S. at 664. Obviously, these measures are for the
protection of the public health and welfare, and this consideration alone is sufficient to outweigh
any harm that may come to plaintiff.
For the foregoing reasons, the motion for temporary restraining order/preliminary
injunction is DENIED and the motion for immediate hearing is denied as moot.
SO ORDERED this 28th day of February, 2012.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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