Sinecio Zarazua v. Ricketts et al
MEMORANDUM AND ORDER - that Plaintiff's Complaint is dismissed without prejudice, and Judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSE ALFREDO SINECIO ZARAZUA, )
PETE RICKETTS, JEFF SESSIONS,
NEBRASKA STATE GOVERNMENT, )
and UNITED STATES DEPARTMENT )
OF JUSTICE ,
Plaintiff, Jose Alfredo Sinecio Zarazua , filed his Complaint (Filing No. 1) on
August 28, 2017, and has since been granted leave to proceed in forma pauperis
(Filing No. 5). The court now conducts an initial review of Plaintiff’s Complaint to
determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff complains it is illegal under Nebraska law for him to smoke marijuana
for pain management. He wants to see cannabis reclassified as medicine under federal
law. Plaintiff also seeks to recover damages for disability discrimination based on his
inability to obtain marijuana legally.1
II. LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
According to a physician’s letter attached to the Complaint (Filing No. 1 at
CM/ECF p. 6), Plaintiff has suffered from disabling back pain for several years.
dismiss a complaint or any portion of it that states a frivolous or malicious claim, that
fails to state a claim upon which relief may be granted, or that seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
III. DISCUSSION OF PLAINTIFF’S CLAIMS
Plaintiff recognizes that the Nebraska statutes criminalizing the possession of
marijuana are in accord with the federal Controlled Substances Act (“CSA”), which
classifies marijuana as a Schedule I drug. 21 U.S.C. § 812(c). “The CSA designates
marijuana as contraband for any purpose; in fact, by characterizing marijuana as a
Schedule I drug, Congress expressly found that the drug has no acceptable medical
uses.” Gonzales v. Raich, 545 U.S. 1, 27 (2005) (holding that application of CSA
provisions criminalizing manufacture, distribution, or possession of marijuana to
intrastate growers and users of marijuana for medical purposes did not violate
Commerce Clause). The CSA “authorizes procedures for the reclassification of
Schedule I drugs,” id. at 32, and is always subject to amendment or repeal by
Congress, but it is beyond the court’s powers to “reform” the law as requested by
Plaintiff (Filing No. 1 at CM/ECF p. 4). See Baker v. Carr, 369 U.S. 186, 210 (1962)
(“The nonjusticiability of a political question is primarily a function of the separation
of powers.”). It is the function of the judiciary “to apply statutes on the basis of what
Congress has written, not what Congress might have written.” United States v. Great
N. Ry. Co., 343 U.S. 562, 575 (1952).
Plaintiff suggests that the Constitution confers upon American citizens “the
right to choose our own medicine” (Filing No. 1 at CM/ECF p. 3). This is incorrect.
“The constitutional rights to privacy and personal liberty “do not give individuals the
right to obtain [unapproved drugs] free of the lawful exercise of government police
power.” Carnohan v. United States, 616 F.2d 1120, 1122 (9th Cir. 1980). “[T]the
decision by the patient whether to have a treatment or not is a protected right, but his
selection of a particular treatment, or at least a medication, is within the area of
governmental interest in protecting public health.” Rutherford v. United States, 616
F.2d 455, 457 (10th Cir. 1980). In particular, “there is no fundamental constitutional
right to import, sell, or possess marijuana ....” United States v. Fogarty, 692 F.2d 542,
547 (8th Cir. 1982) (upholding CSA’s classification of marijuana as Schedule I drug;
plaintiff failed to meet his heavy burden of proving that the classification bears no
rational relationship to a legitimate government purpose).
Finally, Plaintiff seeks to recover compensatory and punitive damages “for
discrimination of disability” by being denied access to medical marijuana (Filing No.
1 at CM/ECF p. 4). The court liberally construes this claim as being brought against
the State of Nebraska under Title II of the Americans With Disabilities Act (“ADA”),2
which provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services,
“Title II of the ADA is not applicable to the federal government.” Cellular
Phone Taskforce v. FCC, 217 F.3d 72, 73 (2d Cir. 2000).
programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132.3 While it might be possible to craft an argument that the
State should be required to accommodate Plaintiff’s alleged need to smoke marijuana
for pain management, see, e.g., Sak v. City of Aurelia, 832 F. Supp. 2d 1026 (N.D.
Iowa 2011) (enjoining enforcement of city ordinance prohibiting pit bull dogs with
respect to disabled plaintiff’s certified service animal), the fact remains that Congress
has classified marijuana as a Schedule I controlled substance. Because of this fact, it
simply is not possible to conclude that creating an exception for medical marijuana
in State law would be a “reasonable accommodation” under the ADA. “To conclude
that use of marijuana for medical purposes is not an illegal use of drugs under the
ADA would undermine the CSA’s clear statement that marijuana is an unlawful
controlled substance that has ‘no currently accepted medical use in treatment in the
United States.’ 21 U.S.C. § 812(b)(1)(B).” James v. City of Costa Mesa, 700 F.3d 394,
402 (9th Cir. 2012) (emphasis in original).
Plaintiff’s Complaint is frivolous, and granting him leave to amend would be
IT IS ORDERED that Plaintiff’s Complaint is dismissed without prejudice, and
Judgment will be entered by separate document.
DATED this 2nd day of October , 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
Because it is clear that no action will lie under the ADA, it is not necessary to
consider whether the State could be held liable for damages.
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