King et al v. Liquor and Cannabis Board of the State of Washington et al

Filing 91

ORDER. Plaintiffs' motion for injunctive relief, Dkt. # 2 , is DENIED. Defendants' motion to dismiss, Dkt. # 28 , is GRANTED. Within 21 days of this Order, Plaintiffs may file an amended complaint consistent with this Order. Plaintiffs' motion for extension of time to respond, Dkt. # 29 , is GRANTED. Plaintiffs' motion for leave to file a second amended complaint, Dkt. # 71 , is DENIED as moot. Signed by Judge Richard A. Jones. (PM) cc: Plaintiff Novak via USPS

Case 2:20-cv-01494-RAJ Document 91 Filed 09/08/21 Page 1 of 12

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HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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Christopher King, A/K/A KINGCAST, and
JOHN NOVAK
Plaintiffs,

v.

LIQUOR AND CANNABIS BOARD OF
THE STATE OF WASHINGTON; JANE
RUSHFORD, Chair of the Liquor and
Cannabis Board; RICK GARZA, Director
of the Liquor and Cannabis Board; JAY
INSLEE, Governor of Washington;
ROBERT FERGUSON, Washington
Attorney General; WILLIAM P. BARR,
United States Attorney General; and
OFFICE OF NATIONAL DRUG
CONTROL POLICY

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ORDER

Defendant.

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No. 2:20-cv-01494-RAJ

I.

INTRODUCTION

This matter comes before the Court on four motions: (1) Plaintiffs’ Motion for
Injunctive Relief, Dkt. # 2; (2) Defendants’ Motion to Dismiss Pursuant to FRCP 12(b)1,
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2, Dkt. # 28; (3) Plaintiffs’ Motion for Extension of Time to Respond to Motion to

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Dismiss, Dkt. # 29; and (4) Plaintiffs’ Motion for Leave to File Second Amended

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Complaint, Dkt. # 71. Having reviewed the parties’ briefing, the remaining record, and

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relevant law, the Court DENIES Plaintiffs’ Motion for Injunctive Relief, Dkt. # 2;

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GRANTS Plaintiffs’ Motion for Extension of Time to Respond to Motion to Dismiss,

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Dkt. # 29; GRANTS Defendants’ Motion to Dismiss, Dkt. # 28; and DENIES as moot

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Plaintiffs’ Motion for Leave to File Second Amended Complaint, Dkt. # 71.
II.

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BACKGROUND

Plaintiff Christopher King, A/K/A Kingcast, is a recreational cannabis user and

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Plaintiff John Novack (collectively, “Plaintiffs”) is a medical marijuana user. Dkt. # 1 at

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2. Both individuals “routinely purchase cannabis products and pay[] the requisite sales

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tax to do so.” Id. They are members of the Justice & Accountability in Government for

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Washington, a state lobbying group whose mission is “to change the culture and forge

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new laws, if necessary, to achieve equality of rights,” among other things. Id. The

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group’s stated purpose is “to educate persons as to their constitutional rights and to take

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all lawful actions to secure the exercise thereof.” Id.

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On October 9, 2020, Plaintiffs filed a complaint against Defendants Washington

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State Liquor and Cannabis Board (“LCB”), Jane Rushford, Chair of LCB, and Rick

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Garza, Director of LCB. Dkt. # 1. The LCB is a state agency responsible for issuing

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licenses to producers, processors, and retailers of marijuana and adopting rules related to

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labeling, safety protocols, and methods of production, among others. Dkt. # 28 at 2;

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RCW 69.50.342. Plaintiffs allege that LCB officers cannot enforce criminal cannabis

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statutes because Washington state law limits the authority of LCB peace officers to the

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enforcement of liquor statutes. Dkt. # 7 at 6 (citing RCW 66.44.010). Plaintiffs also

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allege that LCB is acting ultra vires by allowing its agents, who do not have Basic Law

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Enforcement Academy (“BLEA”) certification or training, to enforce criminal cannabis

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statutes. Dkt. # 7 at 7 (citing RCW 10.93). Plaintiffs further claim that “the LCB

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imperils cannabis users by failing to conduct periodic testing to detect impurities, mold

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and other contaminants.” Id. at 13. Plaintiffs request the following forms of relief:

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(1) Preliminary and permanent injunctions against non BLEA-trained personnel

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from assuming any enforcement authority;

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(2) Preliminary and permanent injunctions against pending enforcement cases

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brought by LCB agents who did not have BLEA training prior to the initiation of

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cases;

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(3) A recall of all criminal cases that were brought against anyone “under the

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artificially-enlarged LCB ambit such that any case involving a non BLEA-trained

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Agents be mooted, nunc pro tunc”;

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(4) An order of prohibition preventing LCB from using the word “police” to

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describe its agents unless every LCB agent has undergone BLEA certification or

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superseding legislation confers such status to all LCB agents;

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(5) An order establishing “known and published testing regimen with respect to

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pesticides, herbicides, mold, fungus, and other “hot pot” issues that recklessly

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endanger the health of Washington’s Cannibus consumers”; and

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(6) Costs and other relief as the Court may deem appropriate.

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Id.
The same day, Plaintiffs filed a motion for preliminary injunction seeking this

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relief. Dkt. # 2. A week later, Plaintiffs filed an amended complaint expanding its list of

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defendants to include Jay Inslee, Governor of Washington; Robert Ferguson, Washington

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State Attorney General; William P. Barr, United States Attorney General; and the Office

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of National Drug Control Policy (“ONDCP”). Dkt. # 7. Plaintiffs assert the same claims

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and seek the same relief requested in their original complaint. Id.

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On November 19, 2020, Defendants LCB, LCB Chair Rushford, LCB Director

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Garza, Washington Governor Inslee, and Washington State Attorney General Ferguson

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(collectively, “State Defendants”) moved to dismiss the action for lack of jurisdiction

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under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Dkt. # 28. Plaintiffs failed

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to timely respond by the deadline of December 7, 2020.

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Almost two months later, on February 1, 2021, Plaintiffs filed a motion seeking

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additional time to file a response, claiming that “they did not see any Notification of a

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Motion to Dismiss.” Dkt. # 29. State Defendants opposed an extension. Dkt. # 34.
III.

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DISCUSSION

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The Court will address Plaintiffs’ motion seeking preliminary injunction, Dkt. # 2,

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followed by Plaintiffs’ motion for an extension of time to respond, Dkt. # 29. The Court

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will then address Defendants’ motion to dismiss, Dkt. # 28, and Plaintiffs’ motion for

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leave to file a second amended complaint, Dkt. # 71.

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A. Motion for Preliminary Injunction

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Preliminary injunctive relief is “an extraordinary remedy that may only be

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awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat.

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Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). As an extraordinary remedy, it is “never

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awarded as of right.” Id. The purpose of a preliminary injunction is to preserve the

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status quo and the rights of the parties until a final judgment on the merits can be

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rendered. See U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010).

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The legal standard for a preliminary injunction requires plaintiffs to show that they are

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(1) likely to succeed on the merits, (2) likely to suffer irreparable harm in the absence of

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preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in

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the public interest. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).

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The Ninth Circuit makes clear that a showing of immediate irreparable harm is

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essential for preliminary injunctive relief. See Caribbean Marine Servs. Co. v. Baldrige,

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844 F.2d 668, 674 (9th Cir. 1988) (“Speculative injury does not constitute irreparable

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injury sufficient to warrant granting a preliminary injunction.”). To obtain injunctive

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relief, “plaintiffs must establish that irreparable harm is likely, not just possible, in order

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to obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d

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1127, 1131 (9th Cir. 2011).
Here, Plaintiffs claim that “[t]o be subject to investigation, arrest and prosecution

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by persons or an entity not authorized to do so inherently involves Irreparable Harm to

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people whose entire professional reputations stand to be destroyed.” Dkt. # 2 at 10.

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Plaintiffs’ contend that injunctive relief “is necessary because without it Plaintiffs and the

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general populous [sic] are subject to the Due Process 5th/14th Amendment Concerns under

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42 U.S.C § 1983.” Id. at 9.

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Although it is “well established that the deprivation of constitutional rights

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unquestionably constitutes irreparable injury,” Melendres v. Arpaio, 695 F.3d 990, 1002

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(9th Cir. 2012), the Court finds that Plaintiffs’ hypothetical risk of injury does not.

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Plaintiffs’ concern about possible harm to unidentified individuals in the general

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populace resulting from a hypothetical investigation, arrest, and prosecution is purely

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speculative. Plaintiffs have not alleged that they have been unlawfully detained or

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prosecuted by LCB officers nor established that they are at substantial risk of such

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detention or prosecution. Plaintiffs thus fail to establish a likelihood of irreparable harm

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or demonstrate a risk of immediate irreparable harm in the absence of preliminary

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injunctive relief.

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In contrast, the Supreme Court in Elrod v. Burns concluded that the respondents

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had established injury for purposes of injunctive relief based on a deprivation of

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constitutional rights by showing that they had been discharged or threatened with

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discharge from their public service jobs based solely on their political affiliation or

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nonaffiliation. 427 U.S. 347, 349 (1976). The Supreme Court held that injunctive relief

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was appropriate because their “First Amendment interests were either threatened or in

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fact being impaired.” Id. at 373. The violation of constitutional rights was an immediate

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harm: the respondents were being discharged or threatened with discharge at the time

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relief was sought. Id. This clearly demonstrates a likelihood of immediate of harm to the

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party seeking an injunction.

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The Ninth Circuit in Melendres v. Arpaio similarly found that an allegation of

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constitutional rights violations constituted irreparable harm. 695 F.3d at 1002. The

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plaintiffs in Melendres had been unlawfully detained pursuant to a policy of racial

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profiling of Latino persons and practice of pretextually stopping and detaining Latino

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drivers. Id. at 994. The defendants, a sheriff and sheriff’s office, represented that they

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had authority to detain individuals solely based on their immigration status even though it

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was not a criminal matter, and would continue to operate under that belief. Id. at 1002.

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Based on these representations, the district court concluded that the plaintiffs were likely

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to be stopped or unlawfully detained again. Id. This likelihood of injury was sufficient

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to warrant a preliminary injunction. Id. The Ninth Circuit affirmed. Id.

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The allegations here are speculative; they do not establish a likelihood of

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immediate irreparable harm. A general concern about the possibility of constitutional

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rights violations does not warrant the extraordinary remedy of preliminary injunctive

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relief. Absent a showing of irreparable harm, the Court need not consider the other

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Winter factors. The Court therefore DENIES Plaintiffs’ motion for preliminary

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injunction.

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B.

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Plaintiffs’ Motion for Continuance to Respond to Motion to Dismiss
The Court considers Plaintiffs’ Motion for Continuance as a motion for relief from

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a deadline under Local Rule 7(j) of the Western District of Washington. A motion for

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relief from a deadline “should, whenever possible, be filed sufficiently in advance of the

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deadline to allow the court to rule on the motion prior to the deadline.” LCR 7(j). In the

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event of an unforeseen emergency, the parties are instructed to contact the adverse party,

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meet and confer regarding an extension, and file a stipulation with the court. Id. In the

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event of a true emergency, the parties are expected to stipulate to an extension. Id.

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Here, the State Defendants filed a motion to dismiss on November 19, 2020. Dkt.

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# 28. The deadline for Plaintiffs to file a response was December 7, 2020. LCR 7(d)(3).

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Plaintiffs failed to file a response or a motion for relief from the deadline before the

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deadline. Plaintiffs did not move for relief from the deadline until February 1, 2021,

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almost two months after the deadline had passed. Dkt. # 29. Defendants filed an

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opposition to the motion a week later. Dkt. # 34.
In their motion seeking an extension of time to file their response, Plaintiffs

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concede that there was no emergency situation precluding their timely filing of a

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response to Defendants’ motion to dismiss. Dkt. # 35 at 2. Instead, they explain, “it was

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simply that Plaintiffs did not see the State Defendants’ Motion in their emails and when

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Plaintiff King scanned down the ECF online after the Motion was filed he apparently had

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not gone all the way to the bottom and so he missed it.” Dkt. # 35 at 2.
The Court finds this explanation untenable, particularly given the fact that

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Defendants informed Plaintiffs of their intent to file a motion to dismiss and met and

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conferred with Plaintiffs to discuss the merits prior to filing the motion. Dkt. # 28-1 ¶ 4;

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Dkt. # 34 at 2. Plaintiff King was then served with the motion to dismiss via e-filing, and

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Plaintiff Novack was served via First Class U.S. Mail. Dkt. # 34 at 2. Plaintiffs’ failure

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to respond because they simply “did not see” it is inexcusable.

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Nevertheless, the Court’s preference for judgment on the merits will, in this

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instance, preclude denial for failure to timely respond or seek relief from a deadline. The

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Court will not, however, hesitate to strike or deny any untimely pleadings in the future.

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The Court GRANTS Plaintiffs’ Motion for Continuance.

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C.

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Defendants’ Motion to Dismiss
Defendants move to dismiss Plaintiffs’ claims for lack of subject matter

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jurisdiction under Rule 12(b)(1) and personal jurisdiction under Rule 12(b)(2). Dkt. # 28

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at 2. Defendants first argue that there is no subject matter jurisdiction because the

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amended complaint relies on the resolution of questions of state law, not federal law. Id.

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at 1-2. Alternatively, Defendants argue that the Eleventh Amendment or qualified

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immunity bars suit against all Defendants. Id. at 4. The Court will consider each

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argument in turn.

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Subject Matter Jurisdiction

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District courts have “original jurisdiction of all civil actions arising under the

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Constitution, laws, or treatises of the United States.” 28 U.S.C. § 1331. “The party

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asserting federal subject matter jurisdiction bears the burden of proving its existence.”

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Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). When

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reviewing a motion to dismiss, a district court “must accept all factual allegations of the

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complaint as true and draw all reasonable inferences in favor of the nonmoving party.”

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Bernhardt v. Cty. of Los Angeles, 279 F.3d 862, 867 (9th Cir. 2002) (internal citation and

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quotations omitted). To determine whether a case arises under § 1331, a court must

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consider “if a well-pleaded complaint establishes either that federal law creates the cause

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of action or that the plaintiff’s right to relief necessarily depends on resolution of a

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substantial question of federal law.” Empire Healthchoice Assur., Inc. v. McVeigh, 547

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U.S. 677, 690 (2006) (internal quotations and citation omitted).

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Even accepting Plaintiffs’ factual allegations as true, the Court finds that Plaintiffs

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have not met their burden to establish federal subject matter jurisdiction. As Defendants

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correctly note, Plaintiffs’ claims and requested relief all depend on the interpretation of

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Washington state laws. Dkt. # 28 at 5. Plaintiffs allege that Defendants run afoul of state

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laws, specifically RCW 66.44.010, which provides enforcement authority only with

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respect to liquor regulations, and RCW 69.50.500, which excludes LCB officers from

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engaging in peace officer actions. Dkt. # 7 ¶¶ 14-21. State law, as opposed to federal

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law, “creates the cause[s] of action” asserted by Plaintiffs. Cook Inlet Region, Inc. v.

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Rude, 690 F.3d 1127, 1130 (9th Cir. 2012). Plaintiffs’ conclusory allegations to the

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contrary are unavailing.

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The Court must next determine whether the plaintiff’s right to relief necessarily

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depends on resolution of a substantial question of federal law. 547 U.S. at 690. In their

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request for relief, Plaintiffs seek to enjoin behavior that, they assert, is not permitted

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under Washington law, to establish a testing regimen for cannabis products, and to ensure

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that LCB officers are complying with the state laws. Dkt. # 7 at 17-18. Their right to

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relief wholly depends on resolution of Washington state law, not a “substantial question

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of federal law.” 547 U.S. at 690. Failing to establish that federal law creates the cause of

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action or that Plaintiffs’ right to relief “necessarily depends on resolution of a substantial

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question of federal law,” Plaintiffs fail to demonstrate that the case invokes federal

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question jurisdiction under 28 U.S.C. § 1331.

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Furthermore, the Court notes that Plaintiffs voluntarily dismissed federal

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Defendants United States Attorney General William Barr and the ONDCP on April 25,

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2021. Dkt. # 56. The remaining defendants are a state agency and state officials.

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Plaintiffs’ withdrawal of all federal defendants undermines Plaintiffs’ argument that the

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“interplay between the State and Federal authorities clearly shows the presence of a

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Federal Questions pursuant to 28 USC § 1331.” Dkt. # 32 at 2. In the absence of federal

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question jurisdiction under § 1331, the Court lacks subject matter jurisdiction over

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Plaintiffs’ claims.

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2.

Personal Jurisdiction

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Defendants contend that, in the alternative, the Court should dismiss all claims

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against Defendants because the Eleventh Amendment bars all claims against the LCB as

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a state agency and the named state officials in their official capacities. Dkt. # 28 at 6-7.

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The Eleventh Amendment limits the power of federal courts to decide certain claims

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against states. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119 (1984). It

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states that “[t]he Judicial power of the United States shall not be construed to extend to

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any suit in law or equity, commenced or prosecuted against one of the United States by

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Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.

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amend. XI. In considering a motion to dismiss based on personal jurisdiction, a court

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must take all uncontroverted allegations in the complaint as true. Schwarzenegger v.

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Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).

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Defendants correctly note that a state’s immunity under the Eleventh Amendment
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extends to its agencies and departments. See 465 U.S. at 100. Defendant LCB, a state

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agency, created pursuant to RCW 66.08.012, is immune from suit in federal court unless

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it consents to such an action. See id. Because the LCB has not waived its immunity, the

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Court lacks jurisdiction over claims against the LCB. The LCB is therefore dismissed.

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Eleventh Amendment immunity is similarly extended to state officials who allegedly

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violated state law in carrying out their official responsibilities. Id. at 121. Plaintiffs’

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claims against the Governor of Washington, the Attorney General of Washington, and the

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LCB’s Chair and Executive Director in their official capacities are thereby dismissed.

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With respect to Plaintiffs’ claims against the named state officials in their personal

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capacities, Defendants assert that they are entitled to qualified immunity. Dkt. # 28 at 7-

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8. Qualified immunity “shields Government officials from liability for civil damages

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insofar as their conduct does not violate clearly established statutory or constitutional

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rights.” Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (internal citation omitted). To

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determine whether state officials are entitled to qualified immunity, the Court must

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consider whether the facts alleged by Plaintiffs make out a violation of a constitutional

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right and whether the right at issue was “clearly established” at the time of the alleged

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violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Court first considers

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whether facts alleged by Plaintiffs, pursuant to Rule 12(b)(6), establish a violation of a

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constitutional right. Id.

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In the amended complaint, Plaintiffs set forth their argument that LCB has no

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authority to enforce cannabis, citing Washington statutes and failed legislative efforts of

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the LCB to expand their authority. Dkt. # 7 ¶¶ 14-22. Plaintiffs then briefly describe the

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observations of a declarant who would testify that his role as an LCB agent was

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“essentially a fake cop.” Id. ¶¶ 23-24. Next, Plaintiffs again describe historical efforts to

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expand the authority of LCB agents—through repeated attempts to amend statutes—and

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the limitations of current statutes. Id. ¶¶ 25-48. Plaintiffs then shift focus to describe

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LCB’s failure to conduct safety testing of cannabis products and highlight the dangers of

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such a failure. Id. ¶¶ 49-54. They briefly describe Plaintiff Novak’s health issues, his

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reliance on medical marijuana, and the difficulties in obtaining information about

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different strains of marijuana due to changes in state law. Id. ¶¶ 55-62. Finally, Plaintiffs

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note that ten legislators have “condemned the overall toxic and dysfunctional atmosphere

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at LCB,” that the Washington State Attorney General “has successfully prosecuted a case

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involving ultra vires misconduct by the U.S. Post Office,” and “the LCB has already

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publicly acknowledged the fact that they [sic] Agency lacks authority and that its Agents

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need to undergo BLEA training.” Id. ¶¶ 64-66.

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In these almost ten pages of factual allegations, however, Plaintiffs fail to allege

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any specific actions taken by the named state officials in their personal capacity that

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constitute a deprivation of constitutional rights. They express concern about potential

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misuse of authority and ultra vires activity, but allege no facts demonstrating such

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activity. The allegations are conclusory, speculative, and fail to demonstrate a violation

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of substantive and procedural due process violations under the Fifth and Fourteenth

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Amendment based on the conduct of these officials. See Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 545 (2007) (holding that “a plaintiff’s obligation to provide the ‘grounds’ of his

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‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

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recitation of a cause of action’s elements will not do.”) Absent factual allegations

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showing how the named state officials have deprived Plaintiffs of their constitutional

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rights, the Court finds that Defendant state officials are entitled to qualified immunity.

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As such, claims against the remaining Defendants are dismissed. Defendants’ motion to

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dismiss is GRANTED.

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Plaintiffs may, however, amend the complaint. “Unless it is absolutely clear that

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no amendment can cure the defect . . . a pro se litigant is entitled to notice of the

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complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.”

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Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). The Court

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therefore grants Plaintiffs twenty-one (21) days to file an amended complaint that states

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a valid claim for relief consistent with this Order. If Plaintiffs fail to timely comply with

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this Order by filing an amended complaint that corrects the deficiencies noted above, the

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Court will dismiss this action without leave to amend. For these reasons, the Court

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DENIES as moot Plaintiffs’ motion for leave to file a second amended complaint, Dkt.

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# 71.
IV.

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CONCLUSION

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For the reasons stated above, the Court ORDERS as follows:

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(1) Plaintiffs’ motion for injunctive relief, Dkt. # 2, is DENIED;

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(2) Defendants’ motion to dismiss, Dkt. # 28, is GRANTED. Within 21 days of

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this Order, Plaintiffs may file an amended complaint consistent with this Order.

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(3) Plaintiffs’ motion for extension of time to respond, Dkt. # 29, is GRANTED;

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(4) Plaintiffs’ motion for leave to file a second amended complaint, Dkt. # 71, is

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DENIED as moot.

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DATED this 8th day of September, 2021.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 12