Free Proposed Order - District Court of California - California

Case 4:07-cv-03885-CW

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Filed 01/31/2008

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JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division MICHAEL T. PYLE (CSBN 172954 ) [email protected] Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7322 FAX: (415) 436-6748 Attorneys for Defendants Scott N. Schools, former U.S. Attorney for the Northern District of California and Karen P. Tandy, former Administrator, U.S. Drug Enforcement Administration UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION JOHN PHILLIPS, ) ) Plaintiff, ) ) v. ) ) CITY OF OAKLAND, CALIFORNIA, ) KAREN P. TANDY, Administrator, U.S. ) Drug Enforcement Administration, SCOTT ) N. SCHOOLS, U.S. Attorney for the ) Northern District of California, ARNOLD SCHWARZENEGGER, Governor of the State of California, Defendants. No. 07-03885 CW [PROPOSED] ORDER GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS Date: March 13, 2008 Time: 2:00 p.m. Courtroom: 2 Hon. Claudia Wilken

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Defendants Scott N. Schools, former United States Attorney for the Northern District of California and Karen P. Tandy, former Administrator of the United States Drug Enforcement Administration's (the "Federal Defendants") motion to dismiss the complaint herein having regularly come on for hearing before the Court, and having read and considered the papers submitted in support thereof and in opposition thereto, and the parties having been afforded the opportunity to be heard, and good cause appearing therefor, //
[PROPOSED] ORDER GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS 1 07-03885 CW

Case 4:07-cv-03885-CW

Document 24

Filed 01/31/2008

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IT IS HEREBY ORDERED that the Federal Defendants' motion to dismiss the complaint herein is granted with prejudice. The Court dismisses Plaintiff's claim that the Court should impanel a grand jury on behalf of Plaintiff on the ground that Plaintiff has not set forth the requisite "clear basis in fact and law" for such an action. Moreover, the Court declines to exercise its discretion to give Plaintiff the relief he requests in light of the fact that his business operation is illegal under federal law. The Court further holds that the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. § 801 et seq., is Constitutional. Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Miroyan, 577 F2d. 489, 495 (9th Cir. 1978) ("constitutionality of the marijuana laws has been settled" law in the Ninth Circuit since 1976). The Federal Defendants' motion is granted with prejudice because no amendment of Plaintiff's complaint could possibly state a cognizable claim against Federal Defendants in this action. IT IS SO ORDERED.

DATED:

________________________________ Hon. Claudia Wilken United States District Judge

[PROPOSED] ORDER GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS 2 07-03885 CW