Free Order on Motion to Dismiss - District Court of California - California

Case 4:07-cv-03885-CW

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 8 No. C 07-3885 CW 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants Karen P. Tandy, the administrator of the U.S. Drug Enforcement Administration, and Scott N. Schools, the U.S. Attorney for the Northern District of California, have not yet appeared in this action. Any reference in this order to "Defendants" refers only to the City of Oakland and Gov. Schwarzenegger.
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOHN PHILLIPS, Plaintiff, v. CITY OF OAKLAND; KAREN P. TANDY; SCOTT N. SCHOOLS; and ARNOLD SCHWARZENEGGER, Defendants. / Pro se Plaintiff John Phillips brings this action alleging violations of his constitutional rights in connection with Defendants' refusal to allow him to operate a storefront marijuana dispensary. Defendants City of Oakland and California Governor ORDER GRANTING CITY OF OAKLAND'S AND ARNOLD SCHWARZENEGGER'S MOTIONS TO DISMISS

Arnold Schwarzenegger move separately to dismiss the claims against them.1 In an order dated October 4, 2007, the Court informed

Plaintiff that the deadline for filing his opposition to Defendants' motions was October 18, 2007, and that failure to file a timely opposition could result in the motions being granted.

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Plaintiff did not file an opposition. submission on the papers.

The matter was taken under

Having considered the papers filed by

Defendants, the Court grants their motions. BACKGROUND While the complaint is not clear on the factual details giving rise to this lawsuit, Plaintiff alleges that he was criminally prosecuted by the State of California for running a storefront marijuana dispensary. He also maintains that the City of Oakland

refuses to allow him to operate such a dispensary in downtown Oakland, even though he possesses a license from the federal government that permits him to grow and sell marijuana. Plaintiff claims in his first and second causes of action that the City of Oakland's acts violated his Fourteenth Amendment rights to equal protection and due process.2 He claims in his third cause

of action that the City of Oakland and Gov. Schwarzenegger violated the Supremacy Clause of the U.S. Constitution by not allowing him to run a storefront marijuana dispensary, in disregard of his federal license. LEGAL STANDARD A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Civ. P. 8(a). Fed. R.

When considering a motion to dismiss under Rule

12(b)(6) for failure to state a claim, dismissal is appropriate

Plaintiff's second cause of action is cast as a violation of his "right to earn a living." Because Plaintiff alleges no absence or failure of procedural safeguards in connection with his attempt to open a marijuana dispensary, the Court construes this cause of action to allege a substantive due process violation. 2

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only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. Bell Atl. Corp. v. Twombly, __ U.S. __, 127 S. Ct. 1955, 1964 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th NL See

Cir. 1987). When granting a motion to dismiss, the court is generally required to grant the plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendment

would be futile, the court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). Leave to amend should be liberally granted, but an amended complaint cannot allege facts inconsistent with the challenged pleading. Id. at 296-97.

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Fourteenth Amendment

DISCUSSION

Plaintiff claims that the City of Oakland's refusal to let him open a storefront marijuana dispensary violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Because Plaintiff does not allege that he is a member of a protected class, he can succeed on his equal protection claim only by demonstrating that he "has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Squaw Valley

Development Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). "Disparate government treatment will survive rational basis scrutiny `as long as it bears a rational relation to a legitimate state interest.'" (9th Cir. 1996)). The allegations in the complaint do not establish that Plaintiff has been treated differently from similarly situated individuals, let alone in an irrational manner. To the extent Id. (quoting Patel v. Penman, 103 F.3d 868, 875

Plaintiff's claim is based on the City treating him, as a proprietor of a medical marijuana dispensary, differently from businesspeople who sell other products, his claim must fail. Even

though California's Compassionate Use Act permits the personal use of marijuana for medical reasons, the commercial sale of medicinal marijuana is still illegal under California's criminal law. People

ex rel. Lungren v. Peron, 59 Cal. App. 4th 1383, 1389-90 (1997). The City of Oakland does permit dispensaries to sell marijuana for 4

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medical use, but it limits their number and location. Code § 5.80.

Oakland Mun.

The City has a legitimate interest in regulating the

dispensaries in this way because such regulation may prevent their uncontrolled proliferation, which could pose a threat to public safety, and may ensure that the dispensaries comply with the provisions of the Compassionate Use Act. Cf. Wash. Mercantile

Ass'n v. Williams, 733 F.2d 687, 691 (9th Cir. 1984) (government has a legitimate interest in regulating the sale of drug paraphernalia); United States v. Huss, 7 F.3d 1444, 1448 (9th Cir. 1993), overruled on other grounds, United States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998) (government has a legitimate interest in regulating the use of firearms). The

complaint alleges no facts suggesting that the City's permit scheme is an irrational means of regulating medical marijuana dispensaries. As for Plaintiff's due process claim, he is correct that the rights conferred by the Fourteenth Amendment include "some generalized due process right to choose one's field of private employment." Conn v. Gabbert, 526 U.S. 286, 291-292 (1999).

However, substantive due process does not provide an individual the unfettered right to earn a living in whatever way he or she desires. Rather, the right is "subject to reasonable government Id. at 292. Substantive due process certainly does

regulation."

not entitle an individual to engage in a profession that is criminalized under both state and federal law. Accordingly,

Plaintiff's substantive due process claim fails.

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II.

Supremacy Clause Plaintiff claims that he possesses a federal license to grow

and distribute marijuana and, therefore, the City of Oakland and the State of California have violated the Supremacy Clause of the U.S. Constitution by failing to allow him to operate his business. Marijuana is a Schedule I drug, the possession and distribution of which is a federal criminal offense. 21 U.S.C. §§ 841, 844, 812.

The Court takes judicial notice of the fact that the United States government does not issue licenses to individuals who wish to grow and sell marijuana, for medical purposes or otherwise.3 Because

Defendants' actions are not inconsistent with federal law, there is no basis for Plaintiff's Supremacy Clause claim. CONCLUSION For the foregoing reasons, the Court GRANTS Defendants' motions to dismiss the claims against them (Docket Nos. 11 and 12), and Plaintiff's first, second and third causes of action are hereby dismissed. The Court finds that any amendment of these claims

would be futile because the facts on which they are based are fundamentally incompatible with a legal claim. claims are dismissed with prejudice. The docket sheet does not reflect whether Defendants Tandy and Schools have been served with process. Plaintiff was required to Accordingly, these

serve these Defendants by November 27, 2007, within 120 days of filing the complaint. The Court will give Plaintiff until January

Plaintiff supports his contention that he possesses a federal license by reference to Exhibit A to the complaint. Exhibit A, however, is nothing more than an IRS payment voucher. 6

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28, 2008 to serve these Defendants and file proof of such service with the Court. be dismissed. If he does not do so, the claims against them will

Plaintiff is referred to Rule 4(i) of the Federal

Rules of Civil Procedure for the requirements of service upon officers of the United States. IT IS SO ORDERED.

Dated: 12/14/07 CLAUDIA WILKEN United States District Judge

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1 2 3 PHILLIPS et al, 4 Plaintiff, 5 v. 6

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV07-03885 CW CERTIFICATE OF SERVICE CITY OF OAKLAND, CALIFORNIA et al,

7 Defendant. 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Jill Bowers Office of the Attorney General 1300 I Street PO Box 944255 Sacramento, CA 94244-2550 John Phillips 2337 Ransom Avenue Oakland, CA 94601-3827 Rachel Wagner Office of the City Attorney, Oakland One Frank H. Ogawa Plaza, 6th Floor Oakland, CA 94612 Dated: December 14, 2007 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk /

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 14, 2007, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.