(PS) Sherrell v. State of California

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 DENNIS PAUL SHERRELL, JR., No. 2:22–cv–0275–KJM–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS 13 v. (ECF Nos. 1, 2) 14 STATE OF CALIFORNIA, et al., 15 Defendants. [16] 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Under the IFP statute, the court must screen the complaint and dismiss any claims that are 21 “frivolous or malicious,” fail to state a claim on which relief may be granted, or seek monetary 22 relief against an immune defendant. 28 U.S.C. § 1915 (e)(2). Further, the court has an 23 independent duty to ensure it has subject matter jurisdiction in the case. See United Investors 24 Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 25 /// 26 /// [27] 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636 (b)(1) and Fed. R. Civ. P. 72. 1 Because the complaint fails to state a claim and its defects cannot be cured through 2 amendment, the court recommends that the action be dismissed, and that plaintiff’s application to 3 proceed in forma pauperis be denied as moot. 4 Legal Standards 5 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338 , 342 & fn. 7 6 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 7 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it 8 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122 , 1130-31 9 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be 10 given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 11 Rule 8(a)2 requires that a pleading be “(1) a short and plain statement of the grounds for 12 the court’s jurisdiction . . . ; (2) a short and plain statement of the claim showing that the pleader 13 is entitled to relief; and (3) a demand for the relief sought, which may include relief in the 14 alternative or different types of relief.” Each allegation must be simple, concise, and direct. Rule 15 8(d)(1); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (overruled on other grounds) 16 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 17 litigation on the merits of a claim.”). 18 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 19 relief can be granted.” Rule 12(b)(6). A complaint fails to state a claim if it either lacks a 20 cognizable legal theory or sufficient facts to allege a cognizable legal theory. Mollett v. Netflix, 21 Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To avoid dismissal for failure to state a claim, a 22 complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 23 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 , 24 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 25 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 26 (2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a [27] 28 2 Citation to the “Rule(s)” are to the Federal Rules of Civil Procedure, unless otherwise noted. 1 claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff 2 pleads factual content that allows the court to draw the reasonable inference that the defendant is 3 liable for the misconduct alleged.” Id. 4 When considering whether a complaint states a claim upon which relief can be granted, 5 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89 , 94 6 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 7 Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 8 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 9 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 10 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). 11 Analysis 12 Plaintiff’s complaint against the State of California and several government officials3 13 contains vague claims related to the enactment of California’s Proposition 64, which legalized 14 recreational marijuana in the state. See People v. Boatwright, 36 Cal. App. 5th 848, 853 (2019). 15 (See ECF No. 1 at 4.) As best the court can tell, plaintiff alleges that Proposition 64 allows 16 “Federal Racketeering Criminal Enterprises” to advertise cannabis products on billboards, which 17 hurts “Federal Agents” and generally “causes fear, [despair], and mental suffering.” (See id.) 18 Plaintiff attaches photos of two offending billboards and a document indicating that he owns a 19 business called Sherrell Counter Terrorism. (Id. at 6-8.) 20 As the basis for this court’s jurisdiction, plaintiff cites Article VI of the U.S. Constitution 21 (the Supremacy Clause), 18 U.S.C. Section 2 , the Controlled Substances Act (CSA), and the 22 Racketeer Influenced and Corrupt Organizations Act (RICO). (Id. at 3.) In the attached civil 23 cover sheet, plaintiff describes his cause of action as “California Proposition 64 unconstitutional 24 (USA Cons[t]itution article VI).” (ECF No. 1.1.) For relief, plaintiff seeks: “judicial review of 25 /// [26] 27 3 In addition to the State of California, plaintiff names as defendants Attorney General Rob Bonta; Governor Gavin Newsom; Lieutenant Governor Eleni Kounalakis; and Chief Justice of the 28 California Supreme Court Tani Cantil-Sakauye. (ECF No. 1 at 1-2.) 1 cons[t]itution,” “placement in witness security program,” “hear California Proposition 64,” and 2 “Judicial Seal.” (Id. at 4.) 3 Plaintiff’s complaint should be dismissed because it fails to state a claim for which relief 4 can be granted. See 28 U.S.C. § 1915 (e)(2). None of the first three cited sources of jurisdiction 5 confers a private right of action, and a RICO claim does not lie against state officials sued in their 6 official capacity. In addition, plaintiff fails to establish standing to challenge the constitutionality 7 of Proposition 64 and attempts to sue certain defendants who are immune from suit. 8 1. No Private Right of Action under Criminal Code, Supremacy Clause, or CSA 9 Plaintiff’s citation to 18 U.S.C. § 2 , a federal criminal statute which prohibits aiding and 10 abetting, does not provide him with a civil cause of action. Plaintiff, as a private citizen, has no 11 authority to bring claims under criminal statutes. See Allen v. Gold Country Casino, 464 F.3d 12 1044, 1048 (9th Cir. 2006) (no private right of action for violation of criminal statutes). 13 Primarily, it appears that plaintiff seeks a declaratory judgment that Proposition 64 14 violates his rights under the Supremacy Clause (art. VI of the Constitution)—presumably because 15 he believes the CSA preempts Proposition 64. See Safe Streets All. v. Hickenlooper, 859 F.3d 16 865, 876 (10th Cir. 2017) (noting that despite Colorado’s decriminalization of marijuana, it 17 remains illegal under the CSA to manufacture, distribute, sell, and possess with intent to 18 distribute marijuana); 21 U.S.C. § 812 (c), Sched. I(c)(10). Courts have repeatedly rejected 19 similar, and better articulated, attempts to use the Supremacy Clause to strike down marijuana 20 decriminalization legislation in various jurisdictions. See Safe Streets All., 859 F.3d 865 21 (Amendment 64 to Colorado Constitution); Linsangan v. Gov’t of Guam, 2019 WL 4247818 , at 22 *3-4 (D. Guam Sept. 6, 2019) (Guam Cannabis Industry Act of 2019), report and 23 recommendation adopted, aff’d 2021 WL 6102173 (9th Cir. Dec. 22, 2021); Ruggles v. Ige, 2017 24 WL 427498 , at *3 (D. Haw. Jan. 31, 2017) (Hawaii medical marijuana dispensary system). 25 Courts reject these arguments because of the Supreme Court’s clear holding that “the Supremacy 26 Clause is not the source of any federal rights . . . and certainly does not create a cause of action.” 27 Armstrong v. Exceptional Child Center, Inc., 575 U.S.320, 324-25 (2015) (internal citations and 28 quotation marks omitted). Rather, it is “a rule of decision,” which “instructs courts what to do 1 when state and federal laws clash.” Id. Thus, the Supremacy Clause provides no independent 2 basis for plaintiff’s suit. 3 Similarly, to the extent plaintiff tries to assert a cause of action under the CSA alone, that 4 statute also does not authorize private suits. “Although the Ninth Circuit Court of Appeals has 5 not expressly addressed the issue, the district courts within the Ninth Circuit that have addressed 6 it uniformly concluded that the CSA does not create a private right of action.” Ruggles, 2017 WL 7 427498, at *4 (collecting cases); see Carter v. Inslee, 2016 WL 8738674 , at *2 (W.D. Wash. June 8 30, 2016) (denying motion to preliminarily enjoin Washington state’s medical marijuana 9 legislation because, like the Supremacy Clause, “[t]he CSA also does not confer a right of action 10 for citizen suits.”). Courts in other circuits are in agreement. See Durr v. Strickland, 602 F.3d 11 788, 789 (6th Cir. 2010); Schneller v. Crozer Chester Med. Ctr., 387 Fed. App’x. 289, 293 (3d 12 Cir. 2010); Smith v. Hickenlooper, 164 F. Supp. 3d 1286, 1290 (D. Colo. 2016) (finding no 13 private right of action to enforce the CSA in suit challenging Colorado’s recreational marijuana 14 laws as preempted under the CSA and other federal laws), aff’d sub nom. Safe Streets All. v. 15 Hickenlooper, 859 F.3d 865 (10th Cir. 2017). 16 “Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, 17 Pub.L. No. 91–513, 84 Stat. 1236 , to create a comprehensive drug enforcement regime it called 18 the Controlled Substances Act, 21 U.S.C. § 801–971.” Raich v. Gonzales, 500 F.3d 850, 854 (9th 19 Cir. 2007). “Congress established five ‘schedules’ of ‘controlled substances,’” whose placement 20 is determined “based on their potential for abuse, their accepted medical use in treatment, and the 21 physical and psychological consequences of abuse of the substance.” Id. (citing 21 U.S.C. 22 §§ 802(6), 812(b)). “Under the Controlled Substances Act, it is unlawful to knowingly or 23 intentionally ‘manufacture, distribute, or dispense, or possess with intent to manufacture, 24 distribute, or dispense, a controlled substance,’ except as otherwise provided in the statute.” Id. at 25 855 (quoting 21 U.S.C. § 841 (a)(1)). 26 Importantly, Congress made the CSA enforceable only by the Attorney General, the 27 Department of Justice, and in rare circumstances State and local law enforcement officers. See [28] 21 U.S.C. §§ 871 (a), 878(a), 882(c). “[T]here is nothing in the CSA which expressly permits 1 private enforcement of the Act’s provisions.” Smith, 164 F. Supp. 3d at 1292 . 2 Although it is possible to sue in equity to enjoin unconstitutional government actions— 3 that is, without invoking a specific legal cause of action—the power to do so “is subject to 4 express and implied statutory limitations.” Armstrong, 575 U.S. at 327. Where a statute 5 implicitly precludes private enforcement and contains “judicially unadministrable” text, litigants 6 cannot invoke a court’s equitable powers to “circumvent Congress’s exclusion of private 7 enforcement.” Id. at 328. As multiple courts have found, allowing a plaintiff to enjoin a state’s 8 less-restrictive marijuana legislation contravenes the CSA’s design of centralized enforcement by 9 state actors—not private citizens. See, e.g., Smith, 164 F. Supp. 3d at 1292-93 ; Carter, 2016 WL 10 8738674, at *2. Thus, plaintiff’s suit also cannot proceed in equity to enjoin enforcement of 11 Proposition 64. 12 2. RICO Claim 13 The last cause of action discernable in plaintiff’s complaint is a purported violation of 14 RICO. Although plaintiff cites no specific statute, he likely intends to assert a violation of [15] 18 U.S.C. § 1962 (c), which states: 16 It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate 17 or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of 18 racketeering activity or collection of unlawful debt. 19 Although plaintiff may bring a private civil action for RICO violations, see 18 U.S.C. 20 § 1964(c), government entities and government employees acting in their official capacities are 21 not subject to RICO liability. See Pedrina v. Chun, 97 F.3d 1296 , 1300 (9th Cir. 1996) 22 (“[G]overnment entities are incapable of forming the malicious intent necessary to support a 23 RICO action.”); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit 24 against a state official in his or her official capacity is not a suit against the official but rather is a 25 suit against the official’s office. As such, it is no different from a suit against the State itself.” 26 (citations omitted)). 27 Plaintiff names four state officials as defendants, without explaining how any of them 28 might be participating in racketeering activity—and without specifying whether they are being 1 sued in their individual or official capacities. (ECF No. 1 at 2.) However, given that plaintiff 2 lists the name defendant as “The Great State of California” (id. at 1), and requests purely 3 equitable relief rather than damages (id. at 4), the undersigned understands plaintiff to be suing 4 these officials in their official capacity only. See Balzarini v. Ralph Diaz, 2020 WL 2527945 , 5 at *5 (C.D. Cal. Apr. 1, 2020) (“[T]o the extent a plaintiff seeks injunctive relief, such claims 6 must be against the official in their official capacity.” (citing Agua Caliente Bd. of Cahuilla 7 Indians v. Hardin, 223 F.3d 1041, 1046 (9th Cir. 2000)); cf. Shoshone–Bannock Tribes v. Fish & 8 Game Comm’n, Idaho, 42 F.3d 1278 , 1285 (9th Cir. 1994) (“Where state officials are named in a 9 complaint which seeks damages under 42 U.S.C. § 1983 , it is presumed that the officials are 10 being sued in their individual capacities.”). 11 Because the State is not capable of forming the intent necessary to support a RICO claim, 12 plaintiff’s RICO claims fail as a matter of law. See Ruggles, 2017 WL 427498 , at *5 (dismissing 13 official-capacity RICO claims connected to Hawaii medical marijuana dispensary system). 14 3. Additional Standing & Immunity Issues 15 In addition to the above legal barriers to suit, the court also finds that plaintiff more 16 broadly fails to establish his standing to challenge the constitutionality of Proposition 64 17 (assuming that is his intent). As summarized by the Ninth Circuit: 18 Article III of the United States Constitution limits the power of the courts to the resolution of actual “Cases” and “Controversies.” U.S. 19 Const., art. III, § 2; Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 , 102 S. Ct. 20 752, 70 L.Ed. 2d 700 (1982). “[T]he irreducible constitutional minimum of standing contains three elements”: (1) injury in fact, 21 (2) causation, and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555 , 560–61, 112 S. Ct. 2130 , 119 L.Ed. 2d 351 (1992). 22 Thus, the party seeking to establish standing must show the “actual or imminent” “invasion of a legally protected interest” that is “fairly 23 traceable to the challenged action” and is “likely . . . to be redressed by a favorable decision.” Id. at 560–61, 112 S. Ct. 2130 (emphasis 24 added) (alterations, citations, and quotation marks omitted). The party seeking to establish jurisdiction . . . bears the burden of 25 demonstrating standing. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 , 342 & n.3, 126 S. Ct. 1854 , 164 L.Ed. 2d 589 (2006); Lujan, [26] 504 U.S. at 561 , 112 S. Ct. 2130 . 27 Ass’n of Pub. Agency Customers v. Bonneville Power Admin., 733 F.3d 939 , 969–70 (9th Cir. 28 2013) (emphasis omitted). 1 Here, plaintiff identifies no concrete injury that he has personally suffered. He merely 2 alleges that Proposition 64 (or perhaps the billboards advertising cannabis products) generally 3 causes “fear, [despair], and mental suffering.” (ECF No. 1 at 4.) Plaintiff also asserts generalized 4 harms suffered by “Federal Agents,” but he does not allege himself to be a federal agent— 5 notwithstanding his ostensible “counter terrorism” business. (See id. at 6.) “The mere 6 ‘observation of conduct with which one disagrees’ is not an injury sufficient to confer Article III 7 standing.” Linsangan v. Guam, No. 20-15195, 2021 WL 6102173 , at *1 (9th Cir. Dec. 22, 2021) 8 (unpub.) (quoting Valley Forge Christian Coll., 454 U.S. at 485 ). The Supreme Court insists that 9 federal courts “will not . . . ‘entertain citizen suits to vindicate the public’s nonconcrete interest in 10 the proper administration of the laws.’” Massachusetts v. EPA, 549 U.S. 497 , 516–17 (2007) 11 (citation omitted). Plaintiff’s failure to identify a “concrete and particularized” injury that is 12 “actual or imminent” provides a further basis for dismissal. See Lujan, 504 U.S. at 560 . 13 Finally, the court notes that all claims asserted against the State of California, itself, are 14 barred by Eleventh Amendment immunity; and all claims against the Chief Justice of the 15 California Supreme Court are barred by the doctrine of judicial immunity. See Kimel v. Florida 16 Bd. of Regents, 528 U.S. 62, 73 (2000) (“[F]or over a century now, we have made clear that the 17 Constitution does not provide for federal jurisdiction over suits against nonconsenting States.”); 18 Buffin v. California, 23 F.4th 951 , 959 (9th Cir. 2022) (“The Eleventh Amendment’s grant of 19 state sovereign immunity generally prevents nonconsenting states from being sued by private 20 individuals in federal court.” (cleaned up)); see also Mireles v. Waco, 502 U.S. 9, 9-10 (1991) 21 (“A long line of this Court’s precedents acknowledges that, generally, a judge is immune from a 22 suit for money damages.”); In re Castillo, 297 F.3d 940 , 947 (9th Cir. 2002) (“[A]bsolute 23 immunity insulates judges from charges of erroneous acts or irregular actions, even when it is 24 alleged that such action was driven by malicious or corrupt motives, or when the exercise of 25 judicial authority is ‘flawed by the commission of grave procedural errors.’” (citations omitted)). 26 No Leave to Amend 27 Ordinarily, the court liberally grants a pro se plaintiff leave to amend. However, because 28 plaintiff would be unable to cure the above-mentioned legal deficiencies through further 1 | amendment of the complaint, the court concludes that granting leave to amend would be futile, 2 || and recommends that this action be dismissed with prejudice. See Cahill, 80 F.3d at 339 . 3 RECOMMENDATIONS 4 Accordingly, IT IS HEREBY RECOMMENDED that: 5 1. The action be DISMISSED with prejudice for failure to state a claim, pursuant to 6 28 US.C. § 1915(e)(2); 7 2. Plaintiffs motion to proceed in forma pauperis (ECF No. 2) be DENIED AS MOOT; 8 and 9 3. The Clerk of Court be directed to CLOSE this case. 10 || These findings and recommendations are submitted to the United States District Judge assigned to 11 || the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen (14) days after 12 || being served with these findings and recommendations, plaintiff may file written objections with 13 || the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 14 || Recommendations.” Plaintiff is advised that failure to file objections within the specified time 15 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449 , 455 16 | (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 17 ORDER 18 In light of these recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 19 || discovery, and motion practice in this action are stayed pending resolution of these findings and 20 || recommendations. Other than objections to the findings and recommendations or non-frivolous 21 || motions for emergency relief, the court will not entertain or respond to any pleadings or motions 22 || until the findings and recommendations are resolved. 23 || Dated: April 18, 2022 4 Foci) Aharon 25 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE [27] sherr.0275