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March 10, 1999


The opinion of the court was delivered by: Katz, Senior District Judge.


Before the court now is the government's motion to dismiss or, in the alternative, to strike the plaintiffs' second amended complaint. In addition, plaintiffs have submitted what is titled a motion for summary judgment, and the government has filed a responsive motion seeking to strike the opposition to the motion to strike.

I. The Complaint

The government correctly states that the complaint in this case is exceedingly long: it numbers 178 pages and includes narrative descriptions of each of the 170 named plaintiffs in the case. However, the gist of the complaint is found in the concluding fifteen pages in which the occasionally oblique legal claims are found. After discussion of the historical uses of marijuana and allegations regarding recent research and therapies utilizing the plant, see Compl. ¶¶ 171-78, the plaintiffs focus on "marijuana prohibition" and outline the Controlled Substance Act (CSA), 21 U.S.C. § 801 et seq., the statutory scheme by which virtually all uses of marijuana are prohibited. See ¶¶ 179-87.

The plaintiffs next discuss two "exceptions" to the prohibition on marijuana. First, plaintiffs state that in 1978 the federal government settled a lawsuit by which it provided Robert Randall, the plaintiff in that case, with FDA-approved and medically supervised access to government-grown marijuana to control his glaucoma.*fn1 The plaintiffs allege that the government eventually expanded this compassionate use program*fn2 to cover a small number of other individuals who were also supplied with marijuana for medical needs after they complied with various application procedures not related to the settlement. The program stopped taking new participants in 1992, see Compl. ¶¶ 188-93, and, according to plaintiffs, only eight individuals still receive marijuana. See id. ¶ 195.*fn3 The complaint states that three of the plaintiffs, Ladd Huffman, Jackie Rickert, and Ron Shaw, had their applications to the program approved but subsequently were denied marijuana supplies because of the government's decision to stop admitting new participants. See id. ¶ 194.*fn4 The second exception to the general prohibition alleged by the plaintiffs is the government's approval of the drug Marinol, which contains a synthetic version of THC, the active ingredient in marijuana. See id. ¶¶ 198-205. Plaintiffs suggest that these "exceptions" violate the equal protection clause by creating arbitrary distinctions between different types of drugs and between different people. See id. ¶¶ 196-97 (discussing compassionate use exception); ¶ 202 (stating that permitting synthetic THC but banning natural THC is arbitrary).

Plaintiffs then proceed to their other constitutional claims. They argue first that Congress exceeded its power under the commerce clause by enacting federal criminal laws prohibiting marijuana. See id. ¶¶ 207, 209. In subsequent paragraphs, although they do not explicitly say so, the plaintiffs imply that the criminalization of marijuana violates both the fundamental right and suspect class prongs of equal protection. See id. ¶ 211 ("Total prohibition of marijuana/cannabis has deprived this class of the fundamental liberty and property rights which are their birthrights."). They also suggest that this is a violation of the Ninth and Tenth Amendments. See id. ¶ 207. Plaintiffs then allege that denying individuals the rights to select their own medical treatment violates the right of privacy. See id. ¶ 213. The remaining portion of the complaint discusses the federal government's hostile response to the California referendum in which the use of medical marijuana was approved in certain situations. See id. ¶¶ 215-17. Ultimately, plaintiffs request declaratory and injunctive relief "to stop enforcement of the marijuana provisions of [the Controlled Substance Act]." Id. at Prayer for Relief.

The court will address each of these issues.

II. The Motion to Dismiss

The court has no difficulty in determining that the plaintiffs cannot succeed on their claims pertaining to the commerce clause, the Ninth Amendment, the Tenth Amendment, the right to privacy, or, in general, the equal protection clause. Numerous cases have held that under the rational review applied to such legislative actions, the CSA easily passes constitutional muster, and this court agrees with the reasoning in those decisions. However, it is premature to dismiss the plaintiffs' equal protection claims regarding access to the compassionate use program by which marijuana is distributed to select individuals, and the motion to dismiss will be denied as to that allegation.

A. Rule 12(b)(6) Standards

A motion to dismiss pursuant to Rule 12(b)(6) should be granted when there is a "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In evaluating a motion to dismiss for failure to state a claim, the court must determine whether "under any reasonable reading of the pleadings, the plaintiffs may be entitled to relief" and the court must "accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996); see also Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993). In ruling, the court may consider the complaint, public records, exhibits, and documents central to the complaint. See, e.g., Slater v. Marshall, 915 F. Supp. 721, 723 (E.D.Pa. 1996). The court should not inquire as to whether the plaintiffs would ultimately prevail but only whether they are entitled to offer evidence to support their claims. See Nami, 82 F.3d at 65. A motion to dismiss should be granted only if the "plaintiffs could prove no set of facts that would entitle them to relief." Id.; see also Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Granting a motion to dismiss is a disposition on the merits, and, as this is a disfavored method by which to dispose of a case, the burden is on the moving party to show that no facts could permit plaintiffs' claim to prevail. See Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980).

B. The Statutory and Regulatory Framework

Substances that are deemed hazardous by the federal government are placed into one of five schedules. Marijuana was placed in Schedule I, which means that it has "a high potential for abuse," that there is "no currently accepted medical use in treatment in the United States," and that there is "a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1); see also 21 U.S.C. § 812 Schedule I(c)(10) (placing marijuana in Schedule I). Marijuana is included in the federal laws criminalizing distribution and possession with intent to distribute of controlled substances. See, e.g., 21 U.S.C. § 841(b)(1)(D). There are specific penalties for individuals who "distribut[e] a small amount of marijuana for no remuneration," see 21 U.S.C. § 841(b)(4), 844, 844a (establishing lesser penalties, including civil penalties, for simple possession), but it is undeniable that marijuana possession, distribution, and cultivation, etc., are illegal in virtually every context.*fn5

C. Plaintiff's Claims

Plaintiffs claim to be challenging the Controlled Substance Act in all aspects as it pertains to marijuana. The court construes this to be a challenge, inter alia, to 21 U.S.C. § 841, 844, 846, and all related provisions, such as 21 U.S.C. § 860, that could be invoked by possession, distribution, or growing of marijuana. The court will not examine each specific provision in the Act and address it; rather, as suggested by the plaintiffs, defendant, and other courts, this court will consider the CSA as a whole. Plaintiffs separately raise equal protection challenges to the policies for access to the compassionate use program and to the treatment of Marinol, and they will accordingly be considered separately. The plaintiffs did not file any answer specifically addressing the claims in the motion to dismiss; the only response was an argument that the court ought to consider this motion to be one for summary judgment.

1. Commerce Clause Challenges

Plaintiffs argue that the CSA, at least as applied to marijuana, is an illegitimate exercise of Congress' powers under the commerce clause. See 21 U.S.C. § 801 (justifying federal regulation pursuant to the commerce clause). The government's motion argues that the court must dismiss this claim because it is well-settled that the CSA is a valid exercise of congressional power. See Mot. to Dismiss at 7. The court agrees with the government.

The Supreme Court has explained that Congress may exercise its powers under the commerce clause in three ways: 1) it may regulate the use of channels of inter-state commerce; 2) it may regulate and protect "instrumentalities" of interstate commerce or people or things in interstate commerce even when the possible harm comes from intrastate actions; and 3) Congress may "regulate those activities having a substantial relation to interstate commerce." United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The Third Circuit, along with many other courts, has recognized the interstate nature of the market in illegal drugs and has held that Congress may regulate that market in the same way that it may regulate foods and drugs that are legal. See United States v. Orozco, 98 F.3d 105, 106-07 (3d Cir. 1996). When it passed the statute regulating and criminalizing drugs, including marijuana, Congress specifically included findings that "drug trafficking affected interstate commerce." See id.; see also 21 U.S.C. ยง 801 (detailing congressional ...

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