Denney v. Drug Enforcement Admin.
| Decision Date | 15 August 2007 |
| Docket Number | No. CIV.S-06-1711 LKK/GGH.,CIV.S-06-1711 LKK/GGH. |
| Citation | 508 F.Supp.2d 815 |
| Parties | Philip A. DENNEY, Plaintiff, v. DRUG ENFORCEMENT ADMINISTRATION, et al, Defendants. |
| Court | U.S. District Court — Eastern District of California |
Zenia Karen Gilg, Law Offices of Zenia K. Gilg, San Francisco, CA, for Plaintiff.
Yoshinori H.T. Himel, United States Attorney's Office, Sacramento, CA, Gary Charles Brickwood, Brickwood Law Office, Redding, CA, for Defendants.
Plaintiff, a California physician, has brought a First Amendment challenge based upon the alleged undercover investigation of his medical office by defendants. Plaintiff contends that defendants, who include the DEA and various state and federal officials, conducted a retaliatory investigation in response to his speech concerning medical marijuana, in violation of the injunctive order upheld in Conant v. Walters, 309 F.3d 629 (9th Cir.2002). Pending before the court is the federal defendants' motion to dismiss and motion for summary judgment, as well as plaintiffs application for a continuance under Rule 56(f) of the Federal Rules of Civil Procedure. For the reasons set forth below, the court denies the motion to dismiss and motion for summary judgment with respect to the First Amendment and equal protection claims, grants the motions with respect to the remaining claims, and grants plaintiffs application for a continuance.
Plaintiff Philip Denney is physician who has been licensed to practice medicine in the State of California since 1977. First Am. Compl. ("Compl.") ¶ 5. Since graduating medical school at the University of Southern California, he has practiced Family, Emergency, and Occupational Medicine. Id. He has never been disciplined by the state medical board, nor has he had his hospital privileges revoked, suspended, or restricted. Id. In addition to other locations, Dr. Denney has a medical office located in Redding, California, the site of the activities at issue in this case. Id.
Dr. Denney is an outspoken proponent of medical marijuana. He has been qualified to testify as an expert witness regarding the use of cannabis in at least seventeen counties in California, has testified before the California Medical Board regarding medicinal cannabis, and is a founding member of the Society of Cannabis Clinicians. Id.
On two occasions, defendants sent in either a confidential source ("CS") or undercover agent in order to obtain a medical marijuana recommendation from Dr. Denney. The government asserts that the background to both visits was the investigation of the Dixon Herbs marijuana dispensary in Redding. It claims that as part of this investigation, the Redding Police Department had previously sent confidential informants ("CIs") to attempt to buy marijuana from Dixon Herbs in September 2005. Defs.' Statement of Undisputed Fact ("SUF") ¶¶ 4-5. One, who had a medical marijuana recommendation, was successful, whereas another, who did not have a recommendation, was not. Id.
On September 20, 2005, a CS for the DEA attempted to buy marijuana from Dixon Herbs without a marijuana recommendation. Compl. ¶ 9. As with the Redding Police Department CI who did not have a recommendation, the DEA CS was also turned away. Id. He was, however, allegedly told to ask for someone by the name of "Amber" at Dr. Denney's office, who might be able to facilitate a recommendation. SUF ¶ 7.
The next day, on September 21, 2005, the CS went to Dr. Denney's office and asked if he could see the doctor. Compl. ¶ 11. The receptionist asked for his/her medical records, which the CS reported were unavailable because he/she had recently moved from Mississippi and that the records had been destroyed in Hurricane Katrina. Id. The receptionist went out of the office and, it is claimed, looked at the CS' vehicle to confirm that it had Mississippi license plates, which it did. Id.
Thereafter, Dr. Denney examined the CS, whose chief complaint was a pinched sciatic nerve that caused chronic pain. Id. Dr. Denney asked if he/she attempted other mainstream prescription medications, and was told that he/she did, but that these medications caused stomach problems. Id. Plaintiff then indicated that the CS was a candidate for the medical use of marijuana and explained that it was to be used only as recommended, not as a recreational drug. Id. He then gave the CS a written recommendation. Id.
While the CS was inside, an investigator surveilled the office from the street. Ex. G. Although fitting the CS with a convert transmitter or monitoring device had apparently been considered, the investigators decided against it because the transaction was to take place within a doctor's office. Id. Before the CS entered the office, the investigators checked him for contraband and money and established a prearranged meeting point where they were to meet after he left plaintiffs office. Id.
On September 27, 2005, the CS bought marijuana at Dixon Herbs assertedly using the marijuana recommendation obtained from plaintiff. SUF ¶ 10.
On November 9, 2005, defendants DEA Agent Dennis Hale, ATF Agent Steven Decker, and Redding Police Officers Tracy Miller and Eric Wallace conducted a briefing regarding the procurement of a medical marijuana recommendation from plaintiff. Compl. ¶ 12. Agent Decker was chosen to procure the marijuana recommendation and use it at Dixon Herbs because he was the only conveniently available agent with an appropriate undercover identity. SUF ¶ 16. The investigators then approached plaintiffs office and surveilled it while Agent Decker was inside. SUF ¶ 18.
Using a false driver's license, Agent Decker told plaintiffs receptionist that his name was Steven Hoffmaster. Compl. ¶ 18. When asked for prior medical records, he stated that he had been to a hospital in Santa Clara but could not recall which one. Id. The receptionist called several hospitals in Santa Clara, but found no record of a Steven Hoffmaster. Id. Agent Decker was told that the examination could proceed while the receptionist tried to locate his prior medical records. Id.
During the examination, Agent Decker told Dr. Denney that he had been in a motorcycle accident, which caused him to have daily pain in his neck. Compl. ¶ 15. Agent Decker then showed plaintiff a scar on his neck, the product of the alleged motorcycle accident. Id. After the examination, Dr. Denney provided a written recommendation to Agent Decker approving of the use"of medical marijuana. Id.
On November 21, 2005, Agent Decker bought marijuana from Dixon Herbs. SUF ¶ 23. On December 5, 2005, a state court search warrant was executed at Ron Dixon's residence, resulting in the seizure of marijuana. SUF ¶ 24. On the same day, a state court search warrant was executed at Dixon Herbs, resulting in the seizure of marijuana, scales, and three firearms. SUF ¶ 25. Dixon and two associates were arrested. Id. The state court criminal action against Ron Dixon has survived preliminary hearing and is set for trial. SUF ¶ 27.
Although both sides in this case have exchanged mandatory initial disclosures, no discovery has taken place. On February 1, 2007, the federal defendants filed a motion for protective order, staying discovery until resolution of their pending motion to dismiss and motion for summary judgment. On February 13, plaintiff stipulated to the stay in discovery, and the magistrate judge accordingly stayed all discovery until the resolution of defendants' motions. In addition to its opposition to the motion, plaintiff has filed an application for a continuance under Federal Rule of Civil Procedure 56(f), which provides that "the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had."
It is well established that the party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936); Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), the standards that must be applied vary according to the nature of the jurisdictional challenge.
If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. See 2A J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice ¶ 12.07 (2d ed.1987); see also Eaton v. Dorchester Development, Inc., 692 F.2d 727, 731 (11th Cir.1982); Williamson v. Tucker, 645 F2d 404, 412 (5th Cir.1981), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981); Mortensen v. First Fed. Say. & Loan Ass'n., 549 F.2d 884, 891 (3d Cir. 1977). A complaint will be dismissed for lack of subject matter jurisdiction (1) if the case does not "arise under" any federal law or the United States Constitution, (2) if there is no case or controversy within the meaning of that constitutional term, or (3) if the cause is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
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