throbber
Case 1:19-cv-02754-JMS-DLP Document 34 Filed 10/24/19 Page 1 of 17 PageID #: 294
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
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`) Cause No: 1:19-cv-02754-JMS-DLP
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`KURT ST. ANGELO,
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`Plaintiff,
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`v.
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`UNITED STATES OF AMERICA and
`STATE OF INDIANA,
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`Defendants.
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`MEMORANDUM OF LAW IN SUPPORT OF
`THE UNITED STATES OF AMERICA’S MOTION TO DISMISS
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`Kurt St. Angelo is an Indiana resident who regularly uses marijuana. [Filing No. 1 at 12
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`(Compl. ¶ 11).] He asserts that, by virtue of being a “natural-born” American citizen, he
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`possesses “various natural, constitutional and substantive rights” to possess, cultivate, and use
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`drugs for recreational purposes. [Id. at 11 (Compl. ¶ 10).]
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`St. Angelo brings this lawsuit to expose what he sees as a “grand fraudulent conspiracy.”
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`[Id. at 45 (Compl. ¶ 91).] Based on his own idiosyncratic reading of the federal Controlled
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`Substances Act, 21 U.S.C. §§ 801 et seq., and Indiana Controlled Substances Act, St. Angelo
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`asserts that federal and state law actually “recognize and codify” his “natural right of drug
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`possession” and, thus, “[d]rug possession and dealing are not misdemeanors or felonies.”1 [Id. at
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`15 & 21 (Compl. ¶¶ 21 & 38).] However, he claims, the federal and state governments have
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`distorted the “proper operation of Indiana and U.S. drug statutes” by arresting and prosecuting
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`1
`This point is, perhaps, stated most succinctly by the URL of the website that St. Angelo
`created to publicize this lawsuit: http://www.drugsarelegal.com. [See Filing No. 2 at 25
`(referencing site).]
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`

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`individuals for dealing and possessing drugs, which he views as “wrongful, unlawful and
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`performed under false color of law.” [Id. at 10, 11, 21 (Compl. ¶¶ 7, 10, 38).]
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`In this suit, St. Angelo seeks to vindicate his own “rights as a marijuana user” as well as
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`“the constitutional rights of drug dealers” in general.2 [Id. at 11 (Compl. ¶ 10); see also Filing
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`No. 30-1 at 7 (Am. Compl. ¶ 19).] He asks this Court to issue broad injunctive and declaratory
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`relief prohibiting the state and federal governments from arresting individuals for possessing
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`drugs and ordering the release of everyone imprisoned for drug offenses, among other things.3
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`Lengthy as it is, however, the complaint does not plead a justiciable case or controversy
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`nor plausibly allege any entitlement to relief. St. Angelo does not have standing to sue on his
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`own behalf, he cannot bring claims on behalf of absent drug users or dealers, and he cannot show
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`that he is entitled to injunctive or declaratory relief. In short, this suit is hopelessly defective and
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`should be dismissed.
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`LEGAL STANDARD
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`A suit should be dismissed under Rule 12(b)(1) where the Court lacks subject–matter
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`jurisdiction, which is limited solely to “cases and controversies.” U.S. CONST. art. III. In deciding
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`a motion to dismiss under Rule 12(b)(1), the Court accepts the allegations in the complaint as
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`2
`On October 7, 2019, St. Angelo filed a motion to amend the complaint to add the
`Attorney General, William P. Barr, along with various state officials, as defendants. [Filing No.
`30.] The Court has not yet ruled on that motion. Regardless, as the Amended Complaint rehashes
`much of the original Complaint, ad the arguments in this brief regarding St. Angelo’s lack of
`entitlement to relief apply equally to the Amended Complaint as to the original Complaint.
`3
`In Counts 8–10 of the original Complaint, St. Angelo also sought hundreds of millions of
`dollars in compensatory and punitive damages stemming from what he sees as Defendants’
`wrongful enforcement of the drug laws and their “utter incompetence to read statutes and to
`know and uphold the republican form of government.” [Filing No. 1 at 51–52 (Compl. ¶¶ 98–
`99).] St. Angelo has since filed a motion to dismiss those allegations, leaving only his requests
`for declaratory and injunctive relief. [Filing No. 18.]
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`2
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`

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`true and draws all reasonable inference in the plaintiff’s favor. Long v. Shorebank Dev. Corp.,
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`182 F.3d 548, 554 (7th Cir. 1999). Plaintiff has the burden of proving that subject-matter
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`jurisdiction exists. See Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003).
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`Under Rule 12(b)(6), the complaint must “contain sufficient factual matter, accepted as
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`true, to ‘state a claim to relief that is plausible on its face’” Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009). Here, too, the Court accepts the well-pled facts as true and gives plaintiff the benefit of
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`permissible inferences, Tucker v. City of Chicago, 907 F.3d 487, 491 (7th Cir. 2018), but the
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`complaint’s factual allegations must state an entitlement to relief “to a degree that rises above the
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`speculative level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012).
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`ARGUMENT
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`St. Angelo’s complaint proceeds from the mistaken premise that the federal Controlled
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`Substances Act (and its Indiana analogue) “declare individual drug possession to be lawful.”
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`[Filing No. 1 at 21 (Compl. ¶ 36); id. at 15 (Compl. ¶ 21); see also Filing No. 30-1 at 17
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`(Amended Compl. ¶ 41).] That is incorrect. The Controlled Substances Act makes clear that
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`possession of controlled substances (including marijuana)—even for personal use—is unlawful.4
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`St. Angelo’s reading cannot be squared with either the statutory language or binding precedent.
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`St. Angelo’s basic misunderstanding of the Controlled Substances Act permeates the
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`complaint. He cannot show that he has standing to sue on his own behalf, and his assertion that
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`4
`St. Angelo focuses his allegations on marijuana, so this brief primarily addresses the
`federal criminal prohibitions on marijuana possession and use. While St. Angelo also says that he
`also “occasionally possesses other drugs” too [Filing No. 30-1 at 8 (Am. Compl. ¶ 20)], and
`asserts that he has the “right within Indiana to possess any drug — not just marijuana” [Filing
`No. 30 at 3 (emphasis added)], he does not argue that there is any meaningful distinction
`between the criminal prohibitions on various Schedule I controlled substances that he may use
`for recreational purposes. For purposes of this motion, such distinctions are not relevant.
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`3
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`he has standing to sue on behalf of an untold number of third-party drug users fares no better.
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`Nor can he plausibly show any entitlement to injunctive or declaratory relief, especially where
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`his request is premised on an erroneous understanding of the drug laws’ operation.
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`A.
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`There Is No Individual Right to Possess Marijuana or Other Illegal Drugs
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`St. Angelo’s understanding of (what he calls) the Controlled Substances Act’s “‘ultimate
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`user’ provision” is central to his complaint. [See, e.g., Filing No. 1 at 15 & 21 (Compl. ¶¶ 21 &
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`36).] He asserts that “21 U.S.C. § 822(c) [of the Controlled Substances Act] . . . read in
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`conjunction with 21 U.S.C. § 802(27) . . . say[s] that end users of controlled substances—called
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`‘ultimate users’—may ‘lawfully possess’ . . . drugs for their own use and use of their
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`households.” [Id. at 15 (Compl. ¶ 21); see also Filing No. 30-1 at 11 (Am. Compl. ¶ 27).] For
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`several reasons, this is wrong.
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`In the Controlled Substances Act, Congress sought to combat recreational drug abuse by
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`prohibiting the manufacture, distribution, possession, and improper use of controlled substances.
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`See 21 U.S.C. § 801. The CSA classifies marijuana as a Schedule I controlled substance. Id.
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`§ 812(c)(10). This classification reflects Congress’s findings that marijuana “has a high potential
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`for abuse,” that it “has no currently accepted medical use in treatment in the United States,” and
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`that “[t]here is a lack of accepted safety for use of [marijuana] under medical supervision.” Id.
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`§ 812(b). Accordingly, federal law makes it illegal to distribute or dispense marijuana, 21 U.S.C.
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`§ 841(a)(1), and (with limited exceptions not relevant here) makes it illegal to possess marijuana.
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`21 U.S.C. §§ 841(a)(1) & 844(a).
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`St. Angelo’s claim that he “may lawfully possess and produce (cultivate)” marijuana “for
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`his own use and use of his household” cannot be squared with the Supreme Court’s decision in
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`Gonzales v. Raich, 545 U.S. 1 (2005), which upheld the CSA’s criminalization of marijuana for
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`4
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`personal use. [Filing No. 1 at 30 (Compl. ¶ 57(a)); see also, e.g., id. at 15 (Compl. ¶ 21); Filing
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`No. 30-1 at 26 (Am. Compl. ¶ 61(a)).] In Raich, California residents who used marijuana for
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`medical purposes sought to prohibit the federal government from enforcing the CSA as to their
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`marijuana use. Endorsing the Controlled Substances Act as a valid exercise of Congress’s
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`powers under the Commerce Clause, the Supreme Court made clear that, pursuant to the CSA,
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`marijuana is “contraband for any purpose” and possession of it is “a criminal offense.” Id. at 14
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`& 27 (emphasis in original). In other words, as other federal courts have recognized, Raich
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`“uph[e]ld the prohibition of all intrastate, noncommercial cultivation, possession, and use of
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`marijuana.” United States v. Neth, No. 6:09-cr-00210-PCF-GJK, 2010 WL 1257699, at *3 (M.D.
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`Fla. Mar. 30, 2010). St. Angelo’s assertion that he is entitled to possess marijuana for his
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`personal use is inconsistent with Raich and, thus, has no legal merit.
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`Furthermore, St. Angelo’s interpretation of the “ultimate user provision” in 21 U.S.C.
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`§ 822(c) is not supported by the statute. Section 822 of the Controlled Substances Act deals with
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`registration requirements. See 21 U.S.C. § 822 (“Persons Required to Register”). The CSA
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`requires anyone who “manufactures or distributes” or “dispenses . . . any controlled substance”
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`to register annually. Id. § 822(a). 21 U.S.C. § 822(c) lists three specific exceptions to the
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`registration obligations for (1) registered entities’ agents and employees, acting in the usual
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`course of business or employment; (2) common carriers, warehousing facilities, and their
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`employees acting in the ordinary course of business; and (3) “[a]n ultimate user who possesses
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`such substance for a purpose specified in [21 U.S.C. § 802(27)].”5 Id. § 822(c)(1)–(3). Section
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`5
`The statute originally referenced 21 U.S.C. § 802(25) here. As a result of renumbering
`through subsequent amendments, the reference now refers to § 802(27). See Pub. L. 99-570,
`Title I, § 1003(b)(2).
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`5
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`802(27), in turn, defines “ultimate user” as “a person who has lawfully obtained, and who
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`possesses, a controlled substance for his own use[.]”
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`St. Angelo says that § 822(c)(3) and its reference to § 802(27) affirmatively authorize
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`ultimate users to lawfully possess drugs for personal use. [Filing No. 1 at 15 (Compl. ¶ 15); see
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`also Filing No. 30-1 at 3 (Am. Compl. ¶ 7).] That gets things backwards: Section 802(27) limits
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`the exception in § 822(c)(3) only to instances of “lawful[]” possession. As a Schedule I
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`controlled substance, marijuana can only be legally manufactured, distributed, possessed, and
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`used for certain specific purposes, i.e., federally approved research. E.g., Raich, 545 U.S. at 14
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`(the “sole exception” to the criminalization of marijuana is “use of the drug as part of a Food and
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`Drug Administration preapproved research study”); see also United States v. Oakland Cannabis
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`Buyers’ Co-op., 532 U.S. 483, 500 (2001) (Stevens, J., concurring) (marijuana “cannot be
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`distributed outside of approved research projects”). Since, by his own admission, St. Angelo has
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`not “lawfully obtained” marijuana, the “ultimate user” provision cannot provide him safe harbor.
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`In Stubblefield v. Gonzales, 150 F. App’x 630, 631 (9th Cir. 2005) (unpublished), the
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`Ninth Circuit rejected a similar argument to the one that St. Angelo makes in this suit. In
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`Stubblefield, plaintiffs asserted that they were exempt from the CSA’s prohibition on marijuana
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`cultivation, possession, and use based on the “ultimate user” provision. The Ninth Circuit held
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`that, because plaintiffs “did not lawfully obtain their marijuana” (i.e., they did not acquire it in
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`connection with federally approved research), they “[we]re not ‘ultimate users’ of marijuana and,
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`thus, their mere possession of it violate[d] the CSA.” Id. at 631–32 (citing Raich). Additionally,
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`St. Angelo claims that the “ultimate user” provision allows him to “cultivate” marijuana for his
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`own purposes [e.g., Filing No. 1 at 30 (Compl. ¶ 57)], but the Ninth Circuit rejected that
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`argument, too, explaining that even if plaintiffs did qualify as ultimate users, “that would permit
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`6
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`them only to ‘lawfully possess’ marijuana for certain specified purposes . . . [but] it would not
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`permit them to manufacture marijuana.” 150 F. App’x at 632. So, Stubblefield shows that St.
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`Angelo’s position is wrong on several levels.
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`Moreover, St. Angelo’s reading of § 822(c)(3) makes no sense in the context of the
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`statute. Congress included the exceptions to registration in § 822(c) in order to allow lawfully
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`manufactured controlled substances to travel through the legitimate distribution chain, without
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`imposing cumbersome registration requirements on each person involved in the shipping
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`process. See H. R. 91-1444 (1970), as reprinted in 1970 U.S.C.C.A.N. 4566, 4569 & 4606
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`(purpose of Controlled Substances Act is to limit controlled substances to the “legitimate
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`distribution chain”); see also Raich, 545 U.S. at 13 (“The main objectives of the CSA were to
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`conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.
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`Congress was particularly concerned with the need to prevent the diversion of drugs from
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`legitimate to illicit channels.”) (citing H. R. 91-1444). The ultimate user exception in § 822(c)(3)
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`must be read the same way—i.e., it allows individuals who legally receive controlled substances
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`through the legitimate distribution chain to possess the substances without the need to go through
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`the CSA’s registration process. Section 822(c)(3) was not, as St. Angelo claims, included in the
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`statute in order to provide some backdoor authorization for recreational drug use, which would
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`undermine the Controlled Substances Act’s entire purpose and would directly contradict other
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`provisions of the statute that criminalize such use. See generally Kleber v. CareFusion Corp.,
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`914 F.3d 480, 483 (7th Cir. 2019) (statutory language must be interpreted in harmony with its
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`surrounding context) (citations omitted).
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`St. Angelo makes other claims about his supposed right to possess marijuana, but those
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`also fail. For instance, he argues that he has a constitutionally protected property right in the
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`7
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`marijuana that he purchases. [See, e.g., Filing No. 1 at 12 & 19–20 (Compl. ¶¶ 11 & 32); see also
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`Filing No. 30-1 at 8 & 16 (Am. Compl ¶¶ 20 & 37).] Yet federal law provides that “no property
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`right shall exist in” any controlled substance possessed in violation of federal law. 21 U.S.C.
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`§ 881(a)(1); see also Barrios v. Cnty. of Tulare, No. 1:13-CV-1665-AWI-GSA, 2014 WL
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`2174746, at *5 (E.D. Cal. May 23, 2014) (“Because marijuana is contraband under federal law,
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`Barrios had no property interest in the marijuana . . .”); Schmidt v. Cnty. of Nevada, No. 2:10-
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`CV-3022-FCD-EFB, 2011 WL 2967786, at *5 (E.D. Cal. July 19, 2011) (“Under the federal
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`Controlled Substances Act . . . it is illegal for any private person to possess marijuana. Thus,
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`under federal law, marijuana is contraband per se, which means no person can have a cognizable
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`legal interest in it.”). St. Angelo’s claim that illegal drugs are his “property” is simply wrong.
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`The Controlled Substances Act does not “codif[y]” a “right to ‘lawfully possess’ drugs.”
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`[Filing No. 1 at 26–27 (Compl. ¶ 46).] This fundamental premise of St. Angelo’s suit is
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`contravened by precedent that binds this Court, as well as the language of the statute itself.
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`B.
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`St. Angelo Lacks Standing to Bring This Suit
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`St. Angelo does not have standing to bring this suit. Accordingly, this Court lacks
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`subject-matter jurisdiction.
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`The “irreducible constitutional minimum” of standing requires three elements: plaintiff
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`must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
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`the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Spokeo, Inc.
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`v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
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`560 (1992)). At the pleading stage, plaintiff “must clearly allege facts demonstrating” that he
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`satisfies “each element” of standing. Id. (citation and quotation marks omitted). As the Supreme
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`Court has explained, the standing doctrine “is built on separation-of-powers principles” because
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`8
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`it “serves to prevent the judicial process from being used to usurp the powers of the political
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`branches.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013). Thus, this Court’s
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`standing inquiry should be “especially rigorous” in cases like this one, where “reaching the
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`merits of the dispute would force [this Court] to decide whether an action taken by one of the
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`other two branches of the Federal Government was unconstitutional.” Id.
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`St. Angelo purports to sue on his own behalf and on behalf of “all drug users and dealers”
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`generally. [Filing No. 1 at 30 (Compl. ¶ 56); id. at 11, 15–17 (Compl. ¶¶ 10, 23–27); see also
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`Filing No. 30-1 at 15, 19, 25 (Am. Compl. ¶¶ 36(d), 45(d), 60).] On both counts, however, he
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`lacks standing.
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`1.
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`St. Angelo Does Not Have Standing to Sue on His Own Behalf
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`St. Angelo does not have standing to sue on his own behalf because he has not
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`experienced any actual injury traceable to the challenged conduct in this suit. Injury in fact is
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`“the first and foremost of standing’s three elements.” Spokeo, 136 S. Ct. at 1547 (citations and
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`quotation marks omitted). To be sufficient for standing purposes, the alleged injury must be both
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`particularized and concrete—that is, it “must affect the plaintiff in a personal and individual
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`way” and be “real, and not abstract.” Id. at 1548.
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`St. Angelo’s grievance in this suit is that (he thinks) the federal and state governments
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`have “violat[ed his] various natural, constitutional and substantive rights” by arresting and
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`incarcerating people for drug violations, which puts him under “constant threat of arrest” for his
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`drug use. [Filing No. 1 at 11 (Compl. ¶ 10); Filing No. 31-1 at 8 (Am. Compl. ¶ 22).] But, as
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`discussed in Section I supra, this supposed “right of drug possession” has no basis in law—so
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`any alleged violation of this supposed “right” cannot amount to injury in fact. [Id. at 15 (Compl.
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`9
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`¶ 15).] See generally Spokeo, 136 S. Ct. at 1548–49 (violation of plaintiff’s rights must “actually
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`exist” and involve “actual” harm to suffice for standing).
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`Furthermore, St. Angelo does not claim that he has ever actually been arrested for his
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`drug use, so the injury over which he is suing is hypothetical, not concrete. See Spokeo, 136 S.
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`Ct. at 1548. He is essentially asking for an advisory opinion, which this Court lacks authority to
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`render. See, e.g., Weil v. Metal Techs., Inc., No. 2:15-CV-00016-JMS, 2015 WL 5827594, at *2
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`(S.D. Ind. Oct. 6, 2015) (citations omitted). In an attempt to remedy this defect, in the Amended
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`Complaint, St. Angelo alleges that he faces the “imminent” threat of future arrest and recounts
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`some anecdotes about his close calls with law enforcement over the years. [See Filing No. 30-1
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`at 8 (Am. Compl. ¶ 22).] These allegations do not show that St. Angelo faces “a credible threat
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`of prosecution” that is “sufficiently imminent.” Susan B. Anthony List v. Driehaus, 573 U.S. 149,
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`158 (2014). The Amended Complaint recounts two episodes: (1) one in which the police
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`“mistaken[ly]” came to St. Angelo’s residence in 2016, and (2) another in which St. Angelo saw
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`a policeman through a window while smoking marijuana. [Filing No. 30-1 at 8–9 (Am. Compl.
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`¶¶ 22(a)–(b).] But these anecdotes merely show that St. Angelo has had incidental contact with
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`law enforcement, during which—he surmises—the police could have detected his marijuana use
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`and, if they had, could have decided to arrest him. This is much too attenuated to suffice for
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`standing purposes. Ironically, moreover, St. Angelo’s story about his 2016 interaction with the
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`police actually undercuts his standing argument: that interaction occurred three years ago, and
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`yet St. Angelo has not been arrested, so any supposed threat of arrest to him must not be
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`“imminent.” Id. at 158.
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`Even if he could show that the threat of arrest to him is imminent, such a threat can only
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`constitute injury-in-fact when the plaintiff “engage[s] in a course of conduct arguably affected
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`10
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`with a constitutional interest, but proscribed by a statute.” Susan B. Anthony List, 573 U.S. at
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`158–59 (emphasis added) (citation and quotation marks omitted). St. Angelo has no arguable
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`constitutional interest in the use of illegal drugs like marijuana, which the Supreme Court has
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`squarely recognized to be “a criminal offense.” Raich, 545 U.S. at 14. Accordingly, he cannot
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`use the threat of arrest for violating the CSA to satisfy standing.
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`In various briefs, St. Angelo compares himself to the plaintiff in Steffel v. Thompson, 415
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`U.S. 452 (1974), whom the Supreme Court held had standing to sue after being threatened with
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`prosecution for distributing handbills in protest of the Vietnam War. [E.g., Filing No. 19 at 10–
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`11; Filing No. 31 at 2–3.] But Steffel is no model for this case. Steffel was repeatedly warned by
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`police that he would be arrested if he did not stop distributing the handbills, and his companion
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`actually was arrested, which established the likelihood of imminent arrest. By contrast, St.
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`Angelo does not allege that he has received any specific warning that “he will likely be
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`prosecuted” if he does not stop his illegal drug use. 415 U.S. at 459. And, needless to say, the
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`valid and important First Amendment principles in Steffel bear no resemblance to the issues in
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`this suit, where St. Angelo merely seeks to vindicate some illusory “right” to illegal drugs.6
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`6
`In his original Complaint, St. Angelo alleged he has suffered “loss of employment,” “loss
`of income,” “shame,” “obsessive compulsiveness,” and “wasted time, talent and treasure . . . to
`acquire marijuana” based on the enforcement of the drug laws. [Filing No. 1 at 51–52 (Compl.
`¶ 98).] These allegations are contained in a portion of the original Complaint (Count 8) that St.
`Angelo has moved to voluntarily dismiss [see Filing No. 18], so this Court need not address
`them. Regardless, they are not fairly traceable to the government’s conduct. St. Angelo cannot
`reasonably complain he has suffered lost income just because the law prohibits him from using
`marijuana, nor is the government responsible for “shame” or other emotional harms that St.
`Angelo claims to have suffered from illegal drug use.
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`11
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`2.
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`St. Angelo Cannot Sue on Behalf of Other Drug Users or Dealers
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`St. Angelo also seeks relief on behalf of “all drug users and dealers” who are affected by
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`the Controlled Substances Act. [Filing No. 30-1 at 15, 19, 25 (Am. Compl. ¶¶ 36(d), 45(d), 60);
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`Filing No. 1 at 11, 15–17, 30 (Compl. ¶¶ 10, 23–27, 56).] Any alleged harms that happened to
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`other drug users or dealers are not particularized to St. Angelo and thus are insufficient for
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`Article III purposes. Spokeo, 136 S. Ct. at 1548.
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`To the extent that St. Angelo purports to invoke the third-party standing doctrine, he
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`cannot satisfy that standard either. Federal courts have a “presumption against third-party
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`standing.” Marin-Garcia v. Holder, 647 F.3d 666, 670 (7th Cir. 2011) (citation omitted). Third-
`
`party standing is permissible where the plaintiff has suffered injury in fact, plaintiff has a close
`
`relationship to the absent third party, and there is some “some hindrance to the third party’s
`
`ability to protect his or her own interest.” Id. (citing Powers v. Ohio, 499 U.S. 400, 410–11
`
`(1991)) (additional citations omitted). Here, however, St. Angelo does not assert that he has any
`
`particular relationship with all other drug users and dealers, nor does he articulate any reason that
`
`these unnamed individuals are hindered from protecting their own interests. In opposition to the
`
`State of Indiana’s motion to dismiss, St. Angelo asserts that he is “the only person (other than a
`
`few of his students) who seems to know what the rights of drug dealers are,” and claims this
`
`Court should grant him third-party standing based on his “unique knowledge.” [Filing No. 19 at
`
`16.] As explained above, however, St. Angelo’s understanding of “the rights of drug dealers” is
`
`seriously flawed—and, even if weren’t, such “knowledge” is not sufficient to allow St. Angelo to
`
`sue on behalf of thousands (if not millions) of absent individuals.
`
`12
`
`

`

`Case 1:19-cv-02754-JMS-DLP Document 34 Filed 10/24/19 Page 13 of 17 PageID #: 306
`
`C.
`
`St. Angelo Is Not Entitled to Injunctive Relief
`
`St. Angelo requests preliminary and permanent injunctive relief barring the federal
`
`government and State of Indiana from arresting, prosecuting, and incarcerating people who
`
`possess, grow, or deal illegal drugs, along with “an injunction against the use of state and U.S.
`
`Article III judicial courts to criminally prohibit drug possession and drug dealing within the fifty
`
`United States, where drug possession is a natural right and where unauthorized drug dealing is
`
`regulated.” [Filing No. 1 at 13, 19, 23, 26, 30–31, 34, 36 (Compl. ¶¶ 13(c), 30(c), 40(c), 45(c),
`
`57(b), 64(b), 69(b)); see also Filing No. 30-1 at 10, 15, 18, 21, 26, 29, 31 (Am. Comp. ¶¶ 23(c),
`
`36(c), 45(c), 49(c), 61(b), 67(b), 72(b).] The same defects that render Article III jurisdiction
`
`lacking show that St. Angelo is not entitled to injunctive relief. See City of Los Angeles v. Lyons,
`
`461 U.S. 95, 103 (1983) (“[C]ase or controversy considerations obviously shade into those
`
`determining whether the complaint states a sound basis for equitable relief.”) (citation and
`
`quotation marks omitted)
`
`Injunctive relief is an “extraordinary remedy” that “is not granted routinely” and is
`
`usually denied “unless the right to relief is clear.” 11A Wright & Miller, Federal Practice &
`
`Procedure § 2942 (3d ed.); see also Goodman v. Ill. Dep’t of Fin. and Prof’l Regulation, 430
`
`F.3d 432, 437 (7th Cir. 2005) (preliminary injunction is an “extraordinary and drastic remedy,
`
`one that should not be granted unless the movant, by a clear showing, carries the burden of
`
`persuasion.”) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)) (emphasis in original).
`
`For preliminary injunctive relief, plaintiff must establish: (1) a reasonable likelihood of success
`
`on the merits; (2) there is no adequate remedy at law; (3) he will suffer irreparable harm which,
`
`absent injunctive relief, outweighs the irreparable harm the respondent will suffer if the
`
`injunction is granted; and (4) the public interest will not be harmed by the injunction. Goodman,
`
`13
`
`

`

`Case 1:19-cv-02754-JMS-DLP Document 34 Filed 10/24/19 Page 14 of 17 PageID #: 307
`
`430 F.3d at 437. The test for permanent injunctive relief is similar. See, e.g., eBay Inc. v.
`
`MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (listing factors as irreparable injury, whether
`
`there are inadequate remedies available at law to compensate for the injury, balance of hardships,
`
`and public interest).
`
`St. Angelo cannot show a reasonable likelihood of success on the merits because his suit
`
`is premised on the erroneous belief that he is permitted to obtain and use illegal drugs. He cannot
`
`show that his distorted interpretation of the Controlled Substances Act is even colorable—let
`
`alone make a “clear showing” that he is correct. Goodman, 430 F.3d at 437.
`
`Second, injunctive relief requires a showing of a “real and immediate threat of repeated
`
`injury” that is concrete and particularized as to the plaintiff. Lyons, 461 U.S. at 102 (citation
`
`omitted); see also Baker v. McCorkle, No. 1:16-cv-03026-JMS-MPB, 2018 WL 1400076, at *3
`
`(S.D. Ind. Mar. 20, 2018). As discussed above, St. Angelo has not experienced a concrete and
`
`particularized injury relating to his unlawful drug use, so he cannot satisfy this element.
`
`Furthermore, the public interest considerations and balance of hardships weigh heavily
`
`against St. Angelo. As the Supreme Court has observed, “a court should be particularly cautious
`
`when contemplating [injunctive] relief that implicates public interests.” Salazar v. Buono, 559
`
`U.S. 700, 714 (2010). In enacting the CSA, Congress made clear that this regulatory regime was
`
`essential for “maintain[ing] the health and general welfare of the American people,” based on
`
`harms caused by illegal distribution, possession, and improper use of controlled substances. 21
`
`U.S.C. § 801(1)–(2); see also Raich, 545 U.S. at 12–13 (discussing public welfare concerns
`
`undergirding CSA). These public health considerations drastically outweigh St. Angelo’s
`
`personal desire to use marijuana for recreational purposes.
`
`14
`
`

`

`Case 1:19-cv-02754-JMS-DLP Document 34 Filed 10/24/19 Page 15 of 17 PageID #: 308
`
`D.
`
`St. Angelo Cannot Obtain Relief under the Declaratory Judgment Act
`
`Likewise, St. Angelo is not entitled to declaratory relief. [See Filing No. 1 at 14 (Compl.
`
`¶ 16); see also Filing No. 30-1 at 1 (Am. Compl. ¶ 2).] The Declaratory Judgment Act applies
`
`only in “a case of actual controversy,” 28 U.S.C. § 2201(a), so Article III standing is a
`
`prerequisite. 10B Wright & Miller, Federal Practice and Procedure § 2757 (4th ed.); see also
`
`Hyatt Intern. Corp. v. Coco, 302 F.3d 707, 712 (7th Cir. 2002) (“[A] declaratory action, like any
`
`other action, must satisfy Article III, which allows federal courts to act only in the event of actual
`
`‘cases and controversies.’”); Griggers v. Shopf, No. 1:17-cv-03410-JMS-DML, 2018 WL
`
`1505014, at *8 (S.D. Ind. Mar. 27, 2018).
`
`Thus, St. Angelo cannot avoid dismissal of this suit just by invoking the Declaratory
`
`Judgment Act. [See Filing No. 19 at 11–12 (arguing that the “unique declaratory form of relief”
`
`should be granted because it would “resolve the imminent controversies between the parties
`
`before they precipitate in scope and expense”).] To state a claim for declaratory relief, the
`
`complaint must allege an “immediate and real, rather than merely speculative” injury. Hyatt, 302
`
`F.3d at 712. But St. Angelo only alleges speculative harm, i.e., the possibility that he will be
`
`subject to arrest for his marijuana use. He fails to allege any “imminent” and “credible threat” of
`
`future injury to sustain this suit. Susan B. Anthony List, 134 S. Ct. at 2342. And even if this Court
`
`were inclined to entertain this request for a declaratory judgment, St. Angelo’s reading of the
`
`Controlled Substances Act is demonstrably wrong, and this Court should not follow his
`
`misreading of the statute.
`
`E.
`
`Dismissal with Prejudice Is Warranted
`
`The United States acknowledges that pro se complaints are entitled to leniency, and that a
`
`

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