The opinion of the court was delivered by: Jeremy Fogel, District Judge
ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY
INJUNCTION AND GRANTING DEFENDANTS' MOTION TO DISMISS WITH
LEAVE TO AMEND
Plaintiffs seek a preliminary injunction enjoining Defendants from conducting further raids or seizures against Plaintiff Wo/Men's Alliance for Medical Marijuana ("WAMM") and its member-patients, and from conducting raids or seizures against patients using marijuana for medicinal purposes Page 2 in compliance with California's medicinal marijuana statute within the City and County of Santa Cruz. Defendants move to dismiss Plaintiffs' complaint. Both motions are opposed. The Court has read and considered the briefing and evidence submitted by the parties and has considered the arguments of counsel presented at the hearing on July 7, 2003. For the reasons set forth below, Plaintiffs' motion for preliminary injunction will be denied and Defendants' motion to dismiss will be granted with leave to amend.
Plaintiff WAMM is a collective hospice organization located in Davenport, California that maintains an office in Santa Cruz, California. See Declaration of Valerie Corral ("Corral Decl.") ¶ 10. It has approximately 250 member-patients who suffer from HIV or AIDS, multiple sclerosis, glaucoma, epilepsy, various forms of cancer, and other serious illnesses. See Id. The vast majority of WAMM members are terminally ill. See Id. WAMM assists seriously ill and dying patients by providing them with the opportunity to cultivate marijuana plants for their personal medicinal use and to produce marijuana medications collectively used by WAMM members to alleviate their pain and suffering. See Id. ¶¶ 13, 18. Both the cultivation and use of marijuana by WAMM members are carried out only on the recommendation of the patients' respective physicians in compliance with California's medicinal marijuana statute. See Id. ¶¶ 11, 13. Members of WAMM assist in cultivating marijuana plants to the extent of their physical abilities; they do not purchase, sell, or otherwise distribute marijuana. See Id. ¶¶ 11, 13, 20. WAMM also provides community support to seriously ill and dying patients through weekly meetings and other forms of outreach. See Id. ¶ 12. WAMM is supported by voluntary contributions, and its members are not charged for their use of marijuana. See Id. ¶ 20.
Plaintiff Valerie Corral, the executive director of WAMM, and her husband Michael Corral, her primary caregiver, founded the organization in 1993. See Id. ¶ 10. The Corrals reside on a farm in Davenport, California, where they permit members of WAMM to cultivate marijuana plants for medicinal use. See Id. Valerie Corral and Plaintiffs Eladio V. Acosta, James Daniel Baehr, Michael Cheslosky, Jennifer Lee Hentz, Dorothy Gibbs, and Harold F. Margolin (collectively "the Patient-Plaintiffs") Page 3 use medicinal marijuana on the recommendation of their respective physicians to alleviate pain and suffering caused by their illnesses and to treat certain other symptoms.
The Controlled Substances Act, 21 U.S.C. § 801, et seq. ("CSA"), provides that "[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1)*fn1. The CSA divides drugs and certain other substances Page 4 into five categories, or schedules, that impose varying restrictions on access to a drug according to the schedule in which the drug has been placed. See 21 U.S.C. § 812(a). A drug is assigned to Schedule I, the most restrictive schedule, if (1) it "has a high potential for abuse," (2) it "has no currently accepted medical use in treatment in the United States," and (3) "[t]here is a lack of accepted safety for use of the drug . . . under medical supervision." 21 U.S.C. § 812(b)(1). Marijuana is assigned by statute to Schedule I. See 21 U.S.C. § 812(c).*fn2 "Schedule I drugs may be obtained and used lawfully only by doctors who submit a detailed research protocol for approval by the Food and Drug Administration and who agree to abide by strict recordkeeping and storage rules." Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131, 1133 (D.C. Cir. 1994).
California's medicinal marijuana statute, the Compassionate Use Act of 1996, was enacted by California voters on November 5, 1996, when they passed Proposition 215. See Cal. Health & Safety Code § 11362.5. The statute creates an exemption from state laws that prohibit the cultivation and use of marijuana by permitting patients and their primary caregivers to possess and cultivate marijuana for personal medicinal use upon a physician's recommendation or approval. Id. § 11362.5(d). There is no dispute that the activities of WAMM and the Patient-Plaintiffs, each of whose primary caregiver also is a WAMM member, are legal under the statute.
Prior to passage of Proposition 215, Plaintiff County of Santa Cruz ("the County") had adopted an ordinance directing County officials to use their authority to support the availability of marijuana for medicinal use. See Santa Cruz County Code Ch. 7.122.020 — 7.1222.060. Following enactment of the Compassionate Use Act of 1996 by California voters, Plaintiff City of Santa Cruz ("the City") Page 5 enacted additional legislation to facilitate implementation of the statute. See Santa Cruz Municipal Code Ch. 6.90.010, et seq. Among other things, the City's medicinal marijuana ordinance authorizes the City to deputize individuals and organizations as medicinal marijuana providers to assist the City in implementing the statute. Id. Ch. 6.90.040(1).
On September 5, 2002, between twenty and thirty armed agents led by officers of the federal Drug Enforcement Administration ("DEA") arrived at the Corrals' property to execute a search warrant. See Corral Decl. ¶ 27. The DEA agents forcibly entered the premises, pointed loaded firearms at the Corrals, forced them to the ground, and handcuffed them. See Id. The Corrals subsequently were transported to the federal courthouse in San Jose, where they were released without being charged. See Id. ¶ 27, 28. DEA agents remained on the premises for eight hours, seizing 167 marijuana plants, many of the WAMM members' weekly allotments of medicinal marijuana, various documents and records, and other items. See Id. ¶ 28.
Less than two weeks after the DEA's September 5, 2002 raid, the County's Board of Supervisors adopted a resolution condemning the raid and urging the federal government not to indict the Corrals for their activities. See Ex. B to Declaration of Ellen Pirie ("Pirie Decl."). On September 17, 2002, the City permitted WAMM members to receive their weekly allotments of medicinal marijuana at the Santa Cruz City Hall. See Corral Decl. ¶ 33; Declaration of Emily Reilly ("Reilly Decl.") ¶ 5. The City Council subsequently adopted a resolution deputizing WAMM and the Corrals to function as City-authorized medicinal marijuana providers pursuant to the City's medicinal marijuana ordinance. See Ex. A to Reilly Decl.
On September 24, 2002, WAMM and the Corrals filed a related action against the federal government in this Court seeking return of the marijuana plants and other property seized in the September 5, 2002 raid pursuant to Federal Rule of Criminal Procedure 41(e). See Wo/Men's Alliance for Medical Marijuana, et al. v. United States, No. 02-MC-7012 JF (N.D. Cal. filed Sept. 24, 2002).*fn3 The movants argued that their conduct did not affect interstate commerce and that Page 6 application of the CSA to such conduct thus constituted an unlawful exercise of Congressional powers under the Commerce Clause. This Court concluded, however, that disposition of the movants' motion was controlled by Ninth Circuit precedent that precluded the relief sought. Accordingly, the Court denied the motion for return of property by order issued December 3, 2002. See Wo/Men's Alliance forMed. Marijuana v. United States, No. 02-MC-7012 JF, 2002 U.S. Dist. LEXIS 26389 (N.D. Cal. Dec. 3, 2002). That decision has been appealed to the United States Court of Appeals for the Ninth Circuit, and the appeal is scheduled for oral argument in mid-September 2003.
On April 23, 2003, Plaintiffs filed the instant action against Defendants John Ashcroft, Attorney
General of the United States; John B. Brown HI, Acting Administrator of the DEA*fn4; John P. Walters, Director of the Office of National Drug Control Policy; and 30 Unknown DEA Agents, seeking to enjoin alleged violations of their constitutional rights. They assert the following claims: (1) deprivation of fundamental rights under the Fifth and Ninth Amendments to alleviate pain and suffering and to control the circumstances of one's own death; (2) deprivation of the fundamental right to follow the recommendations of one's physician; (3) unlawful exercise of Congressional powers under the Commerce Clause; and (4) violation of the Tenth Amendment. Plaintiffs also seek a declaration that WAMM and Valerie Corral are immune from civil and criminal liability under the Controlled Substances Act for their activities, as well as damages for Defendants' alleged violations of their constitutional rights.
A. Motion for Preliminary Injunction
The primary purpose of a preliminary injunction is to preserve the status quo pending a trial on the merits. Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). A party seeking a preliminary injunction must show either (1) a Page 7 combination of probable success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and that the balance of hardships tips in its favor. Roe v. Anderson, 134 F.3d 1400, 1401-02 (9th Cir. 1998), aff'd. Saenz v. Roe, 526 U.S. 489 (1999). These formulations represent "two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir. 1987). However, "`even if the balance of hardships tips decidedly in favor of the moving party, it must be shown as an irreducible minimum that there is a fair chance of success on the merits.'" Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (citing Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984)). Depending on the nature of the case, the court also may consider whether the public interest will be advanced by granting the requested relief Id.; Westlands Water Dist. v. Natural Resources Defense Council, 43 F.3d 457, 459 (9th Cir. 1994).
A complaint may be dismissed only if it is certain that the plaintiff can prove no set of facts entitling HIM or her to relief. Conley v. Gibson, 355 U.S. 41, 45-6 (1957). When a court considers a motion to dismiss, all factual allegations in the complaint are taken as true and construed in the light most favorable to the nonmoving party. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). "However, the court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-755 (9th Cir. 1994). A court's review is limited to the face of the complaint, documents referenced by the complaint the authenticity of which is not contested, and matters of which the court may take judicial notice. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir. 1991); In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1405 n. 4 (9th Cir. 1996), cert. denied, Anderson v. Clow, 520 U.S. 1103 (1997).
When the court grants a motion to dismiss, "leave to amend should be granted unless the district court `determines that the pleading could not possibly be cured by the allegation of other facts.'" Page 8 United States v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (citing Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)).
A. Motion for Preliminary Injunction
Under any formulation of the test for obtaining a preliminary injunction, the moving party must demonstrate that there is a significant threat of irreparable injury. Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374, 1376 (9th Cir. 1985). Accordingly, the Court first will assess whether Plaintiffs ...