Petition for Writ of Certiorari — Ben Adam, Petitioner v. William P. Barr, Attorney General, et al.

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APPENDIX

TABLE OF CONTENTS

Appendix A Summary Order in the United States

Court of Appeals for the Second

Circuit

App. 1

(November 14, 2019). . .

Appendix B Opinion & Order and Judgment in the

United States District Court Southern

District of New York

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(March 29, 2019)...........

Appendix C 42 U.S.C. § 2000bb-l(c)

App. 24

84 Stat. 1242..................

App. 24

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

19-925

[Filed November 14, 2019]

Ben Adam,

Plaintiff-Appellant,

v.

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William P. Barr, United States Attorney

General, Geoffrey Steven Berman, United

States Attorney for the Southern District of )

New York, Uttam Dhillon, Administrator of )

the United States Drug Enforcement

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Administration,

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Defendants-Appellees.

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SUMMARY ORDER

Rulings by Summary Order Do Not Have

Precedential Effect. Citation to a Summary Order

Filed on or after January 1,2007, Is Permitted and

Is Governed by Federal Rule of Appellate

Procedure 32.1 and this Court’s Local Rule 32.1.1.

When Citing a Summary Order in a Document Filed

App. 2

with this Court, a Party must Cite Either the

Federal Appendix or an Electronic Database (With

the Notation “Summary Order”). A Party Citing to

a Summary Order must Serve a Copy of it on Any

Party Not Represented by Counsel.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 14th day of November,

two thousand nineteen.

PRESENT:

ROBERT D. SACK,

PETER W. HALL,

JOSEPH F. BIANCO,

Circuit Judges.

FOR PLAINTIFF-APPELLANT: Ben Adam, pro se,

New York, NY.

FOR DEFENDANTS-APPELLEES: Jennifer Jude,

Benjamin H. Torrance, for Geoffrey S. Berman, United

States Attorney for the Southern District of New York,

New York, NY.

Appeal from a judgment of the United States

District Court for the Southern District of New York

(Nathan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, AD JUDGED, AND DECREED that the

judgment of the district court is AFFIRMED.

Ben Adam, proceeding pro se and under a

pseudonym, sued the United States Attorney General,

App. 3

the United States Attorney for the Southern District of

New York, and the Administrator of the Drug

Enforcement Administration under the Religious

Freedom Restoration Act (“RFRA”), 42 U.S.C.

§ 2000bb-l(a), the Free Exercise Clause of the First

Amendment, and the Equal Protection Clause of the

Fifth and Fourteenth Amendments. As the founder of

an Orthodox Jewish organization, Adam believes that

the psychoactive properties of the cannabis plant help

induce a pre-prophetic ecstatic state which can connect

an individual to God and the divine realms. He claims

a right to use cannabis for religious purposes and

contends that the defendants should not enforce the

Controlled Substances Act (“CSA”), listing marijuana

as a controlled substance, against him. The district

court dismissed Adam’s amended complaint, ruling

that he did not have standing to bring a preenforcement challenge for declaratory and injunctive

relief. Adam appealed. We assume the parties’

familiarity with the underlying facts, procedural

history of the case, and issues on appeal.

I. Legal Standard

“We review de novo a district court’s dismissal of a

complaint for lack of standing.” Selevan v. N.Y.

Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009).

“Standing under Article III of the Constitution

requires that an injury be concrete, particularized, and

actual or imminent; fairly traceable to the challenged

action; and redressable by a favorable ruling.” Cayuga

Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016)

(quoting Monsanto Co. v. Geertson Seed Farms, 561

U.S. 139, 149 (2010) (internal quotation marks

App. 4

omitted)). For an alleged ■ injury to support

constitutional standing, it cannot be “conjectural or

hypothetical.” Susan B. Anthony List v. Driehaus, 573

U.S. 149, 158 (2014) (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992) (internal quotation

marks omitted)).

Where, as here, a plaintiff asserts injury based on

the threat of prosecution, the plaintiff need not “expose

himself to liability before bringing suit to challenge the

basis for the threat—for example, the constitutionality

of a law threatened to be enforced.” Medlmmune, Inc.

v. Genentech, Inc., 549 U.S. 118, 128—29 (2007)

(collecting cases). Rather, pre-enforcement review is

available where the “circumstances . . . render the

threatened enforcement sufficiently imminent.” Susan

B. Anthony List, 573 U.S. at 159; see also Babbitt v.

United Farm Workers Nat’l Union, 442 U.S. 289, 298

(1979) (plaintiff “must demonstrate a realistic danger

of sustaining a direct injury as a result of the statute’s

operation or enforcement”). A sufficiently imminent

injury can be established by plausible allegations that

a plaintiff intends to engage in conduct proscribed by a

statute, and “there exists a credible threat of

prosecution thereunder.” Susan B. Anthony List, 573

U.S. at 160 (quoting Babbitt, 442 U.S. at 298). A

credible threat is not established by “imaginary or

speculative” fears of prosecution. Knife Rights, Inc. v.

Vance, 802 F.3d 377, 384 (2d Cir. 2015) (quoting

Babbitt, 442 U.S. at 298). Although “courts are

generally ‘willing to presume that the government will

enforce the law as long as the relevant statute is recent

and not moribund,’” Cayuga Nation, 824 F.3d at 331

(quoting Hedges v. Obama, 724 F.3d 170, 197 (2d Cir.

App. 5

2013)), the mere existence of a law prohibiting intended

conduct does not automatically confer Article III

standing, see Knife Rights, 802 F.3d at 384 (“The

identification of a credible threat sufficient to satisfy

the imminence requirement of injury in fact necessarily

depends on the particular circumstances at issue.”).

II. Discussion

Adam argues that he has sufficiently alleged

standing because “there is an ongoing threat of

prosecution.” Appellant’s Br. at 10. He then cites

numerous cases (most from outside this Circuit):

(1) where courts have found pre-enforcement standing,

without analyzing possible similarities to his case;

(2) where ripeness requirements have been relaxed

when First Amendment rights were at stake, without

explaining why or how First Amendment ripeness

requirements may apply to pre-enforcement standing

challenges; and (3) where a failure to disclaim intent to

enforce a law in response to litigation can confer

standing. He asserts that he has validly claimed that

his right to exercise his religion is being burdened

because his complaint stated that he has an immediate

intent to use cannabis as part of his religious practice.

He refers generally to his essay entitled The Path to the

Tree: Prophecy and its Pursuit in the Jewish Tradition,

which, he contends, was incorporated into his

complaint by reference and “thoroughly discussed the

purpose and circumstances of his intended cannabis

use.” Id. at 17. He also refers to a January 2018

memorandum authored by a former U.S. Attorney

General in which the current Administration

announced its intention to prosecute cannabis

App. 6

possession, distribution, and cultivation. This

memorandum, Adam contends, makes it clear that he

is “under a constant threat of prosecution,” which

limits his religious practices. Id. at 18.

Adam’s contentions on appeal essentially repeat the

conclusory arguments he made in district court

concerning an amorphous threat of prosecution based

on his intended, but illegal, use of marijuana. He

reasons that because he intends to use marijuana, and

such usage is against a law that the federal

government enforces, he could be prosecuted. But he

does not provide insight into any “particular

circumstances at issue” here that could support finding

a “credible” threat of prosecution. Knife Rights, 802

F.3d at 384. He has not alleged, for example, that he

plans to possess and distribute marijuana to the

members of his organization; nor could he, given his

statement that, at present, his organization has only

one member—Adam himself. At most, as the district

court concluded, Adam has merely alleged an intention

to possess marijuana for his own use. But he does not

claim that the CSA has been enforced against him in

the past, nor that he has ever been threatened with

prosecution.1 Nor has he made any allegation

concerning the past or present enforcement of the CSA

in general from which a credible threat could be

inferred in this case.

1 Indeed, Adam alleges that he has never been arrested or charged

with any marijuana-related crimes, in relation to his religious

beliefs or otherwise.

App. 7

The cases that Adam cites to demonstrate that the

Government has enforced the CSA and has imprisoned

people for violating the statute are inapposite. Either

they do not involve criminal convictions for marijuana,

see, e.g., United States v. Lafley, 656 F.3d 936, 940—42

(9th Cir. 2011) (finding "no violation of RFRA where

conditions of supervised release prevented religious use

of marijuana following conviction for conspiracy to

manufacture and possess with intent to distribute

methamphetamine), or they involve distribution rather

than possession, see, e.g., United States v. Christie, 825

F.3d 1048, 1054 (9th Cir. 2016) (prosecution for

distributing large quantities of cannabis as part of

defendants’ Hawaii Cannabis Ministry). These cases do

not demonstrate that the CSA is enforced against the

kind of personal religious use that Adam allegedly

intends to engage in.

Even the 2018 memorandum by the U.S. Attorney

General concerning enforcement of the CSA—which the

district court refused to consider on the motion to

dismiss—does not particularize the CSA’s enforcement

in relation to Adam; he would simply be at risk just

like any other person in the country who might violate

the. CSA. While Adam argues that “a court is to assume

that the government will enforce its own laws,”

Appellant’s Br. at 22, that presumption, in and of itself,

is not sufficient to confer standing, as courts also

consider the extent of that enforcement in determining

whether a credible threat of prosecution exists. For

example, in Cayuga Nation, we found that the

plaintiffs had alleged a credible threat of prosecution

not only because their behavior was clearly prohibited

by an ordinance, but also because the town “announced

App. 8

its intention to enforce the Ordinance” against the

plaintiffs and warned the plaintiffs that failure to

comply might constitute an offense punishable by fine,

imprisonment, or both. 824 F.3d at 331; see also Susan

B. Anthony List, 573 U.S. at 164 (discussing history of

past enforcement of a statute against the petitioners,

for the same conduct, as being good evidence that “the

threat of enforcement is not ‘chimerical’” (quoting

Steffel v. Thompson, 415 U.S. 452, 459 (1974))); Knife

Rights, 802 F.3d at 385-87 (fear of prosecution not

conjectural or hypothetical “given that defendant

[district attorney] recently identified [plaintiff] as a

[state criminal law] violator and pursued enforcement

action against it”).

Because Adam has failed to allege facts sufficient to

demonstrate a credible threat of prosecution under the

CSA, the threat of enforcement against him is

insufficiently imminent to confer Article III standing.

See Knife Rights, 802 F.3d at 384.

We have reviewed the remainder of Adam’s

arguments and find them to be without merit. For the

foregoing reasons, the judgment of the district court is

AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

App. 9

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

18-CV-2106 (AJN)

[Filed March 29, 2019]

Ben Adam,

Plaintiff,

—v—

William Barr, et al.,

Defendants.

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OPINION & ORDER

ALISON J. NATHAN, District Judge

App. 10

Pro se Plaintiff “Ben Adam”1 brings this action for a

declaratory judgment and an order enjoining

Defendants2 from enforcing the Controlled Substances

Act (“CSA”), asserting claims under the Religious

Freedom Restoration Act (“RFRA”), the Free Exercise

Clause of the First Amendment, and the Equal

Protection Clause of the Fifth and Fourteenth

Amendments. On July 10, 2018, Defendants filed a

motion to dismiss the amended complaint in this case.

Dkt. No. 14. For the following reasons, Defendants’

motion is granted.

I.

Background

A. Factual Background

The following facts • are drawn from Plaintiffs

Amended Complaint (“Am. Compl.”), Dkt. No. 13.

Plaintiff is the founder and president of Bnei

Haneviim, a “religious not-for-profit organization”

1 Plaintiff proceeds under a pseudonym, “Ben Adam,” because of

“the stigma attached to the entheogenic use of cannabis and the

fear of prosecution.” Am. Compl. THJ 1, 19. At this stage,

Defendants do not oppose. Dkt. No. 21 at 4 n.3. The Second Circuit

has provided a non-exhaustive, ten factor analysis for determining

when a party should be permitted to proceed under a pseudonym.

See Sealed Plaintijfv. Sealed Defendant, 537 F.3d 185, 188-90 (2d

Cir. 2008). It is not clear given the facts of the case whether

Plaintiff would be able to meet the standard in this Circuit.

However, because Defendants do not oppose and the Court grants

the motion to dismiss, it does not need to reach this question.

2 Under Federal Rule of Civil Procedure 25(d), William Barr has

been automatically substituted for Jefferson B. Sessions as a

defendant and Uttam Dhillon has been automatically substituted

for Robert W. Patterson as a defendant.

App. 11

formed under the laws of New York State and

headquartered in New York City. Am. Compl. ^ 10.

Bnei Haneveiim is an organization that is open to

“orthodox Jews who accept the six hundred and

thirteen commandments of the Torah . . . and who

believe in the potential of cannabis to help facilitate

prophetic states and religious experiences” as well as

“the lifestyle espoused by” Plaintiff. Am. Compl. f 11.

Plaintiff believes that when mentally and physically

healthy “adherents to the divine law” imbibe the

“cannabis plant,” “in an appropriate environment,” the

psychoactive properties of the “cannabis plant” can

help induce a “pre-prophetic ecstatic state” that “can

connect an individual to God and divine realms,

leading to perception of God,” as well as “higher forms

of prophecy.” Am. Compl. f 5. He also believes that use

of cannabis for such purposes “is a fulfillment of

several divine commandments, including ‘to cling to

God,’ ‘to know Him,’ and ‘to love Him.’” Am. Compl.

1 6. Plaintiff alleges that cannabis is an “invaluable

tool” achieving these preprophetic states. Am. Compl.

U 9. Plaintiff has also written a text called “The Path to

the Tree: Prophecy and its Pursuit in the Jewish

Tradition” expressing his views regarding the religious

use of cannabis. Am. Comp ^ 7.

Plaintiff alleges he has an immediate intention to

use cannabis for religious purposes. Am. Compl. f 8.

Plaintiff contends that it is Defendants’ “position that

cannabis is a Schedule I controlled substance pursuant

to 21 U.S.C. § 812 and 21 C.F.R. [§] 1308.11,” and notes

severe criminal and civil penalties are prescribed for

“what is deemed to be the unlawful importation,

App. 12

possession^] and distribution of cannabis pursuant to

21 U.S.C. §§ 841—44.” Am. Compl. If 12. Plaintiff

alleges that he has not been arrested or charged with

any crime, but that there is a “constant threat of

prosecution.” Am. Compl.

14-15. He alleges that his

prosecution for a cannabis-related offense could cause

him individual harm through the risk of criminal

sanctions and “desecration of the name of God” because

of the likelihood that any defense of his conduct would

be rejected by the prosecution and the court. Am.

Compl. ^ 16-17. Further, a prohibition on using

cannabis prevents Plaintiff from “freely practicing in

accordance with his religious beliefs.” Am. Compl. f 9.

Without declaratory relief, Plaintiff “suffers the harm

of being deprived safe access to products available to

other purchases of cannabis.” Am. Compl. f 18.

Based on his foregoing professed religious beliefs,

Plaintiff alleges violations of: RFRA (Count One), the

Free Exercise Clause of the First Amendment (Count

Two), and the Equal Protection Clause of the Fifth and

Fourteenth Amendments (Count Three). Am. Compl.

lH[20-29. Plaintiff seeks declaratory and injunctive

relief from enforcing the CSA against Plaintiff.

B. Procedural Background

Plaintiff filed his original complaint on March 8,

2018, seeDkt. No. 1., and on June 22, 2018, Defendants

filed.their initial motion to dismiss. Dkt. No. 10. The

Court issued an Order explaining to Plaintiff that he

was on notice that declining to amend his pleadings to

timely respond to arguments in Defendants’ motion to

dismiss may constitute a waiver of his right to use the

amendment process to cure any defects that had been

App. 13

made apparent by Defendants’ motion. See Dkt. No. 12.

On June 27, 2018, Plaintiff filed his amended

complaint, Dkt. No. 13, and on July 10, 2018,

Defendants filed the motion to dismiss presently before

this Court. Dkt. No. 14.

II.

Legal Standard

In deciding a motion to dismiss pursuant to Rule

12(b)(6), the Court accepts the factual allegations in the

Complaint as true and draws all reasonable inferences

in favor of the non-moving party. McCarthy v. Dun &

Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). To

survive a motion to dismiss, the complaint must

include “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. u. Twombly, 550

U.S. 544, 570 (2007). A plaintiffs complaint “requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not

do.” Id. at 555. However, “a pro se complaint, however

inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

If a party is proceeding pro se, a court shall construe

their complaint “to raise the strongest claim it

suggests.” Chavis v. Chappius, 618 F.3d 162, 170 (2d

Cir. 2010) (internal brackets omitted). In resolving a

motion to dismiss, review is limited to “the facts as

asserted within the four corners of the complaint, the

documents attached to the complaint as exhibits, and

any documents incorporated in the complaint by

reference.” McCarthy, 482 F.3d at 191.

App. 14

III.

Discussion

A. Plaintiff Has Not Sufficiently Alleged

Standing to Bring a Preenforcement

Challenge

As a threshold matter, Defendants argue that

Plaintiff has failed to allege standing because he has

failed to allege a concrete or actual injury. For the

reasons below, drawing all reasonable inferences in the

pro se Plaintiffs favor, the Court concludes that

Plaintiff has failed to allege a sufficiently imminent

injury to confer standing.

1. Legal Standard

To sufficiently allege Article III standing, a plaintiff

must allege “(1) an ‘injury in fact,’ (2) a sufficient

‘causal connection between the injury and the conduct

complained of,’ and (3) a likel[ihood]’ that the injury

‘will be redressed by a favorable decision.’” Knife

Rights, Inc. v. Vance, 802 F.3d 377, 383 (2d Cir. 2015)

(quoting Susan B. Anthony List v. Driehaus, 573 U.S.

149, 157-58 (2014)). As to the first element, “[f]or an

alleged injury to support constitutional standing, it

must be ‘concrete and particularized’ and ‘actual or

imminent, not conjectural or hypothetical.’” Knife

Rights, 802 F.3d at 383 (quoting Susan B. Anthony

List, 573 U.S. at 158).

As a general matter, “[p]reenforcement challenges

to criminal statutes... are cognizable under Article III.”

Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir.

2016). When a Plaintiff “assert[s] injury from

threatened prosecution, the Supreme Court has

instructed that imminence does ‘not require a plaintiff

App. 15

to expose himself to liability before bringing suit to

challenge the basis for the threat—for example, the

constitutionality of a law threatened to be enforced.”’

Knife Rights, 802 F.3d at 384 (quoting Medimmune,

Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007)).

Instead, “in the context of pre-enforcement challenges

to criminal statutes, imminent injury can be

established by plausible allegations that a plaintiff

‘inten[ds] to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed

by ... statute, and there exists a credible threat of

prosecution thereunder.’” Id. (quoting Susan B.

Anthony List, 573 U.S. at 159). The credible fear of

prosecution standard ‘“sets a low threshold and is quite

forgiving to plaintiffs seeking such preenforcement

review,’ as courts are generally ‘willing to presume that

the government will enforce the law as long as the

relevant statute is recent and not moribund.’” Cayuga

Nation, 824 F.3d at 331 (quoting Hedges v. Obama, 724

F.3d 170, 197 (2d Cir. 2013)). However, ‘“[t]he

identification of a credible threat sufficient to satisfy

the imminence requirement of injury in fact necessarily

depends on the particular circumstances at issue.’”

Cayuga Nation, 824 F.3d at 331 (quoting Knife Rights,

802 F.3d at 384). A credible threat will not be found

“where plaintiffs do not claim that they have ever been

threatened with prosecution, that a prosecution is

likely, or even that a prosecution is remotely possible.”

Id. Thus, fears that are “imaginary or speculative” will

not satisfy the credible threat standard. Knife Rights,

802 F.3d at 384 (quoting Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 298 (1979)). The

requirement that a fear of prosecution must be credible

extends equally to cases involving the Free Exercise

App. 16

Clause and RFRA. See Roman Catholic Archdiocese of

New York v. Sebelius, 907 F. Supp. 2d 310,322

(E.D.N.Y. 2012) (requiring “actual and well-founded

fear that the law will be enforced against” the plaintiff

(quoting Vermont Right to Life Comm., Inc. v. Sorrell,

221 F.3d 376, 382 (2d Cir.2000))).

2. Plaintiff Has Not Sufficiently Alleged

a Credible Threat of Prosecution

To sufficiently allege standing on his

preenforcement claim, Plaintiff must therefore allege

both a concrete intention to violate the law and the

credible threat of prosecution if he were to do so. See

Knife Rights, 802 F.3d at 390. The Court will analyze

each in turn. For the reasons below, the Court finds

that even assuming that Plaintiff has sufficiently

alleged a concrete intention to violate the CSA for

religious purposes, he has failed to sufficiently allege a

credible fear of prosecution for this conduct by

Defendants.

Plaintiffs only allegation regarding concrete intent

to violate the law is that he has “an immediate

intention to use cannabis for religious purposes.” Am.

Compl. f 8. Besides this general allegation, Plaintiff

has not alleged how he would seek to obtain marijuana,

how or where he intends to use it, nor how much

marijuana he intends to use. Nor does Plaintiff include

any allegations of prior marijuana use for religious

purposes. The majority of Plaintiffs amended

complaint only speaks to his religious beliefs about

marijuana, not his usage. See Am. Compl.

5-7, 9,

10. In his prayer for relief Plaintiff does request relief

from enforcement of the CSA against himself for the

App. 17

“religious use of cannabis, including its possession,

consumption, importation and distribution to members

of the Bnei Haneviim.” Am. Compl.

Prayer for

Relief 1-2. Yet nowhere in his amended complaint does

Plaintiff actually allege a concrete intent to engage in

that broader set of activities. Nonetheless, Defendants

do not dispute that the CSA prohibits the unauthorized

possession of marijuana. Dkt. No. 15 at 10 n.5; Dkt. No.

21 at 2. Thus, at most, Plaintiff has sufficiently alleged

a concrete intention to violate the CSA by possessing

marijuana for his own religious use.

Even assuming such a concrete intention, however,

Plaintiff does not sufficiently allege a credible fear of

prosecution by the Defendants for that conduct. As

discussed above, Plaintiff must allege “that he has []

been threatened with prosecution, that a prosecution is

likely, or[] that a prosecution is remotely possible.”

Knife Rights, 802 F.3d at 384 (internal quotation marks

omitted). This inquiry turns on “the particular

circumstances at issue.” Cayuga Nation, 824 F.3d at

331 (internal quotation marks omitted). Plaintiffs only

express allegation relating to the threat of prosecution

is his allegation that he is under a “constant threat of

prosecution,” Am. Compl. f 15, and the Court is not

required to credit such conclusory allegations. Ashcroft

v. Iqbal, 556 U.S. 662, 686 (2009). Furthermore, for the

following reasons, the Court concludes that Plaintiff

has not alleged any facts from which a credible fear of

prosecution by the Defendants for the intended conduct

could reasonably be inferred.

First, Plaintiff fails to allege that the CSA has ever

been enforced against him in the past. Courts have

App. 18

found that whether or not a law has been enforced

against a plaintiff in the past is an important factor in

the preenforcement standing analysis. See, e.g., Knife

Rights, 802 F.3d at 384-90. In Knife Rights, the Second

Circuit held that the plaintiffs had demonstrated a

credible threat of prosecution because, inter alia, the

defendants had engaged in recent enforcement actions

against the plaintiffs themselves and that there was an

express threat to prosecute the plaintiffs specifically.

802 F.3d at 390. This suggested that “upon becoming

aware of any such [illegal] conduct by plaintiffs,

defendants would again charge them with violations of

law.” Id. at 387; see also Oklevueha Native Am. Church

of Hawaii, Inc. v. Holder, 676 F.3d 829, 837 (9th Cir.

2012) (history of past enforcement against the plaintiffs

“eliminate[ed] any concerns that [the plaintiffs’] fear of

enforcement is purely speculative”). Plaintiff makes no

such allegation here. Indeed, he expressly notes that he

has never been arrested or charged with any crime

related to marijuana use for any purpose, let alone for

his religious purpose. Am. Compl. If 14.

Second, Plaintiff has not alleged that he has ever

been directly threatened with prosecution by anyone,

including the federal authority Defendants. Courts

have also taken into account direct or express threats

of prosecution in determining whether preenforcement

standing exists. See Cayuga Nation, 824 F.3d at 33132; Knife Rights, 802 F.3d at 390. In, Cayuga Nation,

the Second Circuit found that plaintiffs had sufficiently

pled preenforcement standing because they “plausibly

alleged that they [had] been directly threatened with

prosecution.” 824 F.3d at 331. Similarly, in Knife

Rights, the Second Circuit found there was standing in

App. 19

part based on “express threat[s] to prosecute” one of the

plaintiffs by the defendants. 802 F.3d at 390. Plaintiff

makes no such allegation here

Third, Plaintiff does not allege anything about the

enforcement of the CSA generally from which a

credible fear of prosecution by the Defendants for his

intended use of marijuana for religious purposes could

reasonably be inferred. In evaluating preenforcement

standing, courts look to “the history of past prosecution

or enforcement under the statute.” Oklevueha, 676 F.3d

at 835. Plaintiff does not make any allegations about

the past or current enforcement of the CSA.3 Nor does

Plaintiff allege that the CSA is regularly, or ever,

enforced against the personal religious use of

marijuana that he has alleged he wishes to engage in.

See Am. Compl. | 8. Thus, standing alone, Plaintiffs

failure to allege anything more than “an immediate

intention to use cannabis” for religious purposes, id., is

insufficient to allege that he faces a credible fear of

prosecution under the CSA by the federal government.

Finally, Plaintiff argues in his opposition that

alleging a chilling effect on his religious exercise should

be sufficient for standing. The amended complaint

makes no specific allegations in this regard, making

this issue difficult to assess. In an event, as noted

above, a credible threat of prosecution is still required

in preenforcement cases brought under the Free

3 Plaintiff has appended to his opposition to the motion to dismiss

a Memorandum from the Office of the Attorney General regarding

marijuana prosecution policies. Dkt. No. 18 at 52. However, at this

stage the Court will not consider materials that are beyond the

pleadings. See McCarthy, 482 F.3d at 191.

App. 20

Exercise Clause or RFRA alleging burdens on religious

exercise. See Roman Catholic Archdiocese of New York,

907 F. Supp. 2d at 322. Therefore Plaintiff s allegations

about the effect of the CSA on his religious beliefs are

insufficient for a preenforcement challenge absent a

credible fear of prosecution by the Defendants for

Plaintiffs intended marijuana use for religious

purposes.

Each of the above failures, standing alone, would

not necessarily be enough to warrant dismissing

Plaintiff s claim. Taken together, however, Plaintiff has

failed to allege any facts from which a credible threat

of prosecution by the Defendants for religious use of

marijuana could reasonably be inferred. Plaintiff has

therefore failed to sufficiently allege an imminent

injury on his preenforcement challenge, Cayuga

Nation, 824 F.3d at 331, and Defendants’ motion to

dismiss for lack of standing is granted.

IV.

Conclusion

For the foregoing reasons, Plaintiff has not

sufficiently alleged an injury to confer standing.

Defendants’ motion to dismiss is therefore GRANTED

without prejudice. See Katz u. Donna Karan Co.,

L.L.C., 872 F.3d 114, 121 (2d Cir. 2017) (“[Wjhere a

case is dismissed for lack of Article III standing, as

here, that disposition cannot be entered with prejudice,

and instead must be dismissed without prejudice.”

(emphasis in original)). This resolves Dkt. No. 14.

Plaintiffs order to show cause why a preliminary

injunction should not issue, Dkt. No. 24, is therefore

denied as moot. The Clerk of Court is respectfully

directed to close this case. \

App. 21

Chambers will mail a copy of this order to the pro se

Plaintiff and note its mailing on the public docket.

SO ORDERED.

Dated:

March _28_, 2019

New York, New York

s/_

ALISON J. NATHAN

United States District Judge

App. 22

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

18 CIVIL 2106 (AJN)

[Filed March 29, 2019]

Ben Adam,

Plaintiff,

-againstWilliam Barr, et al.,

Defendants.

)

)

)

)

)

)

)

)

)

)

JUDGMENT

It is hereby ORDERED, ADJUDGED AND

DECREED: That for the reasons stated in the Court’s

Opinion and Order dated March 29, 2019, Plaintiff has

not sufficiently alleged an injury to confer standing.

Defendants’ motion to dismiss is therefore GRANTED

without prejudice. See Katz v. Donna Karan Co.,

L.L.C., 872 F.3d 114, 121 (2d Cir. 2017) (“[W]here a

case is dismissed for lack of Article III standing, as

here, that disposition cannot be entered with prejudice,

and instead must be dismissed without prejudice.”

(emphasis in original)). Plaintiffs order to show cause

why a preliminary injunction should not issue, is

therefore denied as moot; accordingly, the case is

closed.

App. 24

APPENDIX C

42 U.S.C. § 2000bb-l(c)

42 U.S. Code § 2000bb-l.Free exercise of religion

protected

(c) Judicial relief

A person whose religious exercise has been burdened in

violation of this section may assert that violation as a

claim or defense in a judicial proceeding and obtain

appropriate relief against a government. Standing to

assert a claim or defense under this section shall be

governed by the general rules of standing under article

III of the Constitution.

84 Stat. 1242

SUBCHAPTER I—CONTROL AND

ENFORCEMENT

Part A—Introductory Provisions

§ 801. Congressional findings and declarations:

controlled substances

The Congress makes the following findings and

declarations:

Many of the drugs included within this

(1)

subchapter have a useful and legitimate medical

purpose and are necessary to maintain the health and

general welfare of the American people.

App. 25

(2)

The

illegal importation,

manufacture,

distribution, and possession and improper use of

controlled substances have a substantial and

detrimental effect on the health and general welfare of

the American people.

(3)

A major portion of the traffic in controlled

substances flows through interstate and foreign

commerce. Incidents of the traffic which are not an

integral part of the interstate or foreign flow, such as

manufacture, local distribution, and possession,

nonetheless have a substantial and direct effect upon

interstate commerce because—

after manufacture,

many controlled

(A)

substances are transported in interstate commerce,

controlled substances distributed locally

(B)

usually have been transported in interstate

commerce immediately before their distribution,

and

controlled substances possessed commonly

(C)

flow through interstate commerce immediately

prior to such possession.

Local distribution and possession of controlled

(4)

substances contribute to swelling the interstate traffic

in such substances.

(5)

Controlled substances manufactured and

distributed intrastate cannot be differentiated from

controlled substances manufactured and distributed

interstate. Thus, it is not feasible to distinguish, in

terms of controls, between controlled substances

App. 26

manufactured and distributed interstate and controlled

substances manufactured and distributed intrastate.

Federal control of the intrastate incidents of the

(6)

traffic in controlled substances is essential to the

effective control of the interstate incidents of such

traffic.

The United States is a party to the Single

(7)

Convention on Narcotic Drugs, 1961, and other

international conventions designed to establish

effective control over international and domestic traffic

in controlled substances.

(Pub. L. 91-513, title II, §101, Oct. 27, 1970, 84 Stat.

1242.)