United States District Court, D. Rhode Island
Armstrong, Plaintiff, Pro se, West Greenwich, RI.
Gordon, Plaintiff, Pro se, West Greenwich, RI.
Sally Jewell, in her capacity as United States Secretary of
the Interior, Jonathan B. Jarvis, in his capacity as Director
of the United States National Park Service, Jennifer Smith,
in her capacity as Site Manager for Roger Williams National
Memorial, Defendants: Bethany N. Wong, Richard Myrus, LEAD
ATTORNEYS, U.S. Attorney's Office, District of Rhode
Island, Providence, RI.
Lisi, Senior United States District Judge.
plaintiffs in this pro se action seek to conduct
certain religious ceremonies -- which include the "
sacramental use and distribution" of cannabis, or
marijuana -- on the grounds of Rhode Island's only
federal park. Revised Application for Special Use Permit
(Dkt. No. 1-2 at Page 1 of 48). The matter before the Court
is the government's motion to dismiss the Complaint. For
the reasons that follow, the government's motion is
Armstrong (" Armstrong" ) and Alan Gordon ("
Gordon," together with Armstrong, the "
Plaintiffs" ) are members of " The Healing
Church," which they describe as " new and barely
corporate." Complaint at ¶ 5. According to the
Plaintiffs, the Healing Church is " a Cannabist
Faith," which involves the use of marijuana during
religious services. The current litigation was initiated by
the Plaintiffs to enable them to conduct such services at the
Roger Williams National Memorial (the " National
Memorial" ), which is a four-acre site in the United
States National Park Service system and, thus, located on
March 25, 2015, Armstrong submitted an application for a
special use permit, requesting to conduct a prayer service on
May 23, 2015 at the National Memorial, to " include the
sacramental use and distribution of KNH BSM [Hebrew
lettering] [cannabissativa]..." Exhibit 1 to Complaint
(Dkt. No. 1-2). The requested location for the event is only
described as " Roger Williams National Memorial,"
making no mention of a particular location within the
park. Id. For the question "
Is this an exercise of First Amendment Rights?"
Armstrong checked " Yes." Id. at Page 2 of
April 22, 2015, National Memorial Site Manager Jennifer Smith
(" Smith" ) advised Armstrong and Gordon that she
had mailed their permit and she requested that they review
the material, sign the permit, and mail it back to her.
Exhibit 3 to Complaint (Dkt. No. 1-2, Page 5 of 48).
Smith's cover letter notes that " this permit does
not grant permission to undertake any activity that may
violate Federal, State, or municipal laws or
regulations," including the " Controlled Substances
Act, the laws of the State of Rhode Island governing the
possession and use of controlled substances, and 36 C.F.R.
§ 2.35, which prohibits the illegal
possession or delivery of controlled substances within the
National Park System." Exhibit 2 (Dkt. No. 1-2) at Page
32 of 48.
permit itself states that its issuance " is subject to
the attached conditions" and that " the undersigned
hereby accepts this permit subject to the terms, covenants,
obligations, and reservations, expressed or implied
herein." Id. at Page 3 of 48. The attached
conditions specify that the permittee " shall comply
with all applicable Federal, State, county and municipal
laws, ordinances, regulations, codes, and the terms and
conditions of this permit." Id. at Page 35 of
April 23, 2015, Armstrong sent an e-mail to Smith, requesting
a number of changes. Inter alia, Armstrong asked
Smith to amend the cover letter " to make it explicitly
clear that no law enacted by Congress or any other agency of
the State abridges our right to worship according to our
interpretation of the scripture." Armstrong added that
" [i]t would help if you could also make clear that your
Park Police will protect our First Amendment rights against
encroachment by any other agencies." Id. at
Page 6 of 48.
response, Smith acknowledged receiving Armstrong's
requests and noted that " none of the requests noted in
your email dated April 23 would seem to require any changes
to the language of the permit." Id. at Page 37
of 48. Armstrong signed the special use permit on May 4,
2015. Id. at Page 3 of 48.
to the Complaint, Armstrong and Gordon began
daily gatherings at the " Well
site" of the Memorial on Saturday, May 16, 2015.
Complaint ¶ 12. Armstrong and Gordon returned the
following day and " again prayed with cannabis,"
but were advised by a park ranger and, later, two Providence
police officers, that cannabis was not allowed. Complaint
¶ 13. On May 18, 2015, Armstrong and Gordon encountered
a federal law enforcement officer who asked them for
identification and, according to the Plaintiffs, tried to
write a warning for the possession of cannabis. Complaint
¶ 14. On Tuesday, May 19, 2015, several police vehicles
were at the National Memorial. According to the Complaint,
Armstrong and Gordon were " issued a summons for federal
Magistrate's Court...indicating that a fine of over $100
was due."  They were then instructed to leave the
park. Complaint ¶ 15. The Plaintiffs, together with
another individual, returned to the National Memorial on May
20th, 2015, where they used cannabis while being observed by
police officers. No one was arrested. Complaint ¶ 16.
21, 2015, Armstrong and Gordon filed a twenty-page pro se
" Complaint and Application for Urgent Injunction"
(Dkt. No. 1), together with a motion for leave to proceed
in forma pauperis (Dkt. No. 2). The Plaintiffs
sought injunctive relief to preclude governmental
interference with their planned " cannabis-related
religious activity" at the National Memorial,
specifically for the scheduled May 23, 2015 event. On May 22,
2015, the government filed an objection to the
Plaintiffs' application, on the ground that the
Plaintiffs had failed to demonstrate a substantial likelihood
of success on the merits of their claim under the Religious
Freedom Restoration Act of 1993 (" RFRA" ) (Dkt.
No. 3). After the Magistrate Judge recommended that
Gordon's IFP motion be denied, see Report and
Recommendation (Dkt. Nos. 4, 5), the required filing fee was
22, 2015, this Court issued a Memorandum and Order, treating
the Plaintiffs' application for " urgent
injunction" as a motion for a temporary restraining
order (" TRO" ). In light of the Plaintiffs'
pro se status, the Court read their submitted
pleadings liberally (Dkt. No. 10). After considering the
Plaintiffs' submissions and the government's
response, the Court concluded that the Plaintiffs had not met
their burden of demonstrating a likelihood of success on the
merits. The Court denied the motion for TRO. Id.
20, 2015, the government filed a motion to dismiss the
Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to
state a claim upon which relief can be granted (Dkt. No. 11).
Between July 31, 2015 and August 7, 2015, the Plaintiffs
filed (1) an amended affidavit to the Complaint (Dkt. No.
12), (2) a response in opposition to the government's
motion (Dkt. No. 13), (3) a motion for default judgment (Dkt.
No. 14), and (4) the affidavit of Gordon (Dkt. No. 15),
together with 14 new exhibits (Dkt. Nos. 16-1 through 17-6).
In response, the government filed an objection to
Plaintiffs' motion for default judgment (Dkt. No. 18),
and a reply in support of the government's motion to
dismiss (Dkt. No. 19). The Plaintiffs filed a motion for
leave to amend their objection to the motion to dismiss (Dkt.
Nos. 20, 21), as well as a reply to the government's
objection to the Plaintiffs' motion for default judgment
(Dkt. No. 22).
August 18, 2015, the Court conducted a hearing on the various
motions. With the consent of the government, the motion for
leave to amend the Plaintiffs' objection to the
government's motion to dismiss was treated as an
amendment to the Complaint and, as such, the motion was
granted. The Plaintiffs' motion for default judgment was
denied. After both sides were given an opportunity to argue
in support of their respective positions, the Court took the
government's motion to dismiss the Complaint under
Standard of Review
motion to dismiss for failure to state a claim upon which
relief may be granted is governed by Fed.R.Civ.P. 12(b)(6).
In considering a motion to dismiss a complaint the Court
" must construe the complaint in the light most
favorable to the plaintiff, taking all well-pleaded facts as
true, and giving the Plaintiff the benefit of all reasonable
inferences. Arruda v. Sears, Roebuck & Co., 310 F.3d
13 (1st Cir. 2002). In order to withstand a motion to
dismiss, a claim " must contain sufficient factual
matter ... to state a claim to relief that is plausible on
its face." Katz v. Pershing, LLC,672 F.3d 64,
72-73 (1st Cir. 2012. The complaining party must include
" factual content that allows the court to draw a
reasonable inference" in the pleader's favor.
Id. " If, under any theory, the allegations are
sufficient to state a cause of action in accordance with the
law," the motion to dismiss must be denied.
Vartanian v. Monsanto Co.,14 F.3d 697, 700 (1st
Cir. 1994). The Court ...