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Armstrong v. Kilmartin

United States District Court, D. Rhode Island

May 17, 2017

PETER KILMARTIN, in his capacity as Attorney General for Rhode Island and Providence Plantations, et al., Defendants


          Mary M. Lisi Senior United States District Judge.

         Plaintiff Anne Armstrong (“Armstrong”) identifies herself as a clergywoman and leader of the “Healing Church” in Rhode Island. Plaintiff Alan Gordon (“Gordon, ” together with Armstrong, the “Plaintiffs”), a self-proclaimed “cannabis expert, ” Gordon Affidavit at 1 (ECF No. 1-2), identifies himself as a clergyman who serves the “Healing Church.” The Plaintiffs have named twenty (20) separate defendants in this litigation, including, inter alia, representatives of the State of Rhode Island in their official capacity; current and retired members of the Rhode Island State Police; and unnamed police officers in their individual capacity (together, the “State Defendants”). In addition, the Plaintiffs have included a religious organization and its founder, Dan Lynch; a non-profit corporation providing access to medical marijuana and some of its executives; and organizations advising on the cultivation of medical marijuana and some of their executives (together with the State Defendants, the “Defendants”).

         As explained by the Plaintiffs in earlier litigation[1] before this Court, the “Healing Church” is a “Cannabist Faith, ” which involves the use of marijuana during religious services. Armstrong v. Jewell, , C.A. No. 15-215-ML, 151 F.Supp.3d 242, 243 (D.R.I. Dec. 7, 2015). On July 19, 2016, the Plaintiffs were arrested at their residence and charged with several felonies under the Rhode Island Controlled Substances Act (“CSA”), R.I. Gen. Laws §21-28-1 et seq. The pro se Plaintiffs now seek (1) “protective injunctive Stay and Dismiss the ongoing State Court criminal prosecution” against the Plaintiffs, (2) return of certain property, and (3) “especially to stop molesting the exercise of the Plaintiffs' religion.” Complaint at 56 (ECF Nos. 8-3, 12). In addition to their constitutional claims against the State Defendants, the Plaintiffs have raised allegations against Dan Lynch (“Lynch”), an out-of-state Defendant, for “openly publishing claims” that “bent the law” and “bent the 1st Defendant Attorney General's a peculiar property grab.” Complaint at 25.

         The matter before the Court is the State Defendants' motion to dismiss the amended complaint (the Complaint) (ECF No. 8-2, 12). For the reasons that follow, the State Defendants' motion is GRANTED.

         I. Factual Background[2]

         According to the Complaint, the Plaintiffs are “attempt[ing] to protect a religious cannabis garden and related material from RI law enforcement.” Complaint at 9. Plaintiffs' allegations against the State Defendants include “deliberate religious discrimination” and denial of “Free Exercise, ” in violation of the First Amendment's Establishment Clause and the Fourteenth Amendment's Equal Protection Clause. Complaint at 9-10. In connection with their July 19, 2016 felony arrest, the Plaintiffs complain of cruel and unusual punishment in violation of the Eighth Amendment, as well as the confiscation of their cannabis plants. Complaint at 10.

         The underlying events resulting in the criminal proceedings against the Plaintiffs now pending in state court from which the Plaintiffs seek relief are as follows:

Beginning in September 2015, Armstrong began making efforts to obtain “temporary Guardianship” of what is described as a “6 foot-tall, 100 pound replica travelling missionary painting (“The Missionary Painting”) of La Virgen de Guadalupe, a 15th century miraculous Catholic Mexican botanical healing icon.” Complaint at 19. According to the Complaint, Armstrong believes that “the Missionary Painting depicted cannabis flowers in the floral print of the Blessed Mother's dress.” Id.

         In late April 2016, Lynch - who, according to his answer to the Complaint, is a retired Vermont state judge and heads “Dan Lynch Apostolates” - transferred temporary guardianship and physical custody of the Missionary Painting to Armstrong. Complaint at 20. Soon after receiving the Painting, the Plaintiffs began publicly displaying the image with cannabis while reiterating various claims regarding the healing power of cannabis.[3] Id. According to the Complaint and Armstrong's relating of the events in the documents attached thereto, Lynch took exception to some aspects of Plaintiffs' activities and demanded return of the Painting by threatening criminal prosecution. Complaint at 20, Attachment 1 at 4 (ECF No. 11-1). In late June 2016, Lynch visited Plaintiffs' residence “uninvited, with a municipal police officer, seeking the Missionary Painting under threat of criminal complaint.” Complaint at 21. According to the Plaintiffs, “Lynch positively noticed cannabis before or shortly after being asked to leave.” Id.

         The Plaintiffs further allege that, shortly after his accompanied visit to Plaintiffs' residence, Lynch influenced an “Attorney General in the Kent County RI division, to personally attend the premises of the Plaintiffs on or about June 23, 2016, threatening - unless the Missionary Painting were voluntarily yielded to Judge Lynch - to serve a criminal search warrant for the Missionary Painting, a search in which cannabis ... would, it was announced, suddenly be seen and prosecuted...” Complaint at 21-22. When Armstrong subsequently refused to return the Painting, a search warrant was served, pursuant to which police conducted a search of the premises. Complaint at 22. The Plaintiffs acknowledge that they had repeatedly given notice to the State that cannabis was present at their residence and that cannabis had been seen by police when an officer accompanied Lynch on his earlier visit. Complaint at 23.

         Plaintiffs filed an initial complaint in this Court on July 15, 2016. At the same time, they also engaged in “flurried attempts ... to obtain protective Orders in various Courts.” Complaint at 22. On July 19, 2016, the Plaintiffs were arrested and various materials were seized from their residence.[4]Complaint at 23. It is undisputed that neither of the Plaintiffs possess or have applied for a registry identification card pursuant to the Medical Marijuana Act, R.I. Gen. Laws §§ 21-28.6-1 et seq., which might allow them to possess, grow, or use limited quantities of marijuana.

         Although the Complaint continues for an additional thirty pages, the remainder consists of a collection of tales related to Plaintiffs' activities as leaders of the “Healing Church, ” their experiences while being detained, and their views of the medical marijuana industry in Rhode Island, all of which culminate in the alleged violations of the Plaintiffs' constitutional rights of religious freedom, equal protection, and due process. The gravamen of the Plaintiffs' Complaint is that their constitutional rights are impaired by the State's Uniform Controlled Substances Act, R.I. Gen. Laws § 21-28-1.01 et seq., the Medical Marijuana Act, R.I. Gen. Laws § 21-28.6-1, and the exemption from alcoholic beverage related to “the use, consumption or possession of alcoholic beverages by a minor for religious purposes” in R.I. Gen. Laws §3-8-11.1(d). As a primary remedy, the Plaintiffs seek to stay and dismiss the criminal proceedings pending against them in state court and to “stop molesting the exercise of [their] religion.” The Plaintiffs also seek the return of the Missionary Painting, restoration of their property, and compensation for their “irremediable harms.” Complaint at 56.

         II. Procedural History

         On July 15, 2016, the Plaintiffs filed an initial complaint[5]in this Court (ECF No. 1), to which they attached (1) a 25-page affidavit of Gordon in which he relates, inter alia, that he returned early from a foot pilgrimage to D.C. in order to attend to the ripening cannabis plants in the Plaintiffs' back yard; and that he had previously “personally harvested approximately 3 dozen plants (36) of varying sizes, out of nearly 70 originally planted”; (2) a 37-page publication titled “A Bible Full of Cannabis, ” authored by the Plaintiffs; (3) a 9-page affidavit of Armstrong; and (4) a 35-page publication titled “Newly-Noticed Notes Demonstrate that Harry J. Anslinger, Author of the US' Original 1937 Cannabis Ban, was Probably a World War II Era Axis Fascist Racial Supremacist Enemy Agent Working Within the Highest Ranks of U.S. Law Enforcement, ” also authored by the Plaintiffs. (ECF Nos. 1-2 through 1-5).

         On July 19, 2016, the Plaintiffs were arrested and charged with drug felonies under Rhode Island law. At the date of this Order and Memorandum, the criminal proceedings against them remain pending in Rhode Island state court.

         On October 24, 2016, the Plaintiffs filed a motion for an extension of time to amend their complaint (ECF No. 8), to which they attached a copy of the amended complaint (ECF No. 10). The State Defendants raised no objection thereto (ECF No. 9). The Plaintiffs' motion was granted on December 6, 2016. On December 22, 2016, the State Defendants filed a motion to dismiss the Complaint as amended (ECF No. 10). On January 9, 2017, the Plaintiffs filed a response in opposition to the State Defendants' motion (ECF No. 11), together with (1) a selection of documents under the heading “First Plaintiff's [Armstrong] Disciplinary Complaint to the RI Supreme Court, with Papal Nuncio's Correspondence, ” (2) two documents related to bail conditions in the state criminal proceedings against the Plaintiffs, and (3) a document under the heading “Privileged Email Sent to Court.” (ECF Nos. 11-1, 11-2, 11-3). The State Defendants filed a reply on January 17, 2017 (ECF 13). The Plaintiffs filed a further reply memorandum on January 19, 2017 (ECF No. 15). Finally, on March 8, 2017, Dan Lynch filed an answer to the Complaint in which he denies many of the allegations and seeks dismissal of the claims against him and his organization[6] (ECF Nos. 18, 19).

         III. ...

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