Opinion
Civil Action 21-cv-00789-WJM-MEH
06-09-2021
FRANCISCO SERNA, Plaintiff, v. DENVER POLICE DEPARTMENT, and ANSELMO JARAMILLO, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty United States Magistrate Judge
Plaintiff Francisco Serna asserts a claim against Defendants Denver Police Departmentand Anselmo Jaramillo (together, “Defendants”) pursuant to the Agriculture Improvement Act of 2018, Pub. L. 115-334, December 20, 2018, 132 Stat 4490 (hereafter, “2018 Farm Bill”), related to the seizure of Plaintiff's hemp plants at the Denver International Airport. Defendants have filed the present motion to dismiss (“Motion”), arguing that the 2018 Farm Bill does not provide a private right of action. Because the Court agrees that Plaintiff fails to state a claim upon which relief can be granted, the Court respectfully recommends granting the Motion.
The Court notes that, in a footnote, Defendants assert that the Denver Police Department is not a separable suable entity. Mot. at 1 n.1 (citing Stump v. Gates, 777 F.Supp. 8080, 815 (D. Colo. 1991), aff'd, 986 F.2d 1429 (10th Cir. 1993)).
BACKGROUND
The following are factual allegations made by Plaintiff in the operative pleading, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff is a licensed hemp producer in Texas. Compl. § IV. On or about March 16, 2021, at approximately 2:00 p.m., Plaintiff went through security at Denver International Airport. Id. §§ III.A-B. He planned on travelling with thirty-two “plant clones or rooted clippings compliantly produced under Subtitle G of 2018 Farm Bill Act.” Id. § III.C. He had a certificate of compliance for the plants stating that they contained less that 0.3 percent THC. Id. When Plaintiff reached a checkpoint, Officer Jaramillo spoke with another officer and decided to confiscate the plants. Id. Officer Jaramillo told Plaintiff that they had a policy of confiscating any plants above zero percent THC. Id.
Plaintiff alleges that he is making preparations for “the grow season, ” and, if his preparations are not completed in a timely manner, it will prevent a harvest this season. Id. § IV. He requests that the confiscated plants “be kept under permanent light and returned to [him] immediately so that [he] can grow these mother plants to produce the starts necessary for this season's harvest.” Id. In seeking this injunctive relief, Plaintiff has brought this lawsuit pursuant to Section 10114 of the 2018 Farm Bill. Id. § V.
LEGAL STANDARDS
The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action, ” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).
II. Treatment of a Pro Se Plaintiff's Complaint
A pro se plaintiff's “pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). “Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth Circuit interpreted this rule to mean, if a court “can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, [it] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this interpretation is qualified in that it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).
ANALYSIS
As mentioned earlier, Plaintiff's only claim is for injunctive relief under the 2018 Farm Bill.Defendants contend that there is no private right of action under that legislation. Plaintiff's response is two-fold. First, he argues that Defendants' Motion was served beyond the time permitted under Fed.R.Civ.P. 5. Resp. at 3-4. Hence, the Court should deny the Motion as untimely. Second, the 2018 Farm Bill and its legislative history support the notion that a private right of action is provided. Id. at 4-10.
In their Motion, Defendants indicate that they conferred with Plaintiff prior to filing, even though it was not required, to ensure that this was Plaintiff's only claim. Mot. at 1-2. Defendants “confirmed that [Plaintiff's] Complaint seeks relief under the 2018 Farm Bill.” Id. Plaintiff's response confirms this.
I. Timeliness
Plaintiff argues that “Defendants' motion must fail” because service of the Motion was completed three days past the due date. Resp. at 3-4. Defendants filed their Motion on the docket on April 23, 2021. ECF 20. In a Notice of Errata filed on April 27, 2021, Defendants asserted that, “[d]ue to an administrative error, ” the Motion was not emailed to Plaintiff until April 26, 2021. ECF 23. Citing Fed.R.Civ.P. 5 and D.C.Colo.LCivR 5.1(d), Plaintiff contends that service was untimely, and, as such, the Motion should be denied. Resp. 3-4.
Plaintiff's argument fails for three reasons. First, Defendants did not fail to meet the deadline to respond to the Complaint. Defendants timely filed the Motion on the docket on April 23, 2021. When a document “is filed in CM/ECF, it is served electronically under Fed.R.Civ.P. 5.” D.C.Colo.LCivR 5.1(d). Plaintiff's desire to receive the Motion by email indicates he was willing to accept service electronically. Second, even though Plaintiff did not receive the Motion by email until three days later, Plaintiff has not demonstrated prejudice from this delay. Plaintiff did not seek an extension of time to respond, even though Defendants' counsel “told Mr. Serna that an extension of time would not be opposed.” Reply at 2. Third, Plaintiff's response is itself technically untimely. The Court ordered Plaintiff to file his response on or before May 19, 2021. ECF 22. Plaintiff attempted to file his response on that date; however, he did so by emailing the document to Judge Martinez's chambers. Reply, Exh. A. Although Judge Martinez advised Plaintiff to contact the Clerk's Office about properly filing the response, Plaintiff did not actually file it until May 24, 2021 (five days later than the deadline). If the Court held Defendants liable for their administrative error, then the Court would also need to hold Plaintiff accountable for his. The simpler and just course of action is for the Court to accept both parties' filings and consider the merits of the arguments presented.
II. Private Right of Action
The Court begins with the notion that, “[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). “The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Id. “[W]here the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.” CNSP, Inc. v. City of Santa Fe, 755 Fed.Appx. 845, 848 (10th Cir. 2019).
With that understanding, the Court will examine the two provisions of the 2018 Farm Bill cited by Plaintiff in his Complaint: Subtitle G and Section 10114. Subtitle G provides a framework by which the United States Department of Agriculture must create and administer a program regarding the production of hemp. It begins with a definition of “hemp” as “the plant Cannabis sativa L. and any part of that plant . . . with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.” 7 U.S.C. § 1639o(1). Any state or Indian tribe that wants “primary regulatory authority over the production of hemp in the State or territory of the Indian tribe, ” must provide to the Secretary of Agriculture (“Secretary”) “a plan under which the State or Indian tribe monitors and regulates that production.” 7 U.S.C. § 1639p(a)(1). The statute describes the requirements of such a plan. Id. § 1639p(a)(2). The Secretary has the authority to approve or disapprove any plan in consultation with the Attorney General of the United States. Id. § 1639p(b). Also, the Secretary has the authority to conduct an audit of any state or Indian tribe to determine compliance with an approved plan. Id. § 1639p(c). If the Secretary determines that a state or Indian tribe is not in compliance, the Secretary may either work with the non-complying state or Indian tribe to develop a corrective action plan (if it is the first instance of non-compliance) or revoke the prior approval of the plan. Id. § 1639p(c)(2). Any violation of an approved plan is “subject to enforcement solely in accordance with” subsection (e). Id. § 1639p(e)(1).
Depending on the type of violation, the statute bestows the authority on the Secretary to issue corrective action plans (for a non-repeating, negligent violation, id. § 1639p(e)(2)) and to report the state's department of agriculture or tribal government to the Attorney General and chief law enforcement officer of the state or Indian tribe (for violations with a culpable mental state greater than negligence, id. § 1639p(e)(3)(A)).
To the extent a state or tribal plan is not approved, the Secretary establishes a plan for the production of hemp in that state or territory. Id. § 1639q(a)(1). As part of this authority, the Secretary determines the procedures for the licensing of hemp producers. Id. § 1639q(b). The statute makes it unlawful to produce hemp “[i]n the case of a State or Indian tribe for which a State or Tribal plan is not approved, ” and enforcement authority for violations of the plans is reserved to the Secretary. Id. § 1639q(c).
Finally, appended as a note to 7 U.S.C. § 1639o is Section 10114 concerning interstate commerce. That Section states:
(a) RULE OF CONSTRUCTION.-Nothing in this title or an amendment made by this title prohibits the interstate commerce of hemp (as defined in section 297A of the Agricultural Marketing Act of 1946 (as added by section 10113)) or hemp products.
(b) TRANSPORTATION OF HEMP AND HEMP PRODUCTS.-No State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (as added by section 10113) through the State or the territory of the Indian Tribe, as applicable.Pub. L. 115-334, Title X, § 10114 (Dec. 20, 2018) (appended as a note to 7 U.S.C. § 1639o).
Nothing in the framework created by Subtitle G indicates any intent by Congress to create a private right of action. To the contrary, the provisions of Subtitle G describe the powers and methods reserved to the Secretary for enforcement and regulation of state, Indian, or Department of Agriculture plans for production of hemp. Such a delegation of authority is evidence that no private right of action was intended. Freier v. Colorado, 804 Fed.Appx. 890, 891-92 (10th Cir. 2020) (“Those courts have reasoned that Congress, by delegating enforcement authority to the Secretary of Health and Human Services, did not intend for HIPAA to include or create a private remedy.”) (citation omitted). Moreover, the Court does not perceive any “rights-creating language” in Subtitle G or Section 10114; that is, the statute does not contain language “which ‘explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff' . . . and language identifying ‘the class for whose especial benefit the statue was enacted.'” Boswell v. Skywest Airlines, Inc., 361 F.3d 1263, 1267 (10th Cir. 2004) (internal citations omitted) (emphasis in original). Rather, these sections of the 2018 Farm Bill focus exclusively on the Department of Agriculture and the states and Indian tribes it will regulate. The lack of focus on any individuals is more evidence that there is no congressional intent to create a private right of action. Alexander v. Sandoval, 532 U.S. 275, 289 (2001) (finding that section of a statute that focused not “on the individuals protected[, ] . . . but on the agencies that will do the regulating” did not create a private right of action).
Plaintiff cites heavily to Gebser v. Lago Vista, 524 U.S. 274 (1998) and Landegger v. Cohen, 5 F.Supp.3d 1278 (D. Colo. 2013) as support for why there is an implied right of action. He cites these cases essentially for the notion that context, including Congressional purpose, matters for purposes of the implied rights analysis. Gebser, 524 U.S. at 284 (“[W]e have a measure of latitude to shape a sensible remedial scheme that best comports with the statute.”); Landegger, 5 F.Supp.3d at 1289 (“Sandoval permits a district court [to] look to the ‘contemporary legal context' in which the statute was enacted.”).
Even if the Court believed that the text and structure of the 2018 Farm Bill was inadequate to conclusively state that Congress did not intend for a private right of action, see Landegger, 5 F.Supp.3d at 1289 (“[c]ontext may only buttress a ‘conclusion independently supported by the text of the statute'”), the context cited by Plaintiff puts any question of a right of action to rest. Plaintiff cites to the bill's legislative history. Resp. at 9-10. The Conference Report for the legislation notes that the House version of the bill proposed a private right of action to challenge state regulation of interstate commerce. H.R. CONF. REP. 115-1072, at 794. The Senate version did not contain that provision. Id. In resolving this difference, “[t]he Conference substitute does not adopt the House provision.” Id. (emphasis added). As such, Congress specifically contemplated a private right of action and rejected it. The Court cannot “supply by construction what Congress has clearly shown its intention to omit.” Carey v. Donohue, 240 U.S. 430, 437 (1916).
Available online at https://www.govinfo.gov/content/pkg/ CRPT-115hrpt1072/pdf/CRPT-115hrpt1072.pdf.
For these reasons, the Court finds that Congress did not intend for the 2018 Farm Bill to provide a private right of action.As such, Plaintiff's Complaint fails to state a claim upon which relief can be granted and must be dismissed. Ordinarily, especially in the case of a pro se plaintiff, the Court would consider whether to grant leave to amend the Complaint. See Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). In this case, however, as Plaintiff's only claim is under the 2018 Farm Bill, allowing amendment would likely prove futile since, as a matter of law, no cause of action exists under that statute. Because amendment would be futile, dismissal of Plaintiff's Complaint should be with prejudice. Fleming v. Coulter, 573 Fed.Appx. 765, 769 (10th Cir. 2014) (holding that “dismissal with prejudice is proper for failure to state a claim when ‘it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him the opportunity to amend'”) (quoting Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 806 (10th Cir. 1999)).
Based on this Court's research, only one other court has weighed in on this issue. That court agreed with this Court's conclusion. Garrison v. New Fashion Pork LLP, 449 F.Supp.3d 863, 868 (N.D. Iowa 2020) (noting that the “Federal Farm Bill did not create a private right of action”).
CONCLUSION
Accordingly, Court respectfully recommends that Judge Martinez grant Defendants' Motion [filed April 23, 2021; ECF 20] and dismiss Plaintiff's Complaint with prejudice.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
10 .