Arizona Yage Assembly v. Garland

• Court: District Court, D. Arizona
• Decided: March 30, 2022
• Docket: 2:20-cv-02373
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Arizona Yage Assembly, et al., No. CV-20-02373-PHX-ROS

10 Plaintiffs, ORDER

11 v.

12 Merrick B. Garland, et al.,

13 Defendants. 14 15 Plaintiffs Clay Villanueva, Arizona Yage Assembly, North American Association 16 of Visionary Churches, and the Vine of Light Church brought this action against a variety 17 of state and federal government officials and entities seeking monetary, injunctive, and 18 declaratory relief. (Doc. 109 at 87-94). Plaintiffs bring claims against the United States; 19 Merrick Garland, the United States Attorney General, Anne Milgram, the Administrator 20 of the Drug Enforcement Agency (“DEA”), Alejandro Mayorkas, the Secretary of the 21 Department of Homeland Security (“DHS”), and Chris Magnus, the Commissioner for 22 U.S. Customs and Border Protection (“CBP”) (collectively, “the Federal Defendants”) in 23 their official capacities under the Religious Freedom Restoration Act (“RFRA”), 42 24 U.S.C. § 2000bb, et seq.; claims against the United States and DEA under the 25 Administrative Procedure Act (“APA”), 5 U.S.C. § 500, et seq.; claims against Maricopa 26 County, the DEA, Maricopa County Sheriff’s Office detective Matthew Shay in his 27 personal capacity, and DEA employee Marco Paddy in his personal capacity under 42 28 U.S.C. § 1983; claims against Maricopa County and Shay under the Arizona Free 1 Exercise of Religion Act (“AFERA”), A.R.S. § 41-1493, et seq., and for several common 2 law torts, including trespass, battery, conversion, negligence, and loss of consortium. 3 (Doc. 109 at 43-87). It appears Plaintiffs asks this Court to establish they have the right 4 to import and use ayahuasca for religious purposes and to obtain tort relief for an 5 allegedly unconstitutional search of Villanueva’s residence 6 Plaintiffs filed this matter in the District Court for the Northern District of 7 California on March 5, 2020, naming the same defendants, as well as the State of 8 Arizona, the Arizona Attorney General in his official capacity, and a DEA Deputy 9 Assistant Administrator in his personal capacity. (Doc. 1). Four amended complaints 10 and several Rule 12 motions have followed. 11 A First Amended Complaint was filed on June 16, 2020. (Doc. 12). On July 15 12 and 16, the DEA Deputy Assistant Administrator and the Federal Defendants moved to 13 stay proceedings pending the Supreme Court’s resolution of Tanzin v. Tanvir, 141 S.Ct. 14 486 (2020) (which later held money damages are available under RFRA against federal 15 officials sued in a personal capacity). (Docs. 17, 19). On July 21, Maricopa County and 16 Matthew Shay moved to strike the First Amended Complaint on the ground that it was 17 improperly filed and moved to dismiss for lack of personal jurisdiction and improper 18 venue. (Doc. 20). While the motions to stay, strike, and dismiss were pending, Plaintiffs 19 moved for a preliminary injunction. (Doc. 22). Shortly thereafter, the Arizona Attorney 20 General and the State of Arizona moved to dismiss for lack of personal jurisdiction and 21 improper filing, and because sovereign immunity precluded liability (Doc. 29), and the 22 Federal Defendants moved to strike the First Amended Complaint based on the improper 23 filing. (Doc. 31). On September 21, 2020, Judge William H. Orrick granted the Arizona 24 Defendants’ motions to dismiss and denied the motions to stay, motions to strike, and 25 motion for preliminary injunction. (Doc. 57). Plaintiffs then moved to transfer venue 26 here (Doc. 61), which was granted, and venue was transferred to the District of Arizona. 27 (Doc. 65). 28 The State of Arizona and the Arizona Attorney General were voluntarily 1 dismissed on December 28, 2020, and a Second Amended Complaint followed on 2 January 21, 2021. (Docs. 70, 77). On March 22, the Federal Defendants moved to 3 dismiss for lack of subject matter jurisdiction and Maricopa County and Matthew Shay 4 moved to dismiss for failure to state a claim. (Docs. 85, 86). Marco Paddy filed a motion 5 to dismiss for failure to state a claim on April 6. (Doc. 90). 6 Plaintiffs filed a Third Amended Complaint on May 4,1 but corrected it by filing a 7 Fourth Amended Complaint on May 27. (Docs. 97, 98, 109). The Federal Defendants 8 again filed a motion to dismiss for lack of subject matter jurisdiction, arguing Plaintiffs 9 do not have standing and the claim under the APA is not ripe. (Doc. 112). Marco Paddy 10 filed a motion to dismiss for failure to state a claim. (Doc. 111). And Maricopa County 11 and Matthew Shay filed a motion to dismiss for failure to state a claim. (Doc. 110). On 12 November 9, 2021, Arizona Yage Assembly moved for a preliminary injunction2 against 13 the Federal Defendants. (Doc. 137). The three motions to dismiss and the motion for 14 preliminary injunction are now fully briefed. 15 BACKGROUND 16 I. The Parties 17 Plaintiffs Arizona Yage Assembly (“AYA”) and North American Association of 18 Visionary Churches (“NAAVC”) are alleged religious non-profit groups that seek to use 19 ayahuasca for religious purposes. (Doc. 109 at 5). Plaintiff Clay Villanueva is the 20 founder of Vine of Light Church3 (“VOLC”) and a NAAVC “Board member.” (Doc. 109 21 at 6). Plaintiff VOLC is a member of NAAVC. (Doc. 109 at 6). 22 Plaintiffs bring this action against: (1) the United States; (2) Merrick Garland, the 23 United States Attorney General; (3) Anne Milgram, the Administrator of the Drug 24 1 Plaintiffs incorrectly identified the May 4, 2021 complaint as a Fourth Amended 25 Complaint in the filing. (Doc. 97). 2 AYA filed its reply in support of the preliminary injunction 25 minutes late. (Doc. 26 148). A contemporaneously filed Motion to Deem Papers Timely Filed explains that the untimeliness of the reply was caused by unfamiliarity with the Next-Gen ECF system 27 recently adopted by the District of Arizona. (Doc. 149). The Motion will be granted and AYA’s reply is deemed timely filed. 28 3 VOLC was also Villanueva’s residence at the time the events that gave rise to this litigation occurred. See (Doc. 109 at 77-78). 1 Enforcement Agency; (4) Alejandro Mayorkas, the Secretary of Homeland Security; (5) 2 Chris Magnus, the Commissioner for U.S. Customs and Border Protection; (6) Marco 3 Paddy, an employee of the DEA; (7) Maricopa County; and (8) Matthew Shay, an 4 employee of the Maricopa County Sheriff’s Office (“MCSO”). (Doc. 109 at 6-7). All 5 defendants except Paddy and Shay are named in their official capacity. 6 The motion to dismiss filed by the Federal Defendants (Doc. 112) will be granted. 7 Plaintiffs’ claim against the Federal Defendants under the APA will be dismissed without 8 leave to amend because the Court finds amendment would be futile. Plaintiffs’ claims 9 under RFRA and § 1983 against the Federal Defendants will be dismissed with leave to 10 amend. Paddy’s motion to dismiss (Doc. 111) will be granted and Plaintiffs’ claims 11 against Paddy will be dismissed without leave to amend. The motion to dismiss filed by 12 Maricopa County and Shay (Doc. 110) will be granted and the claims will be dismissed 13 or stayed. AYA’s motion for a preliminary injunction (Doc. 137) will be denied. 14 II. Factual Allegations Relevant to the Pending Motions 15 Ayahuasca is a tea brewed from plants containing the hallucinogenic compound, 16 N, N-dimethyltryptamine (“DMT”). (Doc. 112 at 2). DMT is a Schedule I controlled 17 substance under the Controlled Substances Act (“CSA”), 21 U.S.C. § 812(b)(1). (Doc. 18 112 at 2). Plaintiffs allegedly use and share ayahuasca in the exercise of their “visionary 19 religion.”4 (Doc. 109 at 26). AYA describes “the use of Ayahuasca [a]s the sine qu[a] 20 non of AYA and Visionary Churches everywhere.” (Doc. 137 at 7). 21 Plaintiffs allege four shipments of ayahuasca from Peru to AYA and/or NAAVC 22 were seized by the federal government between April and December 2020. (Doc. 109 at 23 14-15, 44-45). The MCSO, allegedly at the behest of Defendant Paddy, investigated 24 Villanueva for production, use, and distribution of DMT and marijuana. (Doc. 39-3 at 10- 25 34) (affidavit of Matthew Shay in support of a search warrant). It is further alleged that 26 Paddy intentionally violated Villanueva’s Fourth Amendment rights by falsely accusing

27 4 AYA alleges its religious exercise “takes place in sacred communion by means of drinking sacramental Ayahuasca.” (Doc. 109 at 19-20). AYA alleges, “[a]lthough 28 Visionary Churches have no written scriptures or officially promulgated doctrine, its adherents share belief in Divine Love and spiritual powers.” (Doc. 137 at 6). 1 Villanueva of selling DMT pursuant to a tip Paddy passed to a Phoenix police officer.5 2 (Doc. 109 at 47-48). Plaintiffs allege Paddy “mismanage[d]” an informant as a result of 3 DEA training, resulting in the violation of Villanueva’s constitutional rights. (Doc. 109 4 at 50). 5 On May 19, 2020, two weeks after this case was filed in the Northern District of 6 California, the MCSO executed a warrant at Villanueva’s residence, the official location 7 of the Vine of Light Church. (Doc. 117 at 3). Defendant Shay, an MCSO Deputy 8 Detective, obtained the warrant (Doc. 39-3 at 10) and allegedly performed the search. 9 (Doc. 117 at 3). “The search found marijuana, 91 pounds of ayahuasca paste, 15 bottles 10 of ayahuasca liquid, 260.5 grams of ‘suspected’ psilocybin mushrooms, and more than 11 $14,025.” (Doc. 57 at 5-6). On August 23, 2021, Villanueva was arrested at Los 12 Angeles International Airport before departing for Peru to participate in alleged religious 13 ceremonies. (Doc. 125 at 2). The Court, on September 8, 2021, denied without prejudice 14 an Application for Writ of Habeas Corpus filed on Villanueva’s behalf on the ground that 15 the petition failed to name the proper respondent and did not provide an adequate legal 16 basis. (Doc. 131). 17 Although a DEA guidance document (“the Guidance”) first promulgated in 2009 18 established a procedure for seeking religious exemptions from the CSA, see U.S. Dep’t of 19 Just., Guidance Regarding Petitions for Religious Exemption from the Controlled 20 Substances Act Pursuant to the Religious Freedom Restoration Act, Plaintiffs have not 21 sought an exemption. Plaintiffs allege they failed to seek an exemption because of an 22 alleged DEA “policy of denying regulatory services to visionary churches and refusing 23 all requested religious exemptions from the CSA” and because doing so allegedly “would 24 waive the Fifth Amendment rights of the Founder” of AYA, Scott Stanley. (Doc. 109 at 25 28, 35). Finally, Plaintiffs claim they are not required to exhaust the administrative 26 resources for an exemption because the DEA has not promulgated the Guidance through 27 APA rulemaking procedures. (Doc. 109 at 32-33).

28 5 Law enforcement then executed a search warrant at Villanueva’s residence at 1134 W. Glenrosa Avenue, Phoenix, Arizona. (Doc. 39-3). 1 ANALYSIS 2 I. Motions to Dismiss 3 Three motions to dismiss have been filed. One was filed by the Federal 4 Defendants (Doc. 112), one by Paddy (Doc. 111), and one by Maricopa County and 5 Shay. (Doc. 110). 6 A pleading must contain a “short and plain statement of the claim showing that the 7 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a 8 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 9 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted)). 11 “[W]here the well-pleaded facts do not permit the court to infer more than the mere 12 possibility of misconduct, the complaint” has not adequately shown the pleader is entitled 13 to relief. Id. at 679. Although federal courts ruling on a motion to dismiss “must take all 14 of the factual allegations in the complaint as true, we ‘are not bound to accept as true a 15 legal conclusion couched as a factual allegation.’” Id. at 678 (quoting Twombly, 550 U.S. 16 at 555). 17 A. The Federal Defendants’ Motion to Dismiss 18 Plaintiffs bring a RFRA claim against all Federal Defendants, an APA claim 19 against the United States and the DEA, and a § 1983 claim against the DEA. (Doc. 109 20 at 6-7, 43, 61, 66). The Federal Defendants collectively filed a motion to dismiss on 21 three grounds. First, they argue the Court does not have jurisdiction over Plaintiffs’ 22 RFRA claim because the statute of limitations has run, or Plaintiffs’ APA claim because 23 it is not ripe. (Doc. 112 at 8). In the alternative, Federal Defendants argue original 24 jurisdiction lies in the courts of appeals pursuant to 21 U.S.C. § 877. (Doc. 112 at 8). 25 Second, they argue the RFRA claim should be dismissed for lack of standing and failure 26 to state a claim. (Doc. 112 at 8). Third, they argue Plaintiffs have failed to state a claim 27 under § 1983. (Doc. 112 at 8). The Federal Defendants’ motion to dismiss will be 28 granted. 1 1. Jurisdiction 2 Standing is a necessary requirement for federal jurisdiction. Susan B. Anthony List 3 v. Driehaus, 573 U.S. 149, 157 (2014). To “satisfy Article III’s standing requirements, a 4 plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and 5 particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is 6 fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed 7 to merely speculative, that the injury will be redressed by a favorable decision.” Friends 8 of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). A 9 “plaintiff must demonstrate standing for each claim he seeks to press.” DaimlerChysler 10 Corp. v. Cuno, 547 U.S. 332, 352 (2006) (citation omitted). Federal courts are required 11 to raise issues of subject matter jurisdiction sua sponte. See Gonzalez v. Thaler, 565 U.S. 12 134, 141 (2012). 13 a. Standing to challenge the Guidance 14 The Federal Defendants argue Plaintiffs’ claim is time-barred by 28 U.S.C. § 15 2401(a) to the extent Plaintiffs make a facial challenge to the Guidance. (Doc. 112 at 16 10). Section 2401(a) establishes a six-year statute of limitations for “every civil action 17 commenced against the United States,” with one exception not relevant here.6 28 U.S.C. 18 § 2401(a); Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991). 19 If Plaintiffs’ RFRA claim against the United States accrued more than six years ago, it 20 would be time-barred. However, there is no need to determine whether Plaintiffs’ facial 21 challenge to the Guidance is time-barred because Plaintiffs do not have standing to 22 challenge the Guidance. 23 Contrary to the Federal Defendants’ contention (Doc. 112 at 11), the Guidance 24 does not impose an exhaustion requirement for suits seeking CSA exemptions under 25 RFRA. Guidance documents not promulgated through APA rulemaking or adjudicatory 26 procedure generally do not have the effect of law and are not controlling on courts. See

27 6 Contrary to the Federal Defendants’ argument (Doc. 112 at 3), § 2401(a) is non- jurisdictional. See Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 765, 770 (9th Cir. 1997). 28 Because there does not exist subject matter jurisdiction to review a challenge to the Guidance, it is unnecessary to determine whether the limitations period has expired. 1 Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 97 (2015) (“[I]nterpretive rules do not have 2 the force and effect of law and are not accorded that weight in the adjudicatory process.”) 3 (quotation omitted); Indergard v. Georgia-Pacific Corp., 582 F.3d 1049, 1053 4 (“[A]gency guidance documents are not controlling upon courts.”) (quotation marks and 5 citations omitted). Though there is a valid regulation, 21 C.F.R. § 1307.03, requiring 6 persons seeking exemptions to file a written request with the DEA Office of Diversion 7 Control, the Ninth Circuit held persons seeking a RFRA exemption from the DEA are not 8 required to exhaust the administrative remedy under § 1307.03.7 See Oklevueha I, 676 9 F.3d at 838 (“We decline . . . to read an exhaustion requirement into RFRA where the 10 statute contains no such condition and the Supreme Court has not imposed one.”) 11 (internal citation omitted). 12 However, Plaintiffs lack standing to challenge the Guidance because Plaintiffs’ 13 injury arises from application of the CSA and the designation of DMT as a Schedule I 14 substance. See 21 C.F.R. § 1308.11(d)(18). The Guidance does not require Plaintiffs to 15 do anything, or prevent them from doing anything, and therefore has not caused an actual 16 or imminent injury, which is required for standing.8 Cf. DaimlerChysler, 547 U.S. at 352 17 (“[A] plaintiff must demonstrate standing for each claim he seeks to press.”) (citation 18 omitted). 19 b. Plaintiffs’ APA claim is not ripe 20 Plaintiffs bring a claim under the APA, alleging the DEA has a “[p]olicy of

21 7 Judge Orrick of the Northern District of California noted that even a new substantive agency rule might not be able to impose a binding administrative exhaustion requirement 22 under Oklevueha I. (Doc. 57 at 14) (“[I]t is possible that regardless of any new regulations [DEA may promulgate], the plaintiffs will not have to seek an exemption 23 from the DEA prior to seeking judicial redress.”). 8 Even if Plaintiffs had standing to bring a facial challenge to the Guidance, that 24 challenge would plainly be without merit. Agencies are well within their rights, under 5 U.S.C. § 553(a), to promulgate guidance documents as interpretive rules or general 25 statements of policy without complying with APA rulemaking or adjudicatory procedures. See Lincoln v. Vigil, 508 U.S. 182, 196 (1993). The consequence of not 26 following those procedures is that a guidance document, unlike a legislative rule, usually is not binding and does not receive Chevron deference. See Indergard, 582 F.3d at 1053; 27 Nat. Mining Ass’n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014) (“Legislative rules generally require notice and comment, but interpretive rules and general statements of 28 policy do not. Legislative rules generally receive Chevron deference, but interpretive rules and general statements of policy do not.”) (Kavanaugh, J.) (citations omitted). 1 denying regulatory services to visionary churches and refusing all requested religious 2 exemptions from the CSA until and unless compelled by a court order.” (Doc. 109 at 3 62). The Federal Defendants argue there is no subject matter jurisdiction for this claim 4 because there has not been final agency action, Plaintiffs’ claim is not ripe, and original 5 jurisdiction is vested in the courts of appeals. (Doc. 112 at 8). 6 The Court need not determine whether there has been “final agency action” 7 sufficient to permit judicial review pursuant to 5 U.S.C. § 704 because Plaintiffs lack 8 standing to assert a claim under the APA. The APA provides claims for persons 9 “suffering legal wrong because of agency action, or adversely affected or aggrieved by 10 agency action.” 5 U.S.C. § 702. Plaintiffs claim the DEA’s alleged policy of denying 11 exemptions to visionary churches resulted in agency action that is reviewable under § 12 702. Plaintiffs are incorrect. Plaintiffs have not suffered any legal wrong because they 13 have not participated in the exemption process. To raise a claim under the APA, 14 Plaintiffs are required to petition for an exemption or a new rulemaking. See 5 U.S.C. §§ 15 702, 704, 706; Madsen, 976 F.2d at 1220. Then, if the DEA denied the petition or 16 refused to respond to it, Plaintiffs could argue they were harmed because the DEA failed 17 to comply with the APA. See 5 U.S.C. § 706(1), (2) (setting forth the standard of review 18 of agency action). But Plaintiffs failed to do so. 19 Moreover, even if Plaintiffs had petitioned for an exemption and been rejected, 20 arguably jurisdiction would have been vested in a United States Court of Appeals 21 pursuant to 21 U.S.C. § 877. See John Doe, Inc. v. Drug Enf’t Admin., 484 F.3d 561, 568 22 (D.C. Cir. 2007) (“[A]lmost all cases challenging DEA decisions under the CSA have 23 been filed directly in the courts of appeals.”); Soul Quest Church of Mother Earth, Inc. v. 24 Garland, No. 6:20-cv-701-WWB-DCI (M.D. Fla. Mar. 4, 2022) (dismissing a CSA 25 ayahuasca challenge for lack of subject matter jurisdiction pursuant to § 877). 26 Plaintiffs’ APA claim will be dismissed without leave to amend. See 27 AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (“[A] 28 district court need not grant leave to amend where the amendment . . . is futile.”). 1 c. Plaintiffs have not demonstrated standing for the relief they 2 seek on the RFRA claim 3 The Federal Defendants argue jurisdiction is lacking for three reasons: Because 4 original jurisdiction is vested in the court of appeals, Plaintiffs have failed to “articulate[] 5 a ‘concrete plan’ to violate” the CSA, and Plaintiffs have failed to demonstrate a risk of 6 imminent prosecution by the federal government. (Doc. 112 at 15-18). 7 Contrary to the Federal Defendants’ argument, original jurisdiction over Plaintiffs’ 8 RFRA claim is not vested the United States Courts of Appeals. Although courts have 9 held original jurisdiction for challenges to CSA scheduling decisions exists only in the 10 courts of appeals pursuant to 21 U.S.C. § 877, see, e.g., John Doe, Inc., 484 F.3d at 568; 11 Nation v. Trump, 818 F.App’x 678, 681 (9th Cir. 2020), the jurisdictional limitation has 12 not been applied in cases seeking a CSA exemption pursuant to RFRA.9 Section 877 13 applies only to “final decision[s] of the Attorney General.”10 See 21 U.S.C. § 877; 14 Advanced Integrative Med. Sci. Inst., PLLC v. Garland, 24 F.4th 1249, 1252 (9th Cir. 15 2022). The Federal Defendants argue that the decision to promulgate the Guidance 16 constituted a final decision of the Attorney General. (Doc. 112 at 13). But it does not 17 matter whether the Guidance is a final decision that triggers § 877 because Plaintiffs do 18 not have standing to challenge the Guidance. On the claim for which Plaintiffs may have 19 standing—the RFRA challenge seeking a CSA exemption—there has been no decision of 20 the Attorney General that could trigger § 877’s jurisdictional limitation. Cf. id. at 1260 21 (holding a letter sent by the DEA that “did not grant or deny any request, nor impose any

22 9 For example, in Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418 (2006), the Supreme Court upheld a preliminary injunction issued by a district court 23 requiring the federal government to provide a Christian Spiritist sect a CSA exemption so that the sect could import and use ayahuasca. See id. at 437. And in Church of the Holy 24 Light of the Queen v. Mukasey, 615 F.Supp.2d 1210 (D. Or. 2009), a district court issued a permanent injunction permitting the plaintiffs, followers of the Brazilian Santo Daime 25 religion, to import and use ayahuasca. Id. at 1221. Although the Ninth Circuit subsequently vacated the injunction as overbroad, it did not hold the district court was 26 without jurisdiction to consider the challenge pursuant to § 877. See Church of the Holy Light of the Queen v. Holder, 443 F.App’x 302 (9th Cir. 2011). Like in O Centro or 27 Church of the Holy Light, Plaintiffs seek a religious exemption for themselves and their alleged congregants, not a rescheduling of DMT. (Doc. 109 at 44). 28 10 Courts have held that decisions by the DEA regarding CSA scheduling are subject to § 877. See John Doe, Inc., 484 F.3d at 568. 1 legal consequence” did not constitute a final decision of the Attorney General). Indeed, 2 Federal Defendants acknowledge in their motion to dismiss that the DEA has made no 3 final action applying the Guidance to Plaintiffs. (Doc. 112 at 11) (“To the extent 4 Plaintiffs challenge the Guidance as applied to them, they fail to identify any agency 5 ‘action,’ final or otherwise.”). 6 The Federal Defendants next argue Plaintiffs do not have standing to bring their 7 RFRA claim. The Court agrees. Plaintiffs have failed to demonstrate they have standing 8 to seek a prospective injunction or declaratory relief. Cf. Friends of the Earth, 528 U.S. 9 at 185 (“[A] plaintiff must demonstrate standing separately for each form of relief 10 sought.”). Plaintiffs seek a pre-enforcement injunction preventing the Federal 11 Defendants from prosecuting them or seizing the ayahuasca they import. (Doc. 109 at 12 92-93). To obtain a pre-enforcement injunction, Plaintiffs must “allege a ‘genuine threat 13 of imminent’” enforcement.11 See Oklevueha Native Am. Church of Haw., Inc. v. Holder 14 (Oklevueha I), 676 F.3d 829, 835 (9th Cir. 2012) (citation omitted). In determining 15 whether a plaintiff has satisfied this burden, courts “consider: (1) whether the plaintiffs 16 have articulated a ‘concrete plan’ to violate the law in question; (2) whether the 17 government has communicated a specific warning or threat to initiate proceedings; and 18 (3) the history of past prosecution or enforcement under the statute.” Id. 19 Plaintiffs do not have standing to seek prospective relief because they have failed 20 to allege a “concrete plan” to violate the CSA. The Ninth Circuit has held a “concrete 21 plan” requires more than a “general intent to violate a statute at some unknown date in 22 the future.” Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1139 (9th Cir. 23 2000) (en banc). Thus, in Thomas, the en banc court rejected a hypothetical plan to 24 violate a statute because the plan did not say “when, to whom, where, or under what 25 11 Although Federal Defendants have seized Plaintiffs’ ayahuasca in the past, the Court 26 characterizes the injunction Plaintiffs seek as a pre-enforcement injunction because the Oklevueha I court did so in a factually analogous situation. See Oklevueha I, 676 F.3d at 27 835 (“[B]ecause Plaintiffs’ claims are asserted for the first time in an action for prospective relief (and not in a criminal proceeding), we consider the familiar 28 ‘preenforcement claim’ ripeness analysis, while acknowledging its strained applicability to the unusual allegations before us.”). 1 circumstances” the plaintiffs intended to break the law. See id. Conversely, the 2 Oklevueha I court found this requirement satisfied because a plaintiff admitted to 3 violating the CSA daily and the plaintiffs said they had no plans to stop doing so. See id. 4 at 836 (“Plaintiffs are currently violating and plan to continue violating the CSA by 5 purchasing and consuming marijuana. Accordingly, Plaintiffs’ allegations satisfy the 6 concrete plan requirement.”). Plaintiffs have not alleged a concrete plan either by saying 7 when, to whom, where, or under what circumstances they intend to violate the CSA, or 8 by admitting they regularly violate the CSA and have no plans to stop doing so. Rather, 9 they say they plan to use ayahuasca only if an injunction is issued. See (Doc. 109 at 24). 10 That is insufficient under Thomas and Oklevueha. To demonstrate standing to seek a pre- 11 enforcement injunction, Plaintiffs must articulate a concrete plan by every Plaintiffs to 12 violate the CSA.12 13 The Court similarly lacks jurisdiction over Plaintiffs’ claim for declaratory relief. 14 The Ninth Circuit has held “a case or controversy exists justifying declaratory relief only 15 when the challenged government activity is not contingent, has not evaporated or 16 disappeared, and, by its continuing and brooding presence casts what may well be a 17 substantial adverse effect on the interests of petitioning parties.” Feldman v. Bomar, 518 18 F.3d 637, 642 (9th Cir. 2008) (quoting Headwaters, Inc. v. Bureau of Land Mgmt., 893 19 F.2d 1012, 1015 (9th Cir. 1990)). Plaintiffs’ claim for declaratory relief challenges 20 government activity that is contingent on Plaintiffs’ continued use of ayahuasca, and 21 Plaintiffs have not alleged the concrete plan to violate the CSA, which is a condition 22 precedent to the contingent government activity. Plaintiffs therefore do not have standing 23 to seek declaratory relief because their injury is speculative and does not “satisfy the 24 well-established requirement that threatened injury must be ‘certainly impending.’” See 25 12 Plaintiffs’ also ask the Court to order DHS to return their seized ayahuasca. (Doc. 109 26 at 93). However, they admit the DEA asserted the authority to destroy the seized ayahuasca and do not allege that the ayahuasca is still in the DEA’s possession. (Doc. 27 109 at 44). Plaintiffs do not assert a claim for money damages against the Federal Defendants for the value of the ayahuasca, and do not identify a cause of action that 28 could support such a claim. Plaintiffs therefore have not stated a claim to have the ayahuasca returned to them upon which relief could be granted, or damages for the same. 1 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013) (citation omitted). 2 However, the Court construes the complaint liberally and because it is possible a 3 fifth amended complaint could allege facts establishing the requirements of standing 4 consistent with federal subject matter jurisdiction over the claims for relief Plaintiffs 5 bring pursuant to RFRA, Plaintiffs’ RFRA claim will be dismissed with leave to amend. 6 But Arizona Yage Assembly’s motion for a preliminary injunction (Doc. 137) will be 7 denied because neither the Fourth Amended Complaint nor the motion for preliminary 8 injunction allege facts giving rise to standing to seek prospective injunctive relief. 9 2. Plaintiffs’ § 1983 claim against the Federal Defendants fails 10 Plaintiffs assert a claim under 42 U.S.C. § 1983 against the DEA, alleging that a 11 “conspiracy” between the DEA and Maricopa County resulted in the violation of Plaintiff 12 Villanueva’s civil rights. (Doc. 109 at 68-72). 13 “To state a claim under § 1983, a plaintiff must allege the violation of a right 14 secured by the Constitution and laws of the United States, and must show that the alleged 15 deprivation was committed by a person acting under color of state law.” West v. Atkins, 16 487 U.S. 42, 49 (1988) (citations omitted). Generally, “under color of state law” requires 17 that the defendant exercised a power “possessed by virtue of state law and made possible 18 only because the wrongdoer is clothed with the authority of state law.” Id. (quoting 19 United States v. Classic, 313 U.S. 299, 326 (1941)). Although state employees act under 20 color of state law when they act in their official capacity, see id. at 49-50, federal 21 employees do not because their authority does not come from state law. This does not, 22 however, mean federal employees are immune to suits under § 1983. For example, 23 federal courts have recognized that federal officers may be sued under § 1983 when they 24 engage in a conspiracy with state officials to infringe constitutional rights. See Hampton 25 v. Hanrahan, 600 F.2d 600, 623 (7th Cir. 1979) (holding federal officials may be sued 26 under § 1983 “when [they] are engaged in a conspiracy with state officials to deprive 27 constitutional rights”); Scott v. Rosenberg, 702 F.2d 1263, 1269 (9th Cir. 1983); see also 28 ERWIN CHEMERINSKY, FEDERAL JURISDICTION 541 & n.43 (8th ed.). 1 Seeking to establish a conspiracy between the DEA and local law enforcement, the 2 operative complaint alleges that the DEA came up with a “plan of attack” to target 3 Villanueva with an unlawful search and arrest.13 (Doc. 109 at 75-76). Even if Plaintiffs’ 4 factual allegations are assumed true, they do not amount to federal-state involvement that 5 would expose the DEA to liability under § 1983 because the only DEA involvement 6 Plaintiffs allege is a tip, procured from an allegedly mismanaged informant, that DEA 7 employee Marco Paddy passed along to local law enforcement.14 (Doc. 109 at 47-48, 50- 8 60). By itself, the allegation that Paddy knowingly passed a bad tip to Phoenix police 9 does not come close to demonstrating the existence of a conspiracy, between the MCSO 10 and the DEA, to violate Villanueva’s rights. It merely demonstrates that the DEA 11 communicates with other law enforcement agencies—a practice which is not unlawful. 12 See Scott, 702 F.2d at 1269 (holding contacts between federal and state officials did not 13 establish a conspiracy because the government employees neither “instigated the state 14 investigation or requested that state investigators procure information for them”); cf. 15 Iqbal, 556 U.S. at 679 (holding, “where the well-pleaded facts do not permit the court to 16 infer more than the mere possibility of misconduct, the complaint” has not adequately 17 shown the pleader is entitled to relief) (citations and quotations marks omitted). 18 Moreover, Plaintiffs fail to allege any communications whatsoever between the 19 DEA and MCSO regarding Villanueva. Plaintiffs therefore have not only failed to 20 adequately allege a conspiracy between local law enforcement and the DEA to target 21 Villanueva; they have failed to connect the alleged conspirators. This is inconsistent with 22 Plaintiffs’ allegation that, “at Agent Paddy’s instigation, Shay procured a warrant to 23 conduct a search of Villanueva’s home” because Plaintiffs do not allege Shay and Paddy 24 ever communicated in any way, much less that they did so to conspire to target 25 13 Plaintiffs appear to believe the DEA formed “retaliatory animus” against Plaintiffs as a 26 result of their pro-ayahuasca advocacy, “and to obtain tactical leverage in pending litigation by placing an NAAVC Board member at risk of prosecution.” (Doc. 109 at 67). 27 14 Defendants provided a declaration in support of their motion to dismiss while this case was pending in the Northern District of California stating Paddy passing along the tip was 28 the federal government’s only involvement in the operation against Villanueva. (Doc. 57 at 5). 1 Villanueva. (Doc. 109 at 59). 2 And although the operative complaint includes detailed factual allegations 3 regarding the alleged informant who was the alleged source of the information Paddy 4 gave to local law enforcement (Doc. 109 at 50-59), those allegations also do not 5 demonstrate a conspiracy between the DEA and state or local entities. Plaintiffs’ 6 allegations fail to connect the DEA’s informant to local law enforcement, and certainly 7 do not demonstrate that local law enforcement knew of the falsity of the tip or conspired 8 in procuring the allegedly false information in the tip. Cf. Ziglar v. Abbasi, 137 S.Ct. 9 1843, 1867 (2017) (“Conspiracy requires an agreement . . . between or among two or 10 more separate persons [or entities].”) (emphasis added). 11 The motion will be granted, and Plaintiffs’ claim against the DEA pursuant to § 12 1983 will be dismissed with leave to amend, because the Court finds Plaintiffs have not 13 pleaded facts sufficient to plausibly demonstrate the DEA was acting under color of state 14 law. If Plaintiffs seek to bring a fifth amended complaint, they must allege facts 15 consistent with a plausible claim that the DEA violated Plaintiffs’ rights while acting 16 under color of state law. 17 B. Defendant Marco Paddy 18 Plaintiffs assert claims against Marco Paddy under § 1983 and RFRA. Damages 19 are available under these claims against government officials sued in their personal 20 capacity, if the claims survive qualified immunity. See Tanzin v. Tanvir, 141 S.Ct. 486, 21 492-93 & n. * (2020). In his motion to dismiss, Paddy argues he did not substantially 22 burden Villanueva’s exercise, and that he is entitled to qualified immunity. (Doc. 111). 23 “Qualified immunity shields government officials from civil damages liability 24 unless the official violated a statutory or constitutional right that was clearly established 25 at the time of the challenged conduct.” Taylor v. Barkes, 575 U.S. 822, 825 (2015) 26 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). It is “an immunity from suit 27 rather than a mere defense to liability; and like an absolute immunity, it is effectively lost 28 if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 1 (1985) (emphasis omitted). For a right to be clearly established, “existing precedent must 2 have placed the . . . constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 3 731, 741 (2011). Or, in other words, “in light of pre-existing law the unlawfulness [of the 4 challenged conduct] must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 5 (1987). 6 1. Plaintiffs’ § 1983 claim against Paddy fails 7 Plaintiffs’ sole allegations against Paddy are that he mismanaged an informant and 8 passed along a tip he received from the informant to a Micah Kaskavage, Phoenix police 9 officer, that eventually led to a search of Villanueva’s residence.15 (Doc. 109 at 47-50; 10 Doc. 118 at 12-13). In other words, Plaintiffs do not allege that Paddy personally 11 violated any of the Plaintiffs’ rights. Under Iqbal, “vicarious liability is inapplicable to . . 12 . § 1983 suits, a plaintiff must plead that each Government-official defendant, through his 13 own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Even 14 assuming that some of Plaintiffs’ rights were violated, Paddy is not personally liable 15 under § 1983 for his limited involvement in the investigation against Villanueva because 16 he did not violate them himself. Moreover, because Plaintiffs have failed to demonstrate 17 the DEA acted under color of state law, they have failed to show Paddy acted under color 18 of state law. 19 In Plaintiffs’ response to Paddy’s motion to dismiss, Plaintiffs argue “[q]ualified 20 immunity is unavailable at this stage of the proceedings because Paddy’s motive for 21 generating and publishing misinformation is a disputed fact that forms one basis for 22 Plaintiffs’ RFRA and § 1983 claims.” (Doc. 118 at 13). Plaintiffs’ argument 23 misunderstands the nature of both qualified immunity and motions to dismiss. Qualified 24 15 Plaintiffs allege for the first time in their response to Paddy’s motion to dismiss that 25 “Paddy . . . pressur[ed] them to abandon their plans to hold future Ayahuasca Ceremonies.” (Doc. 118 at 10). Plaintiffs failed to include this allegation in their 26 operative complaint. Moreover, it is not clear from this lone sentence that Plaintiffs mean to allege that Paddy personally pressured them. Rather, the Court infers from other 27 filings that Plaintiffs mean to say that Paddy’s other alleged conduct indirectly caused Plaintiffs to feel pressure not to hold ayahuasca events. See (Doc. 118 at 13) (claiming 28 Paddy “triggered a law enforcement action with the intent to . . . coerce Villanueva and NAAVC members into abandoning their religious practice.”). 1 immunity is an immunity from suit, not a defense that arises at later stages of litigation. 2 See Mitchell, 472 U.S. at 526. Plaintiffs’ assertion that merely pleading a prima facie 3 case under § 1983 is sufficient to overcome qualified immunity (Doc. 118 at 12) is wrong 4 as a matter of law. Cf. Pearson v. Callahan, 555 U.S. 223, 243-45 (2009) (holding 5 officers sued under § 1983 for executing a warrantless search were entitled to qualified 6 immunity). The question at this stage is not whether Paddy’s motives are subject to 7 dispute. The question is whether, assuming Paddy passed a tip or supervised an 8 informant with animus toward Villanueva, Plaintiffs can recover. The answer is no. 9 Plaintiffs cannot recover from Paddy under § 1983 because Plaintiffs have not alleged 10 Paddy personally violated a clearly established right while acting under color of state law. 11 2. Plaintiffs’ RFRA claim against Paddy fails 12 Plaintiffs also have not alleged a sufficient factual basis to overcome qualified 13 immunity on their RFRA claim. The act of passing a tip to local law enforcement 14 regarding a potential drug producer—even one who may have a religious interest in drug 15 production—does not substantially burden religious expression, much less that it does so 16 in a clearly established manner. Most of the allegations supporting Plaintiffs’ RFRA 17 claim concern the manner in which Paddy supervised an alleged informant. (Doc. 109 at 18 50-60). Even assuming that Paddy mismanaged the informant in the manner Plaintiffs 19 allege, that mismanagement does not demonstrate Paddy substantially burdened 20 Plaintiffs’ religious expression—and certainly not in a manner prohibited by clearly 21 established law. Indeed, Plaintiffs have not identified a single case in which liability was 22 found in similar circumstances. 23 The Court finds a fifth amended complaint would be futile because Plaintiffs’ 24 allegations are inconsistent with any plausible set of facts that would tend to show Paddy 25 personally violated Plaintiffs’ rights under color of state law in a manner that violated 26 clearly established law. Plaintiffs’ claims against Paddy will therefore be dismissed 27 without leave to amend. 28 C. Defendant Maricopa County 1 Plaintiffs assert a claim against Maricopa County under § 1983,16 AFERA, and 2 several state torts, including trespass, battery, conversion, negligence, and loss of 3 consortium. (Doc. 109 at 66, 77, 79, 80, 81, 82). Pursuant to these claims, Plaintiffs seek 4 monetary, declaratory, and injunctive relief. 5 In its motion to dismiss, Maricopa County argues Plaintiffs’ claim of employer 6 liability is barred by state law, that Plaintiffs failed to establish municipal policy or 7 custom caused their injury, and that Plaintiffs failed to state a claim for injunctive or 8 declaratory relief. (Doc. 110 at 9-16). 9 1. Abstention 10 Under the Younger abstention doctrine, federal courts generally refrain from 11 enjoining state criminal proceedings as a matter of comity. See Younger v. Harris, 401 12 U.S. 37, 44 (1971); see also Samuels v. Mackell, 401 U.S. 66, 72-73 (1971) (clarifying 13 Younger abstention ordinarily applies to declaratory relief); Herrera v. City of Palmdale, 14 918 F.3d 1037, 1042 (9th Cir. 2019) (holding suits for money damages should be stayed 15 pursuant Younger abstention until state court proceedings conclude); 28 U.S.C. § 2283. 16 For Younger abstention to apply, a state prosecution need not necessarily precede the 17 federal action. In Hicks v. Miranda, the Supreme Court held, “where state criminal 18 proceedings are begun against the federal plaintiffs after the federal complaint is filed but 19 before any proceedings of substance on the merits have taken place in federal court, the 20 principles of Younger v. Harris should apply in full force.” Hicks v. Miranda, 422 U.S. 21 332, 349 (1975). 22 Villanueva is currently being prosecuted by Arizona. (Doc. 131). In order to 23 resolve Villanueva’s § 1983, AFERA, or state tort claims in Villanueva’s favor, a finding 24 by the Court that the MCSO engaged in unlawful and unconstitutional conduct in the 25 investigation gave rise to Villanueva’s prosecution would be necessary. Because 26 Villanueva filed this matter before Arizona initiated prosecution, the Court must 27 16 Villanueva brings § 1983 claims for alleged violations of his rights under the First, 28 Fourth, Fifth, and Fourteenth Amendments. (Doc. 109 at 74-75). NAAVC alleges a violation of its rights under the First Amendment. (Doc. 109 at 75-77). 1 determine whether “proceedings of substance on the merits ha[d] taken place in federal 2 court” before Arizona began to prosecute Villanueva such that Younger abstention would 3 not apply. See Hicks, 422 U.S. at 349. 4 The exact meaning of “proceedings of substance on the merits” is unclear. The 5 Supreme Court has held a federal court’s denial of a request for a temporary restraining 6 order does not prevent abstention. See Hicks, 422 U.S. at 337. Conversely, a federal 7 court granting a preliminary injunction is sufficient to preclude application of Younger if 8 it occurred prior to the institution of the state enforcement action, See Haw. Hous. Auth. 9 v. Midkiff, 467 U.S. 229, 238 (1984), or if “the federal court ha[d] conducted extensive 10 hearings on a motion for a preliminary injunction.” Polykoff v. Collins, 816 F.2d 1326, 11 1332 (9th Cir. 1987). 12 Villanueva filed this matter in the Northern District of California on May 5, 2020. 13 (Doc. 1). On May 19, six days after the summons issued, MCSO employee Matthew 14 Shay executed a search warrant on Villanueva’s residence. (Doc. 117 at 3). On 15 September 21, 2020, the Northern District of California denied Plaintiffs’ request for a 16 preliminary injunction and dismissed the Arizona and Maricopa defendants for lack of 17 personal jurisdiction. (Doc. 57 at 29). The matter was transferred to the District of 18 Arizona on December 8, 2020. (Doc. 66). Plaintiffs filed the Fourth Amended 19 Complaint on May 27, 2021. (Doc. 109). Villanueva was arrested at Los Angeles 20 International Airport on August 23, 2021. (Doc. 125 at 2). The significant gap between 21 the filing of the complaint and the initiation of state criminal proceedings could suggest 22 this matter was not still in the “embryonic stage,” Midkiff, 467 U.S. at 238, at the time of 23 the arrest. 24 However, all proceedings in this matter prior to the arrest concerned jurisdiction 25 and venue. For example, Judge Orrick based his decision denying a preliminary 26 injunction entirely on the ground that venue was improper in the Northern District of 27 California. (Doc. 57 at 23-28). This Order marks the first time a federal court has 28 considered the merits of Plaintiffs’ claims, though on motions to dismiss. Therefore, 1 despite the year-and-three-month separation between the initiation of this matter and 2 Villanueva’s arrest, proceedings of substance on the merits had not occurred at the time 3 Villanueva was apprehended. 4 Younger abstention is appropriate on Villanueva’s claims against Maricopa 5 County due to the prosecution of Villanueva pending in state court. The Court will 6 therefore dismiss Villanueva’s claims for injunctive and declaratory relief against 7 Maricopa County and stay Villanueva’s claims for money damages. See Herrera, 918 8 F.3d at 1042 (“[W]hen a court abstains under Younger, claims for injunctive and 9 declaratory relief are typically dismissed. However, our court has also recognized that, 10 when a district court abstains from considering a damages claim under Younger, it must 11 stay—rather than dismiss—the damages action until state proceedings conclude.”). All 12 tort claims raised in the complaint appear to be made by Villanueva, alone. (Doc. 109 at 13 77-82). They will all be dismissed or stayed in accord with Herrera, as will Villanueva’s 14 § 1983 claims. 15 2. § 1983 16 Although the Court must abstain from Villanueva’s claims, the Court need not 17 abstain from NAAVC’s § 1983 claim, which challenges on First Amendment grounds the 18 search of Villanueva’s residence and seizure of the ayahuasca therein, because NAAVC 19 is not being prosecuted. Younger does not bar federal actions by persons or entities not 20 subject to state prosecution. See Steffel v. Thompson, 415 U.S. 452, 462 (1974); Doran v. 21 Salem Inn, Inc., 422 U.S. 922, 930 (1975). 22 Local governments may be held liable under for § 1983 violations under Monell v. 23 New York City Department of Social Services, 436 U.S. 658 (1978), but they “are 24 responsible only for ‘their own legal acts.’ They are not vicariously liable under § 1983 25 for their employees’ actions.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting 26 Pembauer v. Cincinnati, 475 U.S. 469, 479 (1986)) (internal citations omitted). To 27 impose liability on local governments under § 1983, Plaintiffs must prove an “action 28 pursuant to official municipal policy” caused their injury. Monell, 436 U.S. at 691. 1 NAAVC argues “[c]onscious indifference to the rights of civil rights of persons in 2 Maricopa County” is “endemic within MCSO.” (Doc. 109 at 69). NAAVC claims 3 “MCSO deputies continue to be tainted by unconstitutional bias” left over from the 4 tenure of Joe Arpaio as Sheriff of Maricopa County. (Doc. 109 at 69-70). But NAAVC 5 does not allege that current leadership within Maricopa County has set a policy of 6 indifference toward civil rights. And vicarious municipal liability on the facts Plaintiffs 7 allege long after Arpaio lost his authority within the County has not been established in 8 the Fourth Amended Complaint. 9 NAAVC’s claim under § 1983 will be dismissed with leave to amend because it is 10 possible that an amended complaint could raise a claim sufficient to withstand a motion 11 to dismiss. If NAAVC seeks to bring a fifth amended complaint, it must allege facts 12 consistent with a plausible claim that an official municipal policy in existence at the time 13 of the search caused their injury. 14 D. Defendant Matthew Shay 15 Plaintiffs name MCSO Deputy Detective Matthew Shay as a defendant of their 16 claims under § 1983, AFERA, and several torts.17 (Doc. 109 at 66, 77, 79, 80, 81, 82). 17 Shay was the MCSO employee who obtained the search warrant and conducted the 18 search of Villanueva’s residence that gives rise to many of the claims in this litigation. 19 (Doc. 109 at 72). Shay argues Plaintiffs have failed to comply with state procedural 20 prerequisites to bring a claim for money damages, that qualified immunity applies, and 21 that Plaintiffs fail to make a claim for injunctive or declaratory relief. (Doc. 110 at 3-8). 22 A.R.S. § 12-821.01(A) requires persons with possible claims for money damages 23 against Arizona public employees to serve a notice of claim within 180 days after the 24 cause of action accrues. Plaintiffs did not serve a notice of claim against Shay. (Doc. 95 25 at 17; Doc. 110 at 3) The motion to dismiss filed by Maricopa County and Shay states 26 that Plaintiffs “have now stricken all requests for damages against Shay” under state law

27 17 The Court finds Younger abstention is not necessary for these claims because they can be resolved on grounds not relevant to Villanueva’s pending state prosecution, and 28 therefore would not “result in a clearly improper interference with the state proceedings.” See Samuels, 401 U.S. at 72. 1 claims. (Doc. 110 at 3). To the extent Plaintiffs still bring a claim for money damages 2 against Shay for violation of state law, or intend to bring one in the future regarding the 3 allegations that give rise to this complaint, the claim is barred by A.R.S. § 12-821.01(A). 4 Shay may also be entitled to qualified immunity. 5 Plaintiffs also have not alleged a sufficient factual basis to support an injunction 6 against Shay. To obtain an injunction, a “plaintiff must show that he ‘has sustained or is 7 immediately in danger of sustaining some direct injury’ as a result of the challenged 8 official conduct and the injury or threat of injury must be both ‘real and immediate.’” 9 City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). “Past exposure to illegal 10 conduct does not itself show a present case or controversy regarding injunctive relief, 11 however, if unaccompanied by any continuing, present adverse effects.” O’Shea v. 12 Littleton, 414 U.S. 488, 495-96 (1974). Plaintiffs’ claims relate to Shay’s alleged 13 violation of Plaintiffs’ rights in the past. With Villanueva already under prosecution and 14 VOLC already having been searched, Plaintiffs do not provide any reason to believe that 15 Shay is likely to violate their rights in the future. Therefore, Plaintiffs are not entitled to 16 an injunction against Shay. 17 In light of these limitations on Shay’s liability, Plaintiffs will not be granted leave 18 to amend. 19 CONCLUSION 20 For the foregoing reasons, the motions to dismiss filed by the Federal Defendants 21 (Doc. 112), Marco Paddy (Doc. 111), and Maricopa County and Matthew Shay (Doc. 22 110) will be granted. The motion for a preliminary injunction will be denied. (Doc. 23 137). 24 The Court abstains from Clay Villanueva’s claims against Maricopa County and 25 Matthew Shay due to Villanueva’s pending prosecution. Villanueva’s claims for money 26 damages will be stayed pursuant to Herrera and his claims for declaratory and injunctive 27 relief will be dismissed without prejudice. See Herrera, 918 F.3d at 1042. 28 Accordingly, 1 IT IS ORDERED Motion to Dismiss Plaintiffs’ Fourth Amended Complaint 2 (Doc. 112) filed by the United States, U.S. Attorney General, Drug Enforcement 3 Administration Administrator, Secretary of Homeland Security, and Commissioner for 4 U.S. Customs and Border Protection is GRANTED. Plaintiffs’ claim against the United 5 States and the Drug Enforcement Administration Administrator under the Administrative 6 Procedure Act is DISMISSED WITHOUT LEAVE TO AMEND. Plaintiffs’ claim 7 against the Drug Enforcement Administration Administrator under 42 U.S.C. § 1983 is 8 DISMISSED WITH LEAVE TO AMEND. Plaintiffs’ Religious Freedom Restoration 9 Act claim against the United States, U.S. Attorney General, Drug Enforcement 10 Administration Administrator, Secretary of Homeland Security, and Commissioner for 11 U.S. Customs and Border Protection is DISMISSED WITH LEAVE TO AMEND. 12 IT IS FURTHER ORDERED Defendant Marco Paddy’s Motion to Dismiss 13 Plaintiffs’ Fourth Amended Complaint (Doc. 111) is GRANTED. Plaintiffs’ claims 14 against Paddy are DISMISSED WITHOUT LEAVE TO AMEND. The Clerk of Court 15 is directed to dismiss Defendant Marco Paddy from this matter. 16 IT IS FURTHER ORDERED Defendants Maricopa County and Matthew Shay’s 17 Motion to Dismiss Fourth Amended Complaint (Doc. 110) is GRANTED. Plaintiff Clay 18 Villanueva’s claims for money damages against Defendant Maricopa County are 19 STAYED. Plaintiff Clay Villanueva’s claims for declaratory and injunctive relief against 20 Defendant Maricopa County are DISMISSED WITHOUT PREJUDICE. Plaintiff 21 National Association of American Visionary Churches’ claims against Defendants 22 Maricopa County are DISMISSED WITH LEAVE TO AMEND. Plaintiffs’ claims 23 against Defendant Matthew Shay are DISMISSED WITHOUT LEAVE TO AMEND. 24 The Clerk of Court is directed to dismiss Defendant Matthew Shay from this matter. 25 … 26 … 27 … 28 … 1 IT IS FURTHER ORDERED Plaintiff Arizona Yage Assembly’s Motion to 2|| Deem Papers Timely Filed (Doc. 149) is GRANTED. Plaintiff Arizona Yage || Assembly’s Motion and Memorandum in Support for Preliminary Injunction (Doc. 137) is DENIED. 5 Dated this 30th day of March, 2022. 6 fo

8 Honorable Ros yn ©. Silver 9 Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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