Gallagher v. DEA

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 7, 2019
• Docket: 18-1352
• Status: Unpublished

Opinion

FILED United UNITED STATES COURT OF APPEALS States Court of Appeals Tenth Circuit FOR THE TENTH CIRCUIT _________________________________ March 7, 2019

Elisabeth A. Shumaker RYAN GALLAGHER, Rev. “Sasha,” Clerk of Court Plaintiff-Appellant,

v. No. 18-1352 (D.C. No. 1:18-CV-01674-LTB) DRUG ENFORCEMENT (D. Colo.) ADMINISTRATION; JAMES ARNOLD; SUSAN A. GIBSON; and DREW, Agent in Centennial Office,

Defendants-Appellees.

_________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________

This appeal is brought by Rev. Ryan “Sasha” Gallagher, who

identifies himself as a Hindu Shaivite. Rev. Gallagher allegedly regards

marijuana as a religious sacrament, so he asked the Drug Enforcement

* Oral argument would not materially aid our consideration of the appeal, so we have decided the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); Tenth Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited as otherwise appropriate. See Fed. R. App. P. 32.1(a) and Tenth Cir. R. 32.1(A). Administration for an exemption allowing him to use marijuana. According

to Rev. Gallagher, the DEA failed to timely respond but eventually asked

for a meeting with him. Rev. Gallagher responded by suing, alleging that

the delay violated his constitutional rights and that the DEA’s request for a

meeting constituted a subterfuge to force him to incriminate himself. The

district court dismissed the action, concluding that the allegations in the

complaint were frivolous and failed to state a claim on which relief can be

granted. See 28 U.S.C. § 1915(e)(2)(B)(i)–(ii). We affirm.

On appeal, we apply a two-part standard based on the two different

grounds for dismissal. For the dismissal based on frivolousness, we apply

the abuse-of-discretion standard. See Conkle v. Potter, 352 F.3d 1333, 1335

n.4 (10th Cir. 2003) (“This court reviews frivolousness dismissals for an

abuse of discretion.”). For the dismissal involving failure to state a claim

on which relief can be granted, we apply de novo review. See Perkins v.

Kan. Dept. of Corrs., 165 F.3d 803, 806 (10th Cir. 1999) (holding that we

apply de novo review to a dismissal under 28 U.S.C. § 1915 based on

failure to state a claim on which relief can be granted).

In the complaint, Rev. Gallagher alleged that the DEA took too long

to respond to his request for a religious exemption. The district court

pointed out that Rev. Gallagher hadn’t identified the drug he wanted to use

or how it is used in his religion. Without such basic information, the

district court concluded that Rev. Gallagher’s claim was frivolous and did

2 not amount to a constitutional violation. In his appeal brief, Rev. Gallagher

does not say how the district court erred in its analysis of this claim.

Rev. Gallagher also alleged in the complaint that the DEA was trying

to force him to incriminate himself. For this allegation, the district court

reasoned that Rev. Gallagher had not explained how arrangement of a

meeting would violate his constitutional rights. In his appeal brief, Rev.

Gallagher again fails to say how the district court erred in its consideration

of this claim.

In his appeal brief, Rev. Gallagher adds allegations involving the

“incorporation doctrine” and “bill of attainder.” But he did not include

these allegations in district court, so they are considered forfeited. Carney

v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 1351–52 (10th Cir. 2017).

And even here, Rev. Gallagher fails to explain (1) how his allegations

would implicate the so-called “incorporation doctrine” or (2) how he was

subjected to a bill of attainder.

For these reasons, the district court did not abuse its discretion in

characterizing Rev. Gallagher’s claims as frivolous. Nor did the court err

in deciding that the complaint failed to state a claim on which relief can be

granted.

3 Affirmed. 1

Entered for the Court

Robert E. Bacharach Circuit Judge

1 We grant Rev. Gallagher’s motion for leave to proceed in forma pauperis.