
    MULTI DENOMINATIONAL MINISTRY OF CANNABIS AND RASTAFARI, INC, et al, Plaintiffs, v. Alberto GONZALES, et al, Defendants.
    No. C-06-4264 VRW.
    United States District Court, N.D. California.
    Feb. 2, 2007.
    
      Multi Denominational Ministry of Cannabis and Rastafari Inc. By Rev. Tom Brown, Upper Lake, CA, pro se.
    Linda Sentí, Upper Lake, CA, pro se.
    Tom Brown, Upper Lake, CA, pro se.
    Craig Tierney, Upper Lake, CA, pro se.
    Steve Scott, Nice, CA, pro se.
    Tom Wahl, Nice, CA, pro se.
    Erica Womachka, Upper Lake, CA, pro se.
    Julie A. Arbuckle, U.S. Department of Justice United States Attorney’s Office, San Francisco, CA, Jack Charles Wood-side, Attorney General’s Office, Terence J. Cassidy, Porter, Scott, Weiberg & Dele-hant, Sacramento, CA, Anita L. Grant, Lakeport, CA, for Defendants.
   ORDER

WALKER, Chief Judge.

On July 12, 2006, plaintiffs sued in pro per seeking, inter alia, declaratory and injunctive relief to prevent defendants from interfering with the exercise of their religion, which involves the use of marijuana. Doc # 1. Defendants have moved to dismiss the complaint pursuant to FRCP 12(b)(6). Doc ## 21, 34, 24. For reasons that follow, the court GRANTS defendants’ motions to dismiss.

I

A

“On a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party.” Wyler Summit Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir.1998) (citing Parks School of Business, Inc. v. Symington, 51 F.3d 1480,1484 (9th Cir.1995)). Accordingly, the facts upon which the court rules are those drawn from plaintiffs’ complaint (Doc # 1), taking their allegations as true.

In August 2002, agents from the federal DEA and sheriff deputies from Lake County confiscated 288 marijuana plants from plaintiffs’ property in Upper Lake, California. Doc # 1, ¶ 19(c). Linda Sentí, along with her husband Charles Lepp (who is not a party to the current suit) brought an action in this court, see Lepp et al v. DEA et al, C-02-5901 VRW, alleging violations of their constitutional rights arising out of this search and seizure. The court granted federal and municipal defendants’ motions to dismiss on November 29, 2004. Doc # 58, 02-5901.

In August 2004, DEA agents, with the assistance of deputies from the Lake County sheriffs department, confiscated an additional 32,500 marijuana plants from the property. Doc # 1, ¶ 17(f). In response, on February 8, 2005, Sentí, Lepp and James Harris brought suit pro per in this court, see Lepp et al v. Ashcroft et al, C-05-566 VRW, asserting seven causes of action against federal and municipal defendants stemming from the August 2004 search. Doc # 46, 05-566. Plaintiffs sought compensation for the property seized and a permanent injunction prohibiting defendants from seizing plaintiffs’ marijuana in the future. Id. Soon thereafter, the court granted motions to dismiss filed by federal and municipal defendants pursuant to FRCP 12(b)(1) and 12(b)(6). Id at 22.

In February 2005, DEA agents confis-‘ cated from the same property an additional 11,500 marijuana plants. Doc # 1, ¶ 17(h). Due to the allegedly illegal activities taking place on plaintiffs’ property, the federal government filed forfeiture proceedings against the property; these proceedings are currently pending in the Northern District of California before Judge Patel. Doc # 1, 05-897—MHP.

Plaintiffs incorporated Multi Denominational Ministry of Cannabis and Rastafari (“MDMCR”) on April 17, 2006. Doc # 3. Three months later, plaintiffs filed the present suit, alleging violation of (1) the Free Exercise Clause and Establishment Clause of the First Amendment, (2) the Religious Freedom Restoration Act of 1993 (“RFRA”), (3) the Religious Land Use and Institutionalized Persons Act, 42 USC § 2000cc (“RLUIPA”) and (4) Proposition 215, California’s Compassionate Use Act of 1996. Doc # 1 at 24-27. Plaintiffs seek declaratory and injunctive relief to prohibit federal, state and local authorities from confiscating marijuana plants grown on their property. Id.

Presently before the court are motions to dismiss from federal, municipal and state defendants. Doc ## 21, 34, 24.

B

FRCP 12(b)(6) motions to dismiss essentially “test whether a cognizable claim has been pleaded in the complaint.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). FRCP 8(a), which states that a plaintiffs pleadings must contain “a short and plain statement of the claim showing that the pleader is "entitled to relief,” provides the standard for judging whether such a cognizable claim exists. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir.2001). This standard is a liberal one that does not require a plaintiff to set forth all the factual details of the claim; rather, all that the standard requires is that a plaintiff give the defendant fair notice of the claim and the grounds for making that claim. Leatherman v. Tarrant County Narcotics Intell & Coord Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). To this end, a plaintiffs complaint should set forth “either direct or inferential allegations with respect to all the material elements of the claim.” Wittstock v. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir.2003).

Under Rule 12(b)(6), a complaint “should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). See also Conley, 355 U.S. at 45-46, 78 S.Ct. 99. All material allegations in the complaint must be taken as true and construed in the light most favorable to plaintiff. See In re Silicon Graphics Inc. Securities Litig., 183 F.3d 970, 980 n10 (9th Cir1999). The court may also consider documents attached to the complaint in connection with a FRCP 12(b)(6) motion to dismiss. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). The court may not, however, consider other documents outside the pleadings. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001).

II

The court first addresses the procedural defects asserted by defendants, starting with the argument that sovereign immunity precludes plaintiffs’ constitutional claim against federal and state defendants.

A

The party asserting federal jurisdiction has the burden of proving the facts necessary for such jurisdiction. See Clayton Brokerage Co. of St. Louis, Inc. v. Bunzel, 820 F.2d 1459, 1462 (9th Cir.1987). See also Cornelius v. Moxon, 301 F.Supp. 783, 785-86 (D.N.D.1969) (party seeking relief is required either to plead the basis of federal jurisdiction or facts that would give rise to such jurisdiction).

A suit against federal employees in their official capacities is considered a suit against the United States and thus subject to the defense of sovereign immunity. Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). Accordingly, such suits cannot be maintained unless Congress has explicitly waived the sovereign immunity of the United States. Lane v. Pena, 518 U.S. 187, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). Absent an explicit waiver, a district court lacks subject matter jurisdiction over any claim against the United States. See Orff v. United States, 358 F.3d 1137, 1142 (9th Cir.2004) (“Any claim for which sovereign immunity has not been waived must be dismissed for lack of jurisdiction.”) (citing Gilbert v. DaGrossa, 756 F.2d 1455 (9th Cir.1985)). Likewise, absent a state’s consent, the Eleventh Amendment bars suits against state officials in their official capacity. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

Federal officers may be sued in their personal capacities for violating an individual’s constitutional rights. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). If an officer is sued in his personal capacity, as opposed to his official capacity, the suit is not against the United States, and thus money damages can be received. Id at 395, 91 S.Ct. 1999. Additionally, under the Ex parte Young exception to sovereign immunity, a party may obtain prospective relief against a state official provided the official is sued in his personal capacity. Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 114, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

In the present case, plaintiffs bring suit against officers of California and the United States in their official capacities. Doc # 1, ¶¶ 4-6. Accordingly, for this court to have jurisdiction over these claims, plaintiffs must plead a proper statute that waives the sovereign immunity. See Williams v. United States, 405 F.2d 951, 954 (9th Cir.1969) (“If facts giving the court jurisdiction are set forth in the complaint, the provision conferring jurisdiction need not be specifically pleaded”) (citation omitted).

As for legal theories of relief, plaintiffs’ complaint is difficult to decipher. The complaint refers to the First, Fifth and the Fourteenth Amendment. The court construes plaintiffs’ invocation of these amendments as asserting claims for relief under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for deprivation of their constitutional rights under color of federal law. But even so construed, plaintiffs’ constitutional claim must fail: A Bivens action does not lie against federal agencies or the United States, which possess sovereign immunity; such actions may be brought only against named federal officers or agents in their personal capacity. See FDIC v. Meyer, 510 U.S. 471, 483-86, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Plaintiffs sue state and federal officials in their official capacities, in violation of the sovereign immunity of California and the United States. As sovereign immunity is “jurisdictional in nature,” id at 475, 114 S.Ct. 996, the court lacks jurisdiction over plaintiffs’ constitutional claim against federal and state officials.

B

Next, the court addresses municipal defendants’ contention that claims brought by MDMCR should be dismissed because MDMCR is a corporation represented by laypersons. Doc #24 at 4-5. Although 28 USC § 1654 permits “parties to plead their cases personally,” it does not extend to non-individuals. Eagle Associates v. Bank of Montreal, 926 F.2d 1305, 1307 (2d Cir.1991). Hence, a corporation must appear in court through an attorney; it cannot be represented by laypersons. In re America West Airlines, 40 F.3d 1058, 1059 (9th Cir.1994) (“Corporations and other unincorporated associations must appear in court through an attorney.”); Church of the New Testament v. United States, 783 F.2d 771, 773 (9th Cir.1986) (citing In re Highley, 459 F.2d 554, 555 (9th Cir.1972)).

Plaintiffs concede that MDMCR is a “religious non profit corporation of the State of California,” Doc #1 at 3, and is not represented by counsel. Doc # 45. Moreover, in their opposition, plaintiffs express an unwillingness to obtain counsel for MDMCR. Id at 7. Accordingly, the court dismisses with prejudice all claims brought by MDMCR.

C

The court turns to defendants’ contention that plaintiffs lack standing. The constitutional aspect of standing centers on whether plaintiffs have made out a “case or controversy” within the meaning of Article III of the Constitution. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 348 (1975). To establish standing under Article III, a plaintiff must satisfy three elements: (1) “the plaintiff must have suffered an injury in facti—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical,” (2) “there must be a causal connection between the injury and the conduct complained of’ and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id at 560-61 (internal quotation marks, citations and footnote omitted). If plaintiffs seek prospective injunctive relief, as here, they must demonstrate a “real and immediate threat” of future injury in order to satisfy the “injury in fact” requirement. Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1241 (11th Cir.2003); City of Los Angeles v. Lyons, 461 U.S. 95, 103-104, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).

Defendants argue that plaintiffs, except Linda Sentí, lack standing to bring suit because Sentí (and her husband) are the sole owners of the real property and none of the other plaintiffs has any legal interest in the subject property. Doc # 24 at 5. Defendants cite Santos v. County of Los Angeles Dept. of Children and Family Services, 299 F.Supp.2d 1070, 1079 (C.D.Cal.2004), for the proposition that standing requires an established legal interest in property in order to challenge a search and seizure. Id. But this argument misses the mark. Plaintiffs assert a violation of the First Amendment, not the Fourth Amendment; hence, the special standing requirements from Santos are in-apposite. See Doc # 1, ¶ 24 (claiming that the attacks on the property occurred in “violation of the First Amendment’s recognition of our right to establish and exercise our religion”).

Because this is a motion to dismiss, all material allegations in the complaint must be taken as true and construed in the light most favorable to plaintiffs. See In re Silicon Graphics Inc. Sec Litig., 183 F.3d 970, 980 n. 10 (9th Cir1999). Plaintiffs plead a recognized injury—violation of their right to establish and exercise a religion. And this right does not cease at one’s property line. That plaintiffs lack legal title to the property where they practice their religion does not preclude them from having standing to allege violations of the First Amendment.

D

Defendants also argue that plaintiffs’ suit is unripe because the existence of the dispute between the parties hangs on future contingencies that may or may not occur. See Doc # 21 at 6. In view of the protracted dispute between the parties, the court disagrees. The allegations in the complaint, if construed in the light most favorable to plaintiffs, suggest it is unlikely that defendants will cease from confiscating plaintiffs’ marijuana. Defendants have searched the subject property and seized marijuana and other materials on three different occasions. In addition, plaintiffs assert they intend to continue growing marijuana as part of their religious practice. Plaintiffs’ claims are thus ripe for review.

E

Finally, defendants assert that res judicata precludes plaintiffs’ suit. Res judicata “bars re-litigation of all grounds of recovery that were asserted, or could have been asserted, in a previous action between the parties, where the previous action was resolved on the merits.” Tahoe Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1078 (9th Cir.2003). “It is immaterial whether the claims asserted subsequent to the judgment were actually pursued in the action that led to the judgment; rather the relevant inquiry is whether they could have been brought.” Id.

But res judicata’s preclusive force is extinguished by an intervening change in the law. See Clifton v. Attorney General of State Of California, 997 F.2d 660, 663 (9th Cir.1993) (citing State Farm v. Duel, 324 U.S. 154, 162, 65 S.Ct. 573, 89 L.Ed. 812 (1945)). That exception applies here. For reasons discussed infra, the Supreme Court’s decision in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 1217, 163 L.Ed.2d 1017 (2006), shifted the legal terrain surrounding plaintiffs’ suit, thereby warranting reexamination of the grounds for relief raised in plaintiffs’ previous petition. Accordingly, the intervening change triggered by the O Centro decision is sufficient to invoke the exception to res judica-ta recognized in Clifton.

Ill

Having dealt with the procedural defects asserted by defendants, the court turns to the merits of plaintiffs’ arguments. The following claims remain: (1) the RLUIPA claim against all defendants, (2) the First Amendment claim against municipal defendants and (3) the RFRA claim against federal defendants. Defendants argue that these claims merit dismissal because they are not premised on a cognizable legal theory. For reasons discussed below, the court dismisses all three claims, but grants plaintiffs leave to amend their RFRA claim against federal defendants.

A

Plaintiffs’ claim under the Religious Land Use and Institutional Persons Act of 2000 (RLUIPA), 42 USC § 2000cc, warrants dismissal because it does not apply to the present situation. RLUIPA’s general rule applies if a “land use regulation,” or the government’s application of a land use regulation, “substantially burdens a religious adherent’s religious exercise in a way not representing the least restrictive means of accomplishing a compelling government interest.” San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1036 (9th Cir.2004). RLUIPA specifically defines a “land use regulation” as:

“[A] zoning or landmarking law, or the application of such law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), and if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.”

42 USC § 2000cc-5(5).

Under this definition, a government agency implements a “land use regulation” when it acts pursuant to a “zoning or landmarking law.” Prater v. City of Burnside, 289 F.3d 417, 434 (6th Cir.2002).

Here, plaintiffs challenge the enforcement of the CSA, which does not constitute a zoning or landmarking law.' Accordingly, RLUIPA does not apply to the case at bar and this claim is dismissed.

B

Next, the court addresses plaintiffs’ First Amendment claim against municipal defendants. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” US Const amend I. As interpreted by the Supreme Court, the Free Exercise Clause of the First Amendment does not prohibit the government from burdening religious practices through generally applicable laws. Employment Division v. Smith, 494 U.S. 872, 890, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In Smith, defendant was a member of the Native American church who ingested peyote for sacramental purposes at a church ceremony. As a result, defendant’s employer, a private drug rehabilitation organization, fired him. When defendant applied for unemployment compensation, the state agency denied his application because a state statute disqualified individuals who had been fired for work-related “misconduct.” Id at 874, 110 S.Ct. 1595. Defendant sued, arguing that the denial of unemployment compensation burdened his First Amendment right to exercise his religion freely. The Court rejected defendant’s argument and held that neutral, generally applicable laws may be applied to religious practices, even when not supported by a compelling government interest. 494 U.S. at 884-85, 110 S.Ct. 1595.

The parallels of Smith to this case are striking. Like the defendant in Smith, plaintiffs use a controlled substance in the practice of their religion, and the government proscribes such use through neutral, generally applicable laws. Under Smith, then, the government may constitutionally punish plaintiffs, even if doing so. substantially burdens their ability to practice their religion. Accordingly, plaintiffs’ First Amendment claim is dismissed.

C

Finally, the court addresses plaintiffs’ claim that the federal government’s enforcement of the CSA violates the Religious Freedom Restoration Act (RFRA). The RFRA arises out of a fascinating interplay between Congress- and the Supreme Court, beginning with the Smith case. See Smith, 494 U.S. at 890, 110 S.Ct. 1595. As mentioned above, the Court in Smith rejected a challenge to an Oregon statute that denied unemployment benefits to drug users, including Native Americans engaged in the sacramental use of peyote. In so doing, the Court held that the Free Exercise Clause of the First Amendment does not prohibit the government from burdening religious practices through generally applicable laws. Id. The Smith decision overturned the Court’s prior interpretation of the Free Exercise Clause, as articulated in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), which required courts to inquire whether a statutory or regulatory prohibition “substantially burdened a religious practice and, if it did, whether the burden was justified by a compelling government interest.” City of Boerne v. Flores, 521 U.S. 507, 513, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).

Congress responded to the Smith decision by enacting the RFRA for the express purpose of restoring the Sherbert Free Exercise test. See 42 USC § 2000bb(b)(l); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 1217, 163 L.Ed.2d 1017 (2006). Under the RFRA, the government may not, as a statutory matter, substantially burden a person’s exercise of religion, “even if the burden results from a rule of general applicability.” 42 USC § 2000bb-(l)(a). The only exception recognized by the statute requires the government to satisfy the compelling interest test: to “demonstrative] that the application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Id, § 2000bb-l(b).

The RFRA’s judicial relief provision is couched in exceptionally broad terms: “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” Id § 2000bb-l(e). In its definition section, the RFRA provides that “[t]he term ‘government’ includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” Id § 2000bb-2(l).

As originally enacted, the RFRA applied to states as well as the federal government. But the Supreme Court ruled in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), that Congress lacks the constitutional authority under § 5 of the 14th Amendment to enforce the RFRA against the states. 521 U.S. at 536, 117 S.Ct. 2157. This decision did not, however, affect Congress’s power to enforce the RFRA against the federal government. Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1120 (9th Cir.2000) (“We have held, along with most other courts, that the Supreme Court invalidated RFRA only as applied to state and local governments”). See also Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 167 (D.C.Cir.2003). The ironic upshot of the City of Boeme decision is that it precluded the RFRA’s application to the very situation the Act was intended to remedy: the Smith decision, after all, concerned a state statute (the federal government has exempted the use of peyote for Native Americans churches since the CSA’s enactment). See 21 CFR § 1307(31) (2005).

Notwithstanding this turn of events, the RFRA remains on the books. Indeed, the Supreme Court recently clarified the RFRA’s effect in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006), in which the Court upheld an injunction barring the government’s enforcement of the CSA against a religious group’s sacramental use of hoasca, a hallucinogenic tea. In O Centro, the government argued that the CSA precludes any consideration of individualized exceptions because to do so would undermine the entire regulatory regime. Id. at 1220. The Supreme Court rejected this argument, asserting it was “fatally undermine^]” by the example of the government’s regulatory exemption for use of peyote—a Schedule I substance—by the Native American church. See 21 CFR § 1307(31) (2005). The Court instead endorsed a “case-by-case consideration of religious exemptions to generally applicable rules.” Id at 1223.

Due to the case-by-case inquiry mandated by the O Centro decision, the RFRA forces courts into the awkward position of assessing the sincerity of a group’s religious beliefs and then carving out exceptions to federal statutes in order to accommodate these beliefs. See O Centro, 126 S Ct at 1222 (concluding that the RFRA contemplates “judicially crafted exceptions” to federal laws). Moreover, the stringent standard provided by the RFRA suggests that in delegating to the judicial branch the job of ensuring that federal law accommodates religion, Congress underestimated both the diversity of America’s religious practices and the resourcefulness of its practitioners (and their attorneys). The present case thus serves as a prelude to the litigation to come.

Reservations aside, the court accepts, as it must, Congress’s charge under the RFRA and turns to plaintiffs’ claim. To establish a prima facie claim of a RFRA violation, plaintiffs must demonstrate that the federal government’s enforcement of the CSA works a substantial burden on their ability to practice their religion freely. Guerrero, 290 F.3d at 1222; see also United States v. Israel, 317 F.3d 768, 771 (7th Cir.2003) (“[U]nder RFRA, a plaintiff establishes a prima facie violation if he can demonstrate that the government’s action was a(l) substantial burden on a(2) sincere (3) exercise of religion.”). If a prima facie case is established, the burden shifts to the government to satisfy the RFRA’s compelling interest test. Id, § 2000bb-l(b).

Plaintiffs allege that to exercise their religion, they must possess and consume marijuana as mandated by their sincere religious beliefs in the Rastafari faith. Doc # 1, ¶ 17(b). In particular, plaintiffs allege that marijuana plays a central role in three sacraments. First, members of MDMCR receive communion by consuming wafers containing marijuana extract. Id, ¶ 17(b)(4). Second, in the “sacrament of the incense,” church leaders apparently burn marijuana so that church members may “inhal[e] from the Alter of the Incense.” Id, ¶ 17(b)(5). Third, marijuana is used in anointing oil, a ritual allegedly performed by Moses.

Moses wrote that we can make an anointing oil to anoint sons to be priests. The ingredients include 16 ounces of marijuana extracted into a quart of oil. This was applied by pouring over the uncut dreadlocks of the young Nazarene “Sampson” who came for his anointing. In Psalms it says, poured over the head until it falls from the edge of the beard onto the skirt of the garmet. This child was stoned for a week.

Id, ¶ 18(b). As the Ninth Circuit has already acknowledged, “Rastafarianism is a legitimate religion, in which marijuana plays a necessary and central role.” Guerrero, 290 F.3d at 1213 (citing United States v. Bauer, 84 F.3d 1549, 1556 (9th Cir.1996)). Defendants allege that plaintiffs are not sincere Rastafarians, but plainly it is inappropriate to question the sincerity of plaintiffs’ religious beliefs in a Rule 12(b)(6) motion.

To determine whether enforcement of the CSA imposes a substantial burden, the court finds instructive the pre-Smith case law applying this standard. Looking to that body of precedent, a statute burdens the free exercise of religion if it “puts substantial pressure on an adherent to modify his behavior and to violate his beliefs,” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), including when, if enforced, it “results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.” Braunfeld v. Brown, 366 U.S. 599, 605, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). A substantial burden must be more than an “inconvenience.” Worldwide Church, 227 F.3d at 1121.

The existence of a substantial burden on religious exercise also' hinges on the scope of the asserted religious exemption. For example, in United States v. Bauer, 84 F.3d 1549 (9th Cir.1996), the Ninth Circuit concluded that the RFRA may preclude prosecution against a group of Rastifarian defendants for simple possession of marijuana, but “[a]s to the counts relating to conspiracy to distribute, possession with intent to distribute, and money laundering, the religious freedom of the defendants was not invaded” because “[n]othing before [the court] suggested] that Rastafarianism would require this conduct.” 84 F.3d at 1559. Likewise, in Guam v. Guerrero, 290 F.3d 1210 (9th Cir.2002), the Ninth Circuit held that the RFRA provides no defense to a defendant who was prosecuted for importation of marijuana, reasoning that “Rastafarianism does not require importation of a controlled substance, which increases the availability of controlled substances and makes it harder for Guam to control.” Id at 1223 (emphasis in original). Hence, the court concluded that defendant’s right to exercise his religion freely was not substantially burdened because the scope of defendant’s conduct exceeded the religious justification he proffered.

The analysis in Bauer and Guerrero sheds light on the issues in the present action. Here, plaintiffs allege that the United States, via the enforcement of the Controlled Substance Act (CSA), 21 USC § 841, substantially burdens the exercise of their religion. Yet the court -cannot understand why plaintiffs require an unconditional injunction in order to partake of the various marijuana-related sacraments described in their complaint. See Doc # 1, ¶ 56(c) (asking the court to “enjoin[ ] defendants from enforcing the CSA against plaintiffs to prohibit [plaintiffs] growing and use of marijuana on the MDMCR and member properties”).

In a similar vein, plaintiffs’ asserted religious practices bear little relation to the scope of marijuana production and distribution acknowledged in their complaint. This disparity troubled Judge Patel in plaintiffs’ forfeiture proceedings. In response to plaintiffs’ argument, Judge Patel did not mince words:

That many thousand plants? We’re not talking religion; we are not talking sacrament; we are talking about big-time marijuana.

Doc # 57 at 10:11-13

In his dissent in the Smith case, Justice Blackmun drew a useful comparison between Native American use of peyote and the sacramental use of wine by Christians, noting that during Prohibition, the federal government exempted such use of wine from its general ban on possession and use of alcohol. Smith, 494 U.S. at 915 n. 6, 110 S.Ct. 1595 (citing National Prohibition Act, Title II, § 3, 41 Stat 308). To Justice Blackmun, the comparison was appropriate because defendants’ use of peyote was “carefully circumscribed [within the] ritual context,” in contradistinction to “the irresponsible and unrestricted recreational use of unlawful drugs.” Id at 914-15, 110 S.Ct. 1595.

Here, portions of plaintiffs’ complaint describe limited ceremonial practices akin to Native American use of peyote and the sacramental use of wine by Christians. But other parts of the complaint suggest plaintiffs’ activities amount to the “unrestricted recreational use of unlawful drugs.” See Smith, 494 U.S. at 915, 110 S.Ct. 1595. In particular, plaintiffs acknowledge extensive marijuana production and distribution and seek an unconditional injunction against government intervention. Nothing before the court explains why the asserted sacraments of the Rasta-fari faith require complete immunity from the federal government’s drug laws. Accordingly, the scope of relief sought in plaintiffs’ complaint is fatal to their prima facie case under the RFRA.

Because plaintiffs have not sufficiently pled a prima facie case under RFRA, the court declines to assess whether the RFRA’s exemption applies, i e, whether the government’s enforcement of the CSA against plaintiffs furthers a compelling governmental interest and is the least restrictive means of doing so. See 42 USC § 2000bb-l(b). The court may return to this issue and have to grapple with the perplexities Congress’s enactment of the RFRA has created if plaintiffs amend their RFRA claim and make out a prima facie case.

B

Having dismissed plaintiffs’ federal claims, the court addresses plaintiffs’ California state law claim. 28 USC § 1367(c)(3) provides that “[t]he district courts may decline to exercise supplemental jurisdiction over a [supplemental] claim * * * [if] the district court has dismissed all claims over which it has original jurisdiction.” The Ninth Circuit has held that these provisions give federal courts discretion either to retain or to dismiss a case after all federal claims have been dismissed. Albingia Versicherungs AG v. Schenker Int’l, 344 F.3d 931, 937-38 (9th Cir2003). When determining whether to retain supplemental jurisdiction, the court is guided by the values “of economy, convenience, fairness, and comity.” Acri v. Varian Assocs., 114 F.3d 999, 1001 (9th Cir.1997) (en banc) (quoting Allen v. City of Los Angeles, 92 F.3d 842, 846 (9th Cir.1996)) (internal quotation marks omitted). Nonetheless, “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors * * * will point toward declining to exercise jurisdiction over the remaining state-law claims.” Executive Software N Am. v. United States Dist. Court, 24 F.3d 1545, 1553 n. 4 (9th Cir1994) (emphasis omitted) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)) (internal quotation marks omitted).

If plaintiffs decline to amend their complaint, then dismissing plaintiffs’ state claim would be the most appropriate course of action. Exercising supplemental jurisdiction would neither promote judicial economy nor convenience to the parties because the case is still in its early stages. And aside from defendants’ current motions to dismiss, the court has yet to consider any dispositive motions in this case. Accordingly, pursuant to 28 USC § 1367(c) (3), the court DECLINES to exercise supplemental jurisdiction over plaintiffs’ state law claim. Plaintiffs are, of course, free to refile this claim in state court, subject to the tolling provisions of 28 USC § 1367(d).

IV

In sum, the court GRANTS defendants’ motions to dismiss plaintiffs’ federal claims under FRCP 12(b)(6); dismissal of all claims by MDMCR and dismissal of all claims by the remaining plaintiffs except the claims pursuant to the RFRA are with prejudice. Pursuant to 28 USC § 1367(c)(3), the court DECLINES to exercise supplemental jurisdiction over the remaining state-law claim. The court GRANTS all plaintiffs except MDMCR leave to file an amended complaint alleging a claim under the RFRA against federal defendants by March 20, 2007.

IT IS SO ORDERED.  