Gallagher v. DEA

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
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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.
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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.
4