United States District Court, W.D. Virginia, Roanoke Division
RICHARD C. WELCH, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
K. MOOV UNITED STATES DISTRICT JUDGE
C. Welch, a federal inmate proceeding pro se, filed
a “Complaint for Declaratory Judgment, ” paid a
$350 filing fee and $50 administrative fee, and served this
action on the United States. This matter is before me on the
government's motion to dismiss and Welch's response
thereto. Having considered the record, I will grant the
government's motion to dismiss.
pleading, Welch challenges the classification of marijuana as
a Schedule I controlled substance as a violation of his due
process rights. Welch asks me to declare that the controlled
substance schedules in 21 U.S.C. § 812 and 21 C.F.R.
§§ 1308.11(d)(23), (d)(31), are void as they relate
to marijuana. Welch alleges that “[b]y virtue of its
long-standing status in the [Homeopathic Pharmacopeia of the
United Sates], ” marijuana is “well-known to be
medically-safe and sound for administration to a human being
. . . .” and, thus, “could never have been
lawfully placed on Schedule I, either in the [Controlled
Substance Act] or in the restatement by the Attorney General
that is in effect today.” Welch also states that he
“has been made to suffer loss of property and other
rights by way of this wrongful enactment.”
is currently incarcerated in the Western District of
Virginia. In 2012, after Welch pled guilty, this court
convicted him of conspiring to manufacture more than 100
marijuana plants, in violation of 21 U.S.C. §§
841(b)(1)(B) and 846, and sentenced him to 150 months of
incarceration. United States v. Welch, Criminal
Case No. 7:11cr00072-1 (W.D. Va. Aug. 15, 2012). Welch filed
a motion to vacate, set aside, or correct sentence pursuant
to 28 U.S.C. § 2255, challenging the validity of his
guilty plea. Id. at Docket No. 69. The court denied
the § 2255 motion and the United States Court of Appeals
for the Fourth Circuit dismissed his appeal. Id. at
Docket Nos. 80, 81, and 86. Thereafter, Welch filed a direct
appeal of his criminal conviction, which the Fourth Circuit
dismissed. United States v. Welch, No. 14-4247 (4th
Cir. July 21, 2014).
2016, Welch filed a “Motion for Declaratory Judgment
and Conditional Motion to Vacate Criminal Judgment and
Conviction, ” asking the court to vacate his criminal
judgment on the basis that possession of marijuana should not
be a crime because marijuana “was actually a lawful
medicinal drug.” See United States v. Welch,
Criminal Case No. 7:11cr00072-1, Docket Nos. 106-108 (W.D.
Va. Aug. 3, 2016). The court construed and dismissed the
pleading as an unauthorized, successive § 2255 motion.
Id. at 109, 110.
government argues that Welch's instant pleading should be
construed and dismissed as a successive § 2255 motion.
However, Welch does not directly attack his criminal
conviction or sentence and he does not ask to be released
from incarceration early. Rather, he seeks a declaration that
various laws are void. In his response to the government's
motion to dismiss, Welch states that he is not attempting to
file a second or successive § 2255 motion and that,
“[a]t some point in the relatively near future, [he]
will be set free[, and he] would certainly face impending
injury again as a result of cannabis/marijuana
activity.” He further states that how he “uses
the declaratory judgment for another remedy in the future is
not within the four corners of the instant pleading.”
extent Welch may be challenging his current conviction, I
will construe his pleading as a § 2255 motion and grant
the government's motion to dismiss it as an unauthorized,
successive motion because he has already filed a § 2255
motion concerning the same criminal conviction, there are no
new facts upon which Welch is relying, and he has not
demonstrated that he has received permission from the Fourth
Circuit to file a successive motion. See §
extent Welch is trying to bring this action to challenge any
future “injury” he may suffer “as a result
of” his anticipated, future “cannabis/marijuana
activity, ” I conclude that Welch lacks standing and,
therefore, will grant the government's motion to dismiss.
III of the United States Constitution limits the role of
federal courts to the decision of cases and controversies.
U.S. Const. art. III, § 2. “[T]he doctrine of
standing has always been an essential component” of the
case or controversy requirement. Marshall v.
Meadows, 105 F.3d 904, 906 (4th Cir. 1997) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)). To demonstrate standing, a plaintiff must establish
that: 1) he has suffered an “injury in fact, ”
meaning an injury that is “concrete and
particularized” and “actual or imminent”;
2) a causal connection between the injury and conduct
complained of, meaning that the injury is fairly traceable to
the defendant's actions; and 3) a likelihood that the
injury will be redressed by a favorable decision from the
court. Lujan, 504 U.S. at 560-61; Chambers Med.
Techs. of S.C., Inc. v. Bryant, 52 F.3d 1252, 1265 (4th
Cir. 1995). “The standing doctrine  depends not upon
the merits, but on whether the plaintiff is the proper party
to bring the suit.” White Tail Park, Inc. v.
Stroube, 413 F.3d 451, 460-61 (4th Cir. 2005) (citations
and quotations omitted).
regard to the injury requirement, the Supreme Court has made
clear that it is not necessary that a person expose himself
to arrest or prosecution under a statute in order to
challenge that statute in federal court. See Babbitt v.
United Farm Workers Nat'l Union, 442 U.S. 289, 298
(1979); Steffel v. Thompson, 415 U.S. 452, 458-60
(1974); Navegar, Inc. v. United States, 103 F.3d
994, 998 (D.C. Cir. 1997). Rather, a credible threat of
present or future prosecution under a criminal statute itself
works an injury that is sufficient to confer standing to
mount a pre-enforcement challenge to that statute. N.C.
Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th
Cir. 1999). The plaintiff must show that the regulation
presents a credible threat of enforcement against the party
bringing suit that is not “imaginary or wholly
speculative.” Babbitt, 442 U.S. at 302. Fears
of enforcement that are “imaginary or wholly
speculative” are insufficient to confer standing.
alleges that, “[a]t some point in the relatively near
future, ” he “will be set free, ” and he
“would certainly face impending injury again as a
result of cannabis/marijuana activity.” According to
the Bureau of Prison's inmate locator, Welch is scheduled
to be released on August 9, 2021. See Federal Bureau
of Prisons, Find an Inmate,
https://www.bop.gov/inmateloc (last visited August
30, 2017). Welch has not demonstrated that he is subject to
an actual or imminent threat of injury. He will be
incarcerated for approximately four more years and it is
wholly speculative that Welch will engage in
“marijuana/cannabis activity” after his release
from incarceration and that this anticipated future conduct
will be criminal ...