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26 ORDER DENYING MOTION TO AMEND 

COMPLAINT; ORDER OF DISMISSAL - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MICHAEL ADAM ASSENBERG, 

Plaintiff,

v.

THERESA McCULLUM, et al., 

Defendants.

Case No. C06-987RSL

ORDER DENYING MOTION 

TO AMEND COMPLAINT; 

ORDER OF DISMISSAL

This matter comes before the Court on plaintiff’s motion to amend his complaint

(Dkt. #11) and on the Court’s order to show cause (Dkt. #5, the “Order”). Plaintiff

Michael Assenberg, who is proceeding pro se, has filed his complaint against Theresa

McCullum, the Executive Director of the Anacortes Housing Authority (“AHA”); the

State of Washington; the United States Department of Justice (the “DOJ”); the Food and

Drug Administration (the “FDA”); and “Washington State HUD.” On August 1, 2006,

the Court issued the Order identifying numerous deficiencies in plaintiff’s complaint and

ordering him to file an amended complaint within 30 days or face dismissal. Plaintiff

subsequently filed a motion to recuse and a motion to appoint counsel. Those motions

were denied. The Court now considers its order to show cause and plaintiff’s motion to

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1

 The Court has also considered plaintiff’s “answer to the court” and plaintiff’s

“amended info for the Court to take notice.” 

2

 McCullum has filed a “Memorandum in Support of Court’s Order to Show

Cause” in which she requests that the Court exercise supplemental jurisdiction over the

state law claims against her and dismiss them with prejudice. The Court declines to do so

because McCullum did not file her request as a motion and plaintiff did not have an

opportunity to respond to it. 

ORDER DENYING MOTION TO AMEND 

COMPLAINT; ORDER OF DISMISSAL - 2

amend his complaint.1

Leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P.

15(a). The Court should consider four factors in deciding whether to grant leave to

amend: “bad faith, undue delay, prejudice to the opposing party, and the futility of

amendment.” Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994). A proposed

amendment is futile if it could be defeated by a motion to dismiss or if plaintiff cannot

prevail on the merits. See, e.g., Smith v. Commanding Officer, 555 F.2d 234, 235 (9th

Cir. 1977). 

In this case, amendment would be futile because the proposed amended complaint

does not cure the deficiencies previously identified by the Court. Plaintiff continues to

assert claims that he brought, and the Court dismissed, in his prior lawsuit. Assenberg v.

Anacortes Housing Authority, C05-1836 (W.D. Wash. 2005) (“Assenberg I”). Plaintiff’s

allegations of constitutional violations are based on his assertion that the state’s medical

marijuana law grants him an unfettered right to use marijuana in federally subsidized

housing; the Court rejected that claim in Assenberg I. Plaintiff is barred from relitigating

those issues and claims. 

The Order also noted that plaintiff had not shown a basis for this Court’s

jurisdiction over his purely state law claims against Theresa McCullum.2

 Plaintiff’s

amended complaint does not assert any federal claims against her. In the Order, the

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26 ORDER DENYING MOTION TO AMEND 

COMPLAINT; ORDER OF DISMISSAL - 3

Court also explained that “[p]laintiff’s allegation of sex discrimination appears based on

the conduct of third parties, not of Ms. McCullum.” In response, the amended complaint

states that McCullum engaged in slander by informing AHA’s attorneys that plaintiff was

“born both genders.” Plaintiff, however, does not allege that the statement was false, and

he has included the information himself in public filings before this Court. 

Similarly, although the Order notified plaintiff that Washington state and its

agencies are immune from suit under the Eleventh Amendment, plaintiff does not allege

any basis for overcoming that immunity. The amended complaint also did not address the

Order’s statement that even if immunity did not apply, “Washington State HUD” does not

appear to exist as an entity. 

Plaintiff’s amended complaint contains new allegations against the DOJ based on

his mistaken belief that it employs this Court and “State Judge Meyers” (collectively, the

“judges”). Plaintiff alleges that the judges violated his due process rights as well as his

rights under the 4th, 8th, and 10th Amendments. Even if the DOJ employed the judges, it

is immune from suit for money damages under the doctrine of sovereign immunity. 

Plaintiff has not named the judges as defendants, and even if he had, they are entitled to

judicial immunity. See, e.g., Mirles v. Waco, 502 U.S. 9, 11-12 (1991) (explaining that

judges are absolutely immune from civil damages liability for acts performed in their

judicial capacities). 

Finally, plaintiff’s amended complaint alleges that the FDA’s recently released

statement on the lack of medicinal properties of marijuana is a “GROSS misuse of federal

power.” Amended Complaint at p. 2. Like the DOJ, however, sovereign immunity

protects the FDA from a suit for damages. Plaintiff has not asserted any basis for a

waiver of sovereign immunity in this case. Plaintiff also seeks injunctive relief “stopping

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26 ORDER DENYING MOTION TO AMEND 

COMPLAINT; ORDER OF DISMISSAL - 4

the FDA from allowing the Sick a right to access of Medication that works.” Amended

Complaint at p. 5. That request is apparently based on plaintiff’s allegation that the

“FDA is Violating their own guidelines when it comes to listing Marijuana as a Class I

drug.” Id. However, as the Court noted in the Order, marijuana is classified as a

Schedule I drug in the Controlled Substances Act, 21 U.S.C. § 812, and the FDA is not

responsible for its classification or for enforcement of the Act.

Although plaintiff’s amended complaint is fatally deficient, he is not without a

remedy. Plaintiff can pursue his allegations regarding this Court’s dismissal of

Assenberg I in his appeal currently pending before the Ninth Circuit Court of Appeals.

Accordingly, for all of the foregoing reasons, plaintiff’s motion to amend his

complaint (Dkt. #11) is DENIED and this action is DISMISSED.

DATED this 2nd day of October, 2006.

A

Robert S. Lasnik

United States District Judge

Case 2:06-cv-00987-RSL Document 25 Filed 10/02/06 Page 4 of 4