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A federal judge Thursday denied an Oakland County cancer patient’s request for a preliminary injunction in her lawsuit against the state over its medical marijuana restrictions.
U.S. District Judge Paul Borman’s decision means Sherry Hoover remains unable to obtain untested forms of edible medical marijuana, which fell under new, stricter rules as of April 1.
Hoover sued the state Department of Licensing and Regulatory Affairs last month over the new regulations for edible forms of medical marijuana.
In his 16-page opinion, Borman wrote Thursday: “Because plaintiff has no likelihood of success on the merits of her claims because the Defendant LARA is a state agency entitled to absolute Eleventh Amendment immunity, the Court must and does DENY the motion for preliminary injunctive relief.”
Borman told Hoover’s attorney hours before his ruling that her lawsuit did not belong in federal court because the state has “sovereign immunity” that protects it against such litigation. He will rule later on whether to dismiss the suit.
Hoover, a retired nurse, filed suit last month, argues that stricter regulations prevent her from getting the medical marijuana products she needs to help deal with her cancer.
Borman asked Hoover’s attorney, Michelle R.E. Donovan, why she didn’t file the lawsuit in a circuit court..
“The question is whether this court has jurisdiction,” said Borman. “Have you sought relief through Oakland County Circuit Court? That is the process.”
Donovan said the case should be heard in federal court because Hoover’s rights under the U.S. Constitution were violated by the state of Michigan because it no longer allows marijuana dispensaries to sell liquid and other forms of cannabis.
“This is a due process case. (The state of Michigan) is violating her 14th Amendment rights because she doesn’t have access to medical marijuana,” Donovan told Borman. “By denying my client access to medical marijuana, they are violating my client’s due process.”
Prior to April 1, LARA allowed marijuana products like edible and liquids such as tinctures and RSO (Rick Simpson Oil) to be sold at dispensaries without being tested. But new state regulations bar the sale of untested medical marijuana products.
Hoover said in a wheelchair next to Donovan as the attorney argued her case.
“It’s the access,” he said. “The patient should be able to walk into a dispensary and have access to medical marijuana. She has a (marijuana card).
The edible and liquid forms of medical marijuana are quicker-acting and longer-lasting than the cigarette form, said Hoover, who has been on various opioids including fentanyl, Norco and morphine.
Diagnosed in 2011 with mastocytosis leukemia, Hoover said the cannabis products alleviated her pain, increased her appetite and helped her sleep better.
“The opioids were making me sicker,” said Hoover, who has stage 4 mass cell leukemia. “All I have to do is to tell (the caregiver) how much pain I’m in and they can (tell) how much drops I need in my food and drinks.”
But assistant Michigan attorney general Erika Marzorati told the judge that Hoover’s lawsuit should be dismissed for several reasons, including the immunity the state of Michigan has from the federal lawsuits and because the purpose of the state regulations is to keep medical marijuana safe for public use.
Jerry Millen, the owner of Greenhouse dispensary in Walled Lake, attended Thursday’s hearing. Millen said “all (dispensary owners) are asking for is six months until the licensed market can produce their own products.”