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Michael Anthony Todd v. California Department of

March 26, 2013

MICHAEL ANTHONY TODD,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION ECF No. 13 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

I. Background

Plaintiff Michael Anthony Todd ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On June 21, 2012, Plaintiff filed his Complaint. ECF No. 1. On September 11, 2012, Plaintiff filed his First Amended Complaint, which is presently before the Court for screening. ECF No. 13.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." Id. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader 2 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 5

U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 6 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 7 allegations are accepted as true, legal conclusions are not. Id. 8

II. Summary of First Amended Complaint 9

Plaintiff is incarcerated at California State Prison-Corcoran ("CSP-Cor") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: CDCR; CSP-Cor; correctional lieutenant D. J. Ruiz; correctional officers Mayo, Mussellman, and D. Berna; correctional captain J. C. Smith; Chief Deputy Warden C. Gipson; Chief of Inmate Appeals

D. Foston; D. Jordan, mailroom employee at CSP-Cor; CSP-Cor appeals coordinators C. Barnett, T. Cano, and K. Cribbs; correctional captain M. Seitert; protestant chaplain R. Indermill; native American spiritual leader B. Albitre; community resources manager M. Smith; appeals examiner R. Davis; correctional captain K. Pool; chief of inmate appeals J. D. Lozano; deputy warden J. Cavazos; Jewish rabbi John Doe 1; and Does 2 through 10.

Plaintiff alleges the following. Plaintiff is a member of the Creativity religion, also known as Ecclesia Creatoris*fn1 , for over 12 years*fn2 , and has been an ordained minister of his church for a decade.*fn3

Plaintiff has written many articles pertaining to his Creativity religion, mentored, tutored, and 2 converted others, and created the Creativity Prison Ministries. 3

Practitioners of Creativity, known as Creators, also practice Salubrious Living, which

4 consists of a fruitarian diet of raw organic whole fruits, vegetables, and some grains, and clean, pure 5 water or freshly squeezed juice from organic fruits and vegetables. Creators study Creativity holy 6 books daily, observe Creator holy days, recite Creativity prayers, and obey the clergy of the 7

Creativity religion. 8

A. Confiscation of Creativity Material from Plaintiff's Cell

On January 24, 2011, Defendants Mayo and Mussellman performed an arbitrary and unreasonable search of Plaintiff's cell, removing flyers from Plaintiff's wall. The materials were given to Defendant D. J. Ruiz, who confiscated it as gang-related material and racist. Three of the flyers contained material concerning Creativity, and two other flyers contained messages advocated by Creativity, namely not doing drugs and keeping one's bloodline pure.

Plaintiff attempted to explain to Defendant Ruiz that the material was religious in nature, but Defendant Ruiz was hostile and belligerent, refusing to provide Plaintiff with a receipt for the materials.

B. Inmate Appeal Regarding Incident

On January 24, 2011, Plaintiff filed an inmate appeal regarding the above incident. The appeal was rejected with instructions on refilling. On February 26, 2011, Plaintiff re-filed the appeal. On March 22, 2011, Defendant D. Berna interviewed Plaintiff regarding the matter. Defendant D. Berna issued a denial response at the first level, which was reviewed by Defendant Ruiz, and approved by Defendant J. C. Smith. Defendant C. Gipson denied the appeal at the second level of review, finding that the material was gang-related. On May 25, 2011, Plaintiff submitted the material for third level review. The appeal was returned without explanation. Plaintiff then resubmitted the appeal directly by mail to the Inmate Appeals Branch of CDCR. On August 17, 2011, and September 15, 2011, Defendant Foston denied the appeal.

C. Rejection of Mail

On October 28, 2010 and November 5, 2010, Plaintiff received disallowal notices from the mail room, signed by Defendant D. Jordan and approved by Defendant M. Seifert. The reason 2 provided was that it was racist material. The rejected material was Masters of Ceremony, a picture 3 book of ceremonies held by the Nationalist Socialist Government of Germany, and Ecclesia 4

Creatoris Membership Manual, which described the organizational structure of the Ecclesia 5

Creatoris. 6

D. Inmate Appeal Regarding Rejections

7

Plaintiff filed inmate appeals on October 28, 2010 and November 7, 2010, complaining of 8 the denials. Defendant Jordan did not respond to Plaintiff's appeals. Plaintiff submitted a request 9 for interview with Defendant Jordan, who ignored it. Plaintiff submitted another appeal on November 21, 2010 regarding rejection of the material and refusal of the interview. On December 24, 2010, this appeal was rejected by Defendant T. Cano for failing to include the disallowal notices. Plaintiff resubmitted the appeal with an explanation that he did not possess the disallowal notices. This appeal was ignored.

On June 3, 2011, Plaintiff again submitted a new appeal, explaining the issue and how his previous appeals had disappeared. On June 17, 2011, Defendant C. Barnett rejected the appeal, instructing Plaintiff to attach copies of the rejected materials, and proof showing that the material had been rejected. Defendant also instructed Plaintiff to choose whether it was a staff complaint or a complaint regarding rejection of the material. Plaintiff chose staff complaint, and resubmitted the appeal with explanations on June 23, 2011. On July 20, 2011, Defendant Cribbs rejected the appeal because the disallowal notices were not attached. Plaintiff again resubmitted the appeal on August 18, 2011 with further explanation. On September 6, 2011, Defendant Cribbs rejected the appeal for Plaintiff failing to attempt to acquire copies of the ...


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