United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED
COMPLAINT (DOC. 61)
Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE.
Michael Anthony Todd, a state prisoner proceeding pro
se and in forma pauperis, filed this civil
rights action pursuant to 42 U.S.C. § 1983 on June 21,
2012. This action currently proceeds on Plaintiff's First
Amendment, Establishment Clause and equal protection claims
against Defendants Albitre, Smith-Robicheaux (sued as
“Smith”), Indermill, Mayo, Mussellman, Ruiz and
Rabbi Carron as set forth in the second amended complaint.
Plaintiff's allegations concern the asserted denial of
his rights arising out of his membership in, and practice of,
Creativity as a religion.
March 26, 2013, the Court screened Plaintiff's first
amended complaint, and recommended dismissal of
Plaintiff's claim regarding rejection of incoming mail
without prejudice and dismissal of Plaintiff's remaining
claims with prejudice for failure to state a claim upon which
relief could be granted. (Doc. 15.) On April 9, 2013, the
District Court adopted the recommendations, and dismissed
Plaintiff's claim regarding rejection of incoming mail
without prejudice to re-filing in a separate, new action and
dismissed all of Plaintiff's remaining claims with
prejudice for failure to state a claim upon which relief may
be granted. (Doc. 17.) Plaintiff appealed the dismissal.
August 27, 2015, the United States Court of Appeals for the
Ninth Circuit (“Ninth Circuit”) affirmed in part,
reversed in part and remanded the action to this Court.
Specifically, the Ninth Circuit determined that the Court
prematurely dismissed Plaintiff's First Amendment,
Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), Establishment Clause and equal
protection claims because Plaintiff's allegations,
liberally construed, were sufficient to warrant ordering
defendants to file an answer. However, the Ninth Circuit
explicitly stated that it expressed no opinion as to whether
Creativity constituted a religion. (Doc. 25.) The mandate
issued on September 21, 2015. (Doc. 26.)
issuance of the mandate and remand, this Court vacated the
entry of judgment, reopened the action and directed Plaintiff
to return service documents for eight defendants. On December
4, 2015, the Court directed the United States Marshal to
serve these defendants. However, the Court subsequently
vacated the service order pending rescreening of the First
Amended Complaint. Upon rescreening, the Court issued
Findings and Recommendations on January 7, 2016, that the
action should proceed on Plaintiff's First Amendment,
RLUIPA, Establishment Clause and equal protection claims
against Defendants Albitre, Smith, Indermill, Mayo,
Mussellman, Ruiz and Rabbi John Doe. (Doc. 39.)
pendency of the Findings and Recommendations, Plaintiff moved
for leave to file a second amended complaint. (Doc. 40.) On
February 24, 2016, the Court granted the motion for leave to
amend, vacated the January 7, 2016 Findings and
Recommendations and filed Plaintiff's second amended
complaint. (Docs. 42, 43.)
Court screened the second amended complaint, and on March 21,
2016, the District Court ordered that this action proceed on
Plaintiff's First Amendment, Establishment Clause and
equal protection claims against Defendants Albitre, Smith,
Indermill, Mayo, Mussellman, Ruiz and Rabbi Carron and
dismissed Defendants CDCR and CSP from this action. (Doc.
20, 2016, following service of the second amended complaint,
Defendants Smith-Robicheaux, Ruiz, Mayo and Musselman filed
an answer. (Doc. 51.)
28, 2016, Defendants Indermill, Albitre and Carron, who are
represented by separate counsel, filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) on the
grounds that they are entitled to qualified immunity.
Defendants Indermill, Albitre and Carron argue, in part, that
they are entitled to qualified immunity on the ground that
there is no clearly established law in the Ninth Circuit
recognizing Creativity as rooted in religious beliefs. (Doc.
61.) Plaintiff opposed the motion on August 11, 2016, and
Defendants replied on August 18, 2016. (Docs. 62, 64.)
motion is deemed submitted. Local Rule 230(1).
Relevant Allegations in Second Amended Complaint
is currently housed at California State Prison, Sacramento.
However, the events in the second amended complaint are
alleged to have occurred while Plaintiff was housed at
California State Prison, Corcoran.
alleges that he is both a member and minister of the
“Ecclesia Creatoris” religious organization,
which promotes the Creativity religion. Plaintiff asserts
that he “sincerely believes in the tenets of Creativity
and holds Creativity to be his religion.” (Doc. 43, p.
4.) Upon becoming a member, Plaintiff pledged not only
“undying loyalty to the White Race, ” but also to
“promote the best interests of the While Race.”
(Id. at pp. 4-5.) Plaintiff has been teaching the
tenets of Creativity to other inmates for fourteen years.
of Religious Material
January 24, 2011, Defendants Mayo and Mussellman searched
Plaintiff's cell because they, and Defendant Ruiz,
noticed flyers taped to the wall of the cell. The flyers were
seized and Defendant Ruiz confiscated the material as
gang-related, noting the racist nature of the materials.
Plaintiff asserted to Defendant Ruiz that the flyers were
religious in nature and did not advocate violence or illegal
behavior. However, Defendant Ruiz became belligerent and
refused to give Plaintiff a receipt for the confiscated
same date, Plaintiff filed an inmate appeal relating to
Defendant Ruiz's confiscation of his religious material.
The appeal was returned with instructions to provide a
description of the confiscated material. Plaintiff
resubmitted the appeal. He contends that during adjudication
of the appeal, Defendant Ruiz provided falsified information
and interfered with the appeal process. The appeal was not
processed at the Third Level because the time limits had
alleges that Creativity requires a fruitarian diet, which
consists of raw organic whole food (fruits, vegetables, nuts
and some grains), along with clean, pure, unpolluted water
(or filtered or distilled water as a last resort) or
freshly-squeezed juice from organic fruits and vegetables.
Plaintiff contends that Defendants have denied him the
ability to practice this diet, informing him that it is not
offered by CSP-Corcoran and is not a CDCR-approved religious
diet. Although Defendants have offered to place him on a
vegetarian diet or the Halal diet, these diets do not meet
his dietary needs. Defendants also have refused to place
Plaintiff on the Kosher diet because it is only available ...