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Todd v. California Department of Corrections and Rehabilitation

United States District Court, E.D. California

September 1, 2017

MICHAEL ANTHONY TODD, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S MOTION FOR IMMEDIATE RECOGNITION OF CREATIVITY AS A RELIGION FOR FIRST AMENDMENT AND RLUIPA PURPOSES (ECF No. 66) FOURTEEN-DAY OBJECTION DEADLINE

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 Smith-Robicheaux (sued as “Smith”), Mayo, Mussellman, and Ruiz as set forth in the second amended complaint.[1] Plaintiff's allegations concern the asserted denial of his rights arising out of his membership in, and practice of, Creativity as a religion.

         Currently pending before this Court is Plaintiff's motion for immediate recognition of Creativity as a religion for First Amendment and Religious Land Use and Institutionalized Persons Act (“RLUIPA”) purposes, filed on August 22, 2016. (ECF No. 66.) Defendants Smith-Robicheaux, Mayo, Musselman and Ruiz opposed the motion on September 1, 2016. (ECF No. 67.) Plaintiff replied on September 19, 2016. (ECF No. 70.) The motion is deemed submitted on the papers. Local Rule 230(1).

         I. Jurisdiction Pending Appeal

         On August 7, 2017, the Court granted the motion to dismiss filed by Defendants Indermill, Albitre and Carron, based on a finding that they were entitled to qualified immunity. (ECF No. 79.) On August 28, 2017, Plaintiff filed a notice of appeal, and the matter was processed to the Ninth Circuit Court of Appeals on August 29, 2017. (ECF No. 81.) However, Plaintiff's challenge to the grant of qualified immunity is generally not independently appealable on an interlocutory basis. See Mathis v. Cty. of Lyon, 633 F.3d 877, 878 (9th Cir. 2011) (“Only the denial of qualified immunity is subject to interlocutory review, not the granting of qualified immunity.”); Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009) (“Generally, a challenge to the grant of qualified immunity is not independently interlocutory appealable.”) (quoting Krug v. Lutz, 329 F.3d 692, n. 2 (9th Cir. 2003)). The Court therefore retains jurisdiction over Plaintiff's pending motion for immediate recognition of Creativity as a religion.

         II. Relevant Allegations in Second Amended Complaint

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff alleges that Defendants Ruiz, Mayo, and Musselman violated his First Amendment rights by confiscating his religious property, and Defendants justified their actions by claiming that the documents seized were gang-related materials. (Id. at ¶¶ 22-31.) Plaintiff further alleges that Defendant Smith-Robicheaux denied him a diet that conforms to Creativity's “religious” tenets. (Id. at ¶ 42.)

         In his complaint, Plaintiff seeks declaratory relief, including that the Court “[g]rant[] Plaintiff a declaration that his religion, Creativity, qualifies as a religion entitled to First Amendment, Article 1 State Law and RLUIPA protection.” (Id. at ¶ 76.)

         III. Plaintiff's Motion for Immediate Recognition of Creativity as a Religion

         By the instant motion, Plaintiff asks the Court to “immediately rule that Creativity constitutes a religion for purposes of the First Amendment and RLUIPA.” (ECF No. 66 at p. 4.) Plaintiff's motion seeking a declaration that Creativity constitutes a religion is a procedurally improper motion for declaratory relief. See, e.g., Owen v. City of Portland, 236 F.Supp.3d 1288, 1298 (D. Ore. 2017) (declaratory relief available at end of lawsuit, but not as preliminary relief; noting that a federal court “has no authority to grant a motion seeking temporary declaratory relief”); Centrifugal Acquisition Corp. v. Moon, No. 09-C-327, 2010 WL 152074, at *1 (E.D. Wis. Jan. 14, 2010) (“there is no such thing as a motion for declaratory relief”).

         In Kam-Ko Bio-Pharm Trading Co. Ltd-Australasia v. Mayne Pharma (USA) Inc., 560 F.3d 935 (9th Cir. 2009), the Ninth Circuit held as follows:

a party may not make a motion for declaratory relief, but rather, the party must bring an action for a declaratory judgment. Insofar as plaintiffs seek a motion for a declaratory judgment, plaintiffs' motion is denied because such a motion is inconsistent with the Federal Rules. The only way plaintiffs' motion can be construed as being consistent with the Federal Rules is ...

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