United States District Court, E.D. California
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
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 Smith-Robicheaux (sued as
“Smith”), Mayo, Mussellman, and Ruiz 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.
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
Jurisdiction Pending Appeal
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.
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.
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.)
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.)
Plaintiff's Motion for Immediate Recognition of
Creativity as a Religion
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
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 ...