Michael Anthony Todd v. D. J. Ruiz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL ANTHONY TODD,
Plaintiff-Appellant,
v.
D. J. RUIZ; M. SMITH, Community
Partnership Manager, Corcoran State Prison;
MAYO; MUSSELLMAN; BEN ALBITRE,
Native American Spiritual Leader, Corcoran
State Prison; YOSSI CARRON; RICHARD
INDERMILL,
Defendants-Appellees,
and
C. GIPSON; D. FOSTON; D. JORDAN; C.
BARNETT; T. CANO; K. CRIBBS;
CALIFORNIA STATE PRISON
CORCORAN; CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
REHABILITATION; J. CAVAZOS, Deputy
Warden, Corcoran State Prison; R DAVIS,
Appeals Examiner, Office of Appeals; J. C.
SMITH,
Defendants.
No. 18-16843
D.C. No.
1:12-cv-01003-DAD-BAM
MEMORANDUM*
Appeal from the United States District Court
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
NOV 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted November 1, 2019**
Before: FARRIS, O'SCANNLAIN, and TROTT, Circuit Judges.
Michael Anthony Todd, a California state prisoner, appeals the district
court’s order dismissing some prison officials and appeals from the grant of
summary judgment in favor of others. Because the facts are known to the parties,
we repeat them only as necessary to explain our decision.
I
Todd argues the prison officials were not entitled to qualified immunity
because they violated his clearly established right to practice his religion of
Creativity by discarding his religious materials and refusing to grant him a
religious diet. However, it is not clearly established that Creativity invoked
constitutionally cognizable religious interests, and therefore the prison officials
were not on notice that their conduct might violate a constitutional right. See
Saucier v. Katz, 533 U.S. 194, 201 (2001). Neither the Supreme Court nor the
Ninth Circuit has ever addressed the issue of whether Creativity invokes a
constitutionally cognizable religious interest, but several district courts in this
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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circuit have done so, instead viewing it as a secular philosophy that espouses white
racial dominance. See Community House, Inc. v. City of Boise, 623 F.3d 945, 967
(9th Cir. 2010). Such right was not clearly established, and, therefore, the district
court properly concluded that the prison officials were entitled to qualified
immunity.
II
Todd also claims he was entitled to appointed counsel because he would
have had a greater likelihood of success with an attorney. However, he failed to
prove exceptional circumstances that would have entitled him to appointed counsel
in a civil case. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
The record reveals that Todd has demonstrated sufficient writing ability,
familiarity with the legal standards, and capacity to conduct discovery and to file
motions with the court. In addition, the claims in this case are not overly complex.
Because Todd did not demonstrate exceptional circumstances, the district court did
not abuse its discretion in concluding that he was not entitled to appointed
counsel.1
AFFIRMED.
1 The Request for Entry of Default, filed with this court on May 9, 2019, is
DENIED.

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