                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 5 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL ANTHONY TODD,                           No.    18-16843

                Plaintiff-Appellant,            D.C. No.
                                                1:12-cv-01003-DAD-BAM
 v.

D. J. RUIZ; M. SMITH, Community                 MEMORANDUM*
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.

                   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.
                       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).

                                            2
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.

                                           3
