DENNIS FLORER, Plaintiff-Appellant, v. CONGREGATION PIDYON SHEVUYIM, N.A. Contract Chaplaincy; GARY FRIEDMAN, Contract Chaplain; JEWISH PRISONERS SERVICES INTERNATIONAL, Contract Chaplaincy, Defendants-Appellees.
No. 07-35866
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 5, 2010
6719
Opinion by Judge Gould
D.C. No. CV-06-01465-RSM. FOR PUBLICATION. Appeal from the United States District Court for the Western District of Washington, Ricardo S. Martinez, District Judge, Presiding. Argued and Submitted December 9, 2009—Seattle, Washington.
Opinion by Judge Gould
Ian Cairns (argued), Theresa DeMonte, and Alysha Yagoda (argued), law students at the University of Washington Law School, Seattle, Washington; supervised by Eric Schnapper, University of Washington Law School, Seattle, Washington, and Leonard J. Feldman, Stoel Rives LLP, Seattle, Washington, for the plaintiff-appellant.
Robert M. McKenna, Washington Attorney General; Sara J. Olson (argued), Assistant Washington Attorney General; and Andrew D. Tsoming (intern), Olympia, Washington, for the defendants-appellees.
OPINION
GOULD, Circuit Judge:
Dennis Florer, a Washington State prisoner, appeals the district court‘s summary judgment in Florer‘s
I
Congregation Pidyon Shevuyim, N.A., through its president, Gary Friedman, contracted with the Washington Department of Corrections (“DOC“) to provide Jewish religious services to prisoners through an outreach program called Jewish Prisoners Services International. The contract required that Congregation provide “religious training on essential Jewish religious practices to Department of Corrections’ offenders who request this service. The services will include religious instruction and assistance with Jewish problems in all prisons located in Washington State.” Later, the parties amended this provision by adding, “Services will be open to all offenders, however, the Jewish authorities will determine who can participate in liturgical related activities.”
The contract required that Congregation comply with DOC policies as well as the contract‘s General Terms and Conditions. In particular, DOC Policy Directive 560.200 recognized that prisoners have “inherent and constitutionally protected rights to believe, express, and exercise the religion of their individual choice.” It also stated that prisoners should have reasonable access to religious activities and religious instruction, including access to printed materials of a religious nature. Policy Directive 560.200 provided that prisoners may possess religious materials if they, among other things, request those materials “through the facility Chaplain.”
DOC Policy Directive 560.100 stated that contract chaplains, such as Congregation, “are expected to attend to the
In 2002, Congregation President Friedman sent a letter to a DOC facility chaplain responding to an inquiry about non-Jewish prisoners participating in Jewish activities and possessing Jewish religious items. The letter explained that the DOC chaplains had been “somewhat lenient” about allowing non-Jewish prisoners to participate in Jewish activities, and Friedman noted an increase in prisoner legal challenges to the receipt of Jewish materials and food. Friedman stated in the letter that “Jewish law” mandates that a person is Jewish only if that person was born to a Jewish mother or formally converted to the faith. Allowing non-Jewish prisoners to participate in Jewish activities, Friedman explained, presented challenges to the orderly operation of correctional facilities and created undue burdens on the Jewish chaplaincy programs. Friedman suggested in the letter that the sole solution was to provide religious materials and services only to those prisoners who “require them as obligations of their bona fide faiths,” that is, to prisoners that were born to a Jewish mother or formally converted. Friedman offered to assist the DOC if it had “difficulty in determining which inmates are Jewish.”1
According to Florer, three months after receiving the letter, the DOC implemented a new policy stating that while “the Department and its agent will not attempt to evaluate the [religious] sincerity of the offender or the religious tradition,” it may request “[v]erification from the Clergy of the specified
Florer completed a DOC religious-preference form identifying his religious preference as Jewish and requested a kosher diet, a Torah, a Jewish calendar, and consultation with a rabbi. The facility chaplain referred his requests to Congregation. Florer thereafter sent several letters to Congregation complaining about his kosher diet, asking for assistance to obtain a Torah, and seeking consultation with a rabbi. Florer declared that on at least one occasion he telephoned Friedman and requested a Torah and a Jewish calendar. Florer also declared that Friedman said he would provide Florer with those items if Friedman first determined that Florer was actually Jewish. Friedman admitted that he asked Florer if Florer was born Jewish or formally converted, and Friedman mailed to Florer a questionnaire to assist in this determination. Florer did not complete the questionnaire, and he did not receive the requested religious materials or services.
After exhausting his administrative remedies, Florer filed a pro se complaint in the district court alleging that Congregation violated his First Amendment rights as well as the
Congregation filed a motion to dismiss for, among other things, failure to name a state actor, and the court converted that motion into a motion for summary judgment. Florer also moved for summary judgment. The district court adopted the magistrate judge‘s recommendation to grant summary judgment in favor of Congregation. The district court held that even though Florer presented evidence that the DOC relied on Congregation‘s input in determining whether prisoners should
II
We review de novo a district court‘s decision to grant summary judgment. FTC v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009). Our review is governed by the same standard used by the trial court under
We decide the limited issue of whether Congregation acted under color of state law, the sole issue upon which the district court grounded its decision.
III
[1] To state a claim under
[2] This case involves a special set of considerations that impact whether a private party has acted under color of state law. To determine whether a private actor acts under color of state law, we must evaluate whether the alleged infringement of federal rights is “fairly attributable” to the government even though committed by private actors. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003); see also West v. Atkins, 487 U.S. 42, 49 (1988) (“To constitute state action, the deprivation must be caused by the exercise of some right or privilege created by the State or by a person for whom the State is responsible, and the party charged with the deprivation must be a person who may fairly be said to be a state actor.” (internal punctuation omitted)). Determining what is fairly attributable to the government “is a matter of normative judgment, and the criteria lack rigid simplicity. . . . [N]o one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass‘n, 531 U.S. 288, 295-96 (2001). There must be “such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. at 295 (internal quotation marks omitted); see also Single Moms, Inc. v. Mont. Power Co., 331 F.3d 743, 747 (9th Cir. 2003).
[3] “Because of the fact-intensive nature of the inquiry, courts have developed a variety of approaches” to assess whether a private party has acted under color of state law. Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002). We have recognized at least four such criteria, or tests: (1) public function, (2) joint action, (3) governmental compulsion or coercion, and
IV
[4] Under the “public function” analysis, state action is present “in the exercise by a private entity of powers traditionally exclusively reserved to the State.” Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 814 (9th Cir. 2010) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974)). For example, in West v. Atkins, the Supreme Court held that a private physician acted under color of state law when the physician contracted with the state to provide medical services to prisoners at state-prison hospitals. 487 U.S. at 54. A prisoner filed a civil-rights action against such a physician alleging that the physician violated the prisoner‘s Eighth Amendment rights by failing to provide necessary medical treatment. Id. at 45. The Court held that the physician‘s conduct could “fairly be attributed to the State” because the state “bore an affirmative obligation to provide adequate medical care to [the prisoner]; the State delegated that function to respondent [physician]; and respondent voluntarily assumed that obligation by contract.” Id. at 55-56. The Court found significant the prison‘s policy prohibiting the prisoner from employing or electing “to see a different physician of his own choosing.” Id. at 44. The Court held, “Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State‘s pris-
[5] We conclude, viewing the evidence in the light most favorable to Florer, that the DOC used contract chaplains such as Congregation to meet its legal obligation to provide prisoners with appropriate access to religious materials and services similarly as the state in West used contract physicians to meet its obligation to provide adequate medical care to prisoners. “Under the Constitution, reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments.” Pierce v. County of Orange, 526 F.3d 1190, 1209 (9th Cir. 2008) (quotation marks omitted); see also Alvarez v. Hill, 518 F.3d 1152, 1156 (9th Cir. 2008) (“RLUIPA disallows policies that impose a substantial burden on religious exercise unless the burden furthers a compelling governmental interest, and does so by the least restrictive means.” (internal punctuation omitted)). The DOC promulgated policies to effectuate these prisoner rights by, for example, permitting prisoners to attend services, celebrate holidays, eat religious diets, receive religious instruction, and possess religious materials. And the DOC employed Congregation to facilitate those policies for Jewish prisoners. Because DOC policy did not permit Florer to have access to Jewish materials and services from other sources without Congregation‘s approval, and because DOC policy required that Florer request those materials through the facility chaplain, who relied exclusively on Congregation‘s voluntarily offered determination that Florer was not Jewish, Congregation assumed the DOC‘s obligation and maintained control over Florer‘s access to Jewish materials and services. Congregation therefore acted under color of state law.
Our conclusion is consistent with the decision of the Sixth Circuit in Phelps v. Dunn, 965 F.2d 93 (6th Cir. 1992). In Phelps, the court concluded that a volunteer chaplain acted under color of state law when he excluded a prisoner from attending chapel because the prisoner‘s homosexual behavior
[6] Likewise, Congregation‘s role in determining which prisoners were Jewish, according to Congregation‘s religious beliefs, arose through its contract with the DOC. Although the mere fact of a contract with the DOC does not create state action in a contracting party, here the substance of the agreement placed critical responsibilities to facilitate the free exercise of religion by inmates upon Congregation. Congregation agreed to provide Jewish religious services to all prisoners who requested the services and agreed not to deny services on the basis of religion under the contract‘s General Terms and Conditions. Just as the “purpose of having and regulating prison religious services” in Phelps was, as the prison regulations stated, to “ensure the constitutional right of inmates to practice their religion,” 965 F.3d at 102, so too was the DOC‘s purpose of hiring contract chaplains to accommodate the “inherent and constitutionally protected rights [of prisoners] . . . to believe, express, and exercise the religion of their individual choice.” See DOC Policy Directive 560.200. Contract chaplains were required to attend to the spiritual needs of the offender, to advise the DOC facility chaplain “about spiritual, moral, and social concerns of offenders,” and to work “under the guidance and supervision” of the facility chaplain. DOC Policy Directive 560.100. Congregation‘s determination of whether Florer was Jewish under “Jewish law” controlled Florer‘s access to Jewish religious materials and services from all Jewish organizations, and, as in Phelps,
[7] The Eighth Circuit‘s decision in Montano is not inconsistent with our conclusion. The court in Montano concluded that “a prison chaplain, even if a full-time state employee, is not a state actor when he engages in inherently ecclesiastical functions (that is, when he performs spiritual duties as a leader in his church).” 120 F.3d at 851. But the court recognized that religious actors do not always perform spiritual duties and sometimes may perform duties to fulfill state obligations. Id. We agree with the Eighth Circuit that a situation involving a prison chaplain lies somewhere between the adversarial relationship that is the “lynchpin of a public defender‘s association with the state, see Polk County [v. Dodson], 454 U.S. 312, 318-20 (1981), and the spirit of cooperation in which prison physicians make decisions affecting an inmate‘s medical treatment, see West, 487 U.S. at 51.” See Montano, 120 F.3d at 851 n.11.
The state‘s nondelegable duty to give prisoners reasonable access to religious materials and services cannot be entirely avoided merely by classifying as “ecclesiastical” the pertinent decisions in providing such access. We conclude that the particular facts of this case, unlike those in Montano, make it more consistent with the decision in West. Whereas Florer alleged that he could not access any Jewish religious materials and services—even from other Jewish organizations—without Congregation‘s approval, the prisoner in Montano was not so prohibited. See id. at 848. Unlike the plaintiff in Montano, Florer did not concede that Congregation‘s actions were spiritual in nature. See id. at 851 n.12. In addition, the court in Montano distinguished its decision from the Sixth Circuit‘s decision in Phelps because in Phelps, the court “placed much reliance on the fact that the pastor had signed a contract with the prison which precluded him from denying prisoners access to services based on his own religious beliefs.” See id.
When a religious entity works with a prison system, the religious entity lies nebulously somewhere between private physicians that contract with prisons and public defenders. The Supreme Court holds that the former generally act under color of state law, West, 487 U.S. at 54, and that the latter generally do not, Polk County, 454 U.S. at 324-25. In some situations, a religious entity may work in tandem with a prison to fulfill the prison‘s constitutionally compelled duties. This type of relationship effectively places the religious entity in a role similar to that of private physicians who work in “joint effort” with the state. See West, 487 U.S. at 51. But in other situations, a religious entity may engage in purely religious activities that reasonable minds would be loathe to attribute to the government in light of the First Amendment, just as the Supreme Court in Polk County declined to treat public defenders as state actors because of the Sixth and Fourteenth Amendments. See Polk County, 454 U.S. at 321-22.
[8] Given the context-specific nature of religious entities contracting with prisons, courts confronting this question must examine the precise scope of actions of the religious entity and determine whether those actions are substitutes for traditional government actions or whether they are religious activities outside the traditional realm of government conduct. Here, although Congregation‘s decision to limit Florer‘s access to religious materials may have had a religious component, that characteristic does not alter that Congregation‘s conduct was a direct delegation of the DOC‘s constitutional duty to provide appropriate access to religious materials. If Congregation had instead been sued for its performance of religious activities that the state could not conduct itself, such as delivering sermons or praying for healing, Congregation
[9] While a religious organization‘s right to interpret and apply its own religious dogma is a countervailing factor against attributing activity to the government, cf. Single Moms, Inc., 331 F.3d at 748 (concluding that the “exercise of a [private party‘s] lawful First Amendment right to petition the government” is a countervailing factor), under the “fact-bound inquiry” for determining whether a private actor‘s conduct is fairly attributable to the government, this case is more akin to West. If Congregation maintained exclusive control over Florer‘s access to Jewish religious materials and services, which is a fair conclusion if all facts of Florer are credited and he is given all reasonable inferences, then the case would fall under the purview of West, because Congregation would be controlling the critical function of appropriate access that it was the duty of the state to provide. Here, in the light most favorable to Florer, the evidence indicates that Florer could access Jewish religious materials and services only through the facility chaplain, who relied exclusively on Congregation‘s determination that Florer was not Jewish. There is a genuine issue of material fact whether Congregation maintained exclusive control over Florer‘s access to Jewish religious materials and services, and so summary judgment was not correct on whether Congregation acted under color of state law.
V
Our conclusion that for summary judgment purposes Congregation acted under color of state law is reinforced and confirmed by the “joint action” analysis outlined in the United States Supreme Court‘s decision in Lugar v. Edmondson Oil Co., and our implementing decision in Swift v. Lewis, 901 F.2d 730, 732 (9th Cir. 1990). In Lugar, the Court held that a private party‘s joint participation with state officials in the
Private persons, jointly engaged with state officials in the prohibited action, are acting under color of law for purposes of the statute. To act under color of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents . . ..
Id. at 941 (quotation marks omitted).
We applied this joint-action analysis in Swift to facts similar to those at issue here. See 901 F.2d at 732. In Swift, a prison policy exempted Sikhs from cutting their hair in accordance with their religious beliefs. Id. at 731. A prisoner, David R. Gren, alleged that a private party, Santok Singh Khalsa, conspired with prison officials to remove Gren from the Sikh-exemption list while Gren was still a Sikh. Id. at 732. We remanded to the district court in part because Gren had sufficiently alleged that Khalsa acted under color of state law, even though Khalsa was a private party:
While the state action doctrine might seem to bar this claim, Gren has alleged that [the Arizona Department of Corrections (“ADOC“)] contracted with Khalsa to help them determine whether ADOC should classify particular prisoners as Sikhs. If this allegation is true (and we must assume that it is), the state action doctrine does not bar the claim because Khalsa was a “willful participant in joint action with the State or its agents.”
Id. at 732 n.2 (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)).
[10] Here, there is a genuine issue whether Congregation was a willful participant in joint action with prison officials
VI
Viewing the evidence in the light most favorable to Florer, we conclude that Congregation acted under color of state law. We do not address other issues on the merits.4 We reverse and remand for further proceedings in the district court not inconsistent with this opinion.
REVERSED and REMANDED.