Florer v. Shevuyim

• Decision Date: 15 April 2011
• Docket Number: No. 07–35866.,07–35866.
• Citation: 639 F.3d 916
• Parties: Dennis FLORER, Plaintiff–Appellant,v.CONGREGATION PIDYON SHEVUYIM, N.A., Contract Chaplaincy; Gary Friedman, Contract Chaplain; Jewish Prisoners Services International, Contract Chaplaincy, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

639 F.3d 916

11 Cal. Daily Op. Serv. 4465

2011 Daily Journal D.A.R. 5383

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, Ninth Circuit.

Argued and Submitted Dec. 9, 2009.Filed April 15, 2011.

Ian Cairns (argued), Theresa DeMonte, and Alysha Yagoda (argued), law students at the University of Washington Law School, supervised by Eric Schnapper, University of Washington Law School, and Leonard J. Feldman, Stoel Rives LLP, Seattle, WA, for the plaintiff-appellant.Robert M. McKenna, Washington Attorney General, Sara J. Olson (argued), Assistant Washington Attorney General, and Andrew D. Tsoming (intern), Olympia, WA, for the defendants-appellees.Appeal from the United States District Court for the Western District of Washington, Ricardo S. Martinez, District Judge, Presiding. D.C. No. CV–06–01465–RSM.Before: ROBERT R. BEEZER, RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Plaintiff–Appellant Dennis Florer, a Washington State prisoner, filed a 42 U.S.C. § 1983 and Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) action against Congregation Pidyon Shevuyim, N.A. (“CPSNA”), a Jewish organization that contracted with the Washington State Department of Corrections (“DOC”) to provide Jewish religious services to prisoners; Jewish Prisoners Services International (“JPSI”), an outreach program of CPSNA; and Rabbi Gary Friedman, president of CPSNA and chairman of JPSI (collectively “Defendants”). The district court granted summary judgment for Defendants, concluding that Florer had not named a state actor as a defendant. Florer timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

We must decide whether Defendants, private entities operating as contract chaplains within the Washington State prison system, were “state actors” for purposes of § 1983 and RLUIPA when they declined Florer's request for a Torah, a Jewish calendar, and a rabbi visit on the ground that they did not consider Florer to be Jewish. We hold that, in the circumstances here, Defendants were not state actors.

From 2000 until 2005, CPSNA, through its president, Rabbi Gary Friedman, contracted with the Washington State DOC to provide Jewish religious services to prisoners. The contract required CPSNA, through contract chaplains (including Friedman, though Friedman did not receive a wage), to “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.” In 2001, this provision was amended to include language specifying that “[t]he Contract Chaplain will provide instruction and guidance to offenders in order to facilitate spiritual growth. While at a local prison facility, the Facility Chaplain/Chaplain Supervisor will coordinate services with the Contract Chaplain.” ¹ The amendment also said that “[t]he Contract Chaplain and Facility Chaplain shall work cooperatively to meet the religious needs of Jewish offenders at the facility.” In 2003, the parties again 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 specified that contract chaplains were “ not employees or agents of the Department [of Corrections],” and it forbade contractors from claiming to be “an officer or employee of the Department or of the state of Washington.” It also required that CPSNA comply with DOC policies. In particular, two DOC Policy Directives described the roles of prison staff and contract chaplains. DOC Policy Directive 560.200 tasked the Religious Program Manager, a DOC employee, with ensuring “that the religious/spiritual needs of offenders are appropriately met” and providing “leadership and guidance to Chaplains and religious volunteers. It also required each prison to employ at least one facility chaplain for “coordinating and supervising religious activities and community resources to meet the expressed religious needs of offenders.” The Directive permitted the use of contract chaplains “to meet the needs of specific religious/faith groups.” The Directive further stated that offenders should have reasonable access to religious activities and instruction as well as religious items. According to the Directive, religious “[i]tems must be: (a) Requested through the facility Chaplain; (b) Procured in accordance with established mail and property procedures; (c) Obtained from Office of Correctional Operations (OCO)-approved authorized religious vendors; (d) Issued by the facility Chaplain and appropriately documented; and (e) Not altered.”

An additional Policy Directive, 560.100, outlined the responsibilities of facility chaplains and contract chaplains. Among other responsibilities, the facility chaplains “coordinate religious activities to meet identified and requested offender needs” and “[a]ssist and refer the offenders ... to religious assistance programs and agencies in the community as appropriate.” Under the Policy Directive, contract chaplains, working under the guidance and supervision of the facility chaplain, were “expected to attend to the spiritual needs of offenders for their specific denomination or religious group” by facilitating the development of religious education and training opportunities for offenders and DOC staff, referring offenders to religious assistance programs and agencies in the community, conducting denominational religious services for offenders, providing spiritual guidance to offenders as requested, and suggesting changes in DOC policy or procedure when appropriate.

In 2004, while incarcerated in Washington State Penitentiary, Florer identified his religious preference as “Jewish” on the DOC's Religious Preference form. He also requested a Torah, a Jewish calendar, and a rabbi visit. Washington State Penitentiary Facility Chaplain William Peck received these requests. Peck told Florer that, at the time, “no Jewish rabbis visited [Washington State Penitentiary] to speak to inmates.” Peck also determined that the Penitentiary did not have any donated copies of the Torah or a Jewish calendar to give to Florer. Peck informed Florer of that fact, and then referred Florer's request to JPSI. In May 2004, Florer sent a letter to JPSI. The letter primarily complained about the quality of the kosher diet in prison, but it also mentioned that his request for a Torah and a rabbi visit had gone unanswered. The next month, Florer sent another letter to JPSI, again complaining about the kosher diet, and stating that “[t]he Chaplain will not send me a Talmud, Torah, or anything else. No one comes to see me out here.” Florer then phoned Friedman, the chair of JPSI and president of CPSNA. Though the details of that conversation are disputed, we assume for purposes of this appeal that Florer asked Friedman to provide him with a Torah, a Jewish calendar, and a visit from a rabbi. Friedman asked if Florer was born to a Jewish mother or if he had converted to Judaism. During their discussion, Friedman explained that he did not view Florer as Jewish. Friedman sent Florer a blank copy of JPSI's Prisoner Information form, but there is no evidence that Florer completed the form or sent it back to Friedman, JPSI, or CPSNA. We assume for purposes of this appeal that Friedman rejected Florer's request for religious materials and a rabbi visit on the ground that Friedman believed Florer was not Jewish.

In November 2006, after allegedly exhausting his administrative remedies, ² Florer filed a pro se complaint alleging that Defendants burdened his religious freedom in violation of RLUIPA and the First Amendment of the Constitution. Florer alleged that Defendants “refused to provide basic religious reading materials, other basic materials, and spiritual leadership.” He further alleged that Defendants were “allowed by the [DOC] to dictate which prisoners receive the aforesaid [religious materials and leadership] and which do not.” Florer also claimed that Defendants were contractually prohibited from denying requests for religious materials and leadership, and that they were state actors due to their contractual relationship with DOC. Defendants filed a motion to dismiss, which the district court converted to a motion for summary judgment. Florer then filed a cross-motion for summary judgment. After full briefing by both parties, the district court granted summary judgment for Defendants on the ground that Florer had not named a state actor.

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). “We view the evidence in a light most favorable to the non-moving party and decide whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law.” Id.

III

Florer seeks relief under § 1983 and RLUIPA. To state a claim under § 1983, Florer “must allege a violation of his constitutional rights and show that the defendant's actions were taken under color of state law.” Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir.2001). Similarly, under RLUIPA, Florer must show that a “government” has imposed a substantial burden on his religious exercise. 42 U.S.C. § 2000cc–1(a). RLUIPA defines “government” to include a “person acting under color of State law.” 42 U.S.C. § 2000cc–5(4)(A)(iii).³

As relevant to this appeal, our inquiry to determine whether a defendant acted “under color of state law” is the same under RLUIPA as it is under § 1983. Congress passed RLUIPA in response to the Supreme Court's partial...