FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DENNIS FLORER, 

Plaintiff-Appellant,

v.

No. 07-35866

CONGREGATION PIDYON SHEVUYIM,

D.C. No. N.A. Contract Chaplaincy; GARY 

FRIEDMAN, Contract Chaplain; CV-06-01465-RSM

JEWISH PRISONERS SERVICES OPINION

INTERNATIONAL, Contract

Chaplaincy,

Defendants-Appellees. 

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

Filed April 15, 2011

Before: Robert R. Beezer, Ronald M. Gould and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Gould

5059
COUNSEL

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.

5062 FLORER v. CONGREGATION PIDYON SHEVUYIM
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

FLORER v. CONGREGATION PIDYON SHEVUYIM 5063
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

1Facility chaplains, unlike contract chaplains, are DOC employees. 

5064 FLORER v. CONGREGATION PIDYON SHEVUYIM
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

FLORER v. CONGREGATION PIDYON SHEVUYIM 5065
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.

2The district court did not reach the question of exhaustion, and it is not

necessary for us to do so here. 

5066 FLORER v. CONGREGATION PIDYON SHEVUYIM
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

[1] 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 invalidation of the

Religious Freedom Restoration Act (“RFRA”). Cutter v. Wilkinson, 544 U.S. 709, 715 (2005). RFRA defined “government” to include a “person acting under color of law.” 42

U.S.C. § 2000bb-2(1). RLUIPA’s definition of “government”

3Defendants do not challenge, and we do not decide, RLUIPA’s application to private actors sued for damages in their individual capacity. The

Fifth, Seventh, and Eleventh Circuits have held that RLUIPA does not

provide an action for damages for individual-capacity claims. See Sossamon v. Lone Star State of Tex., 560 F.3d 316, 327-28 & n.23 (5th Cir.

2009); Nelson v. Miller, 570 F.3d 868, 889 (7th Cir. 2009); Smith v. Allen,

502 F.3d 1255, 1272-75 (11th Cir. 2007). The Ninth Circuit has not ruled

on this issue in a precedential opinion, and we reserve this question for

another day. 

FLORER v. CONGREGATION PIDYON SHEVUYIM 5067
is nearly identical. § 2000cc-5(4)(A)(iii). When we interpreted RFRA, we adopted “the judicial interpretation of the

phrase ‘acting under color of law,’ as used in 42 U.S.C.

§ 1983,” holding that it applied equally in RFRA actions. Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835

(9th Cir. 1999). We similarly apply our interpretation of

§ 1983’s “color of state law” clause to Florer’s RLUIPA

claims. See Bragdon v. Abbott, 524 U.S. 624, 645 (1998)

(“When administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition

of the same language in a new statute indicates, as a general

matter, Congress’ intent to incorporate such interpretations as

well.”).

[2] The Supreme Court has explained that “[t]he traditional

definition of acting under color of state law requires that the

defendant in a § 1983 action have exercised power ‘possessed

by virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law.’ ” West

v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v.

Classic, 313 U.S. 299, 326 (1941)). To determine whether

actions that allegedly caused the deprivation of a right are

fairly attributable to the state even though they were committed by private actors, we follow a two-part approach: “First,

the deprivation must be caused by the exercise of some right

or privilege created by the State or by a rule of conduct

imposed by the state or by a person for whom the State is

responsible.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937

(1982). “Second, the party charged with the deprivation must

be a person who may fairly be said to be a state actor.” Id. We

start with the presumption that conduct by private actors is not

state action. Sutton, 192 F.3d at 835. Florer bears the burden

of establishing that Defendants were state actors. See Flagg

Bros. v. Brooks, 436 U.S. 149, 156 (1978).

IV

[3] We begin with the first step of the analysis: whether the

deprivation is the result of a governmental policy. See Sutton,

5068 FLORER v. CONGREGATION PIDYON SHEVUYIM
192 F.3d at 835 (citing Lugar, 457 U.S. at 937). Florer contends that Defendants impermissibly burdened his religious

exercise in violation of RLUIPA and the First Amendment of

the Constitution. He alleges that he was deprived of his religious freedom by Defendants’ refusal to provide him with a

Torah, a Jewish calendar, and a rabbi visit. Stated another

way, Florer alleges that he was deprived of his free exercise

rights by Defendants’ policy of only providing religious materials and rabbi visits to individuals that Defendants determined were Jewish according to particular criteria. But if

Defendants indeed have such a policy, it is their own: it is not

“the exercise of some right or privilege created by the State

or by a rule of conduct imposed by the state or by a person

for whom the State is responsible.” Lugar, 457 U.S. at 937.

Florer has offered no evidence that Defendants were enforcing a DOC or governmental policy prohibiting him from consulting with a rabbi or possessing a Torah or calendar, or that

Defendants’ internal policy was adopted by the DOC.

[4] Florer does allege that Defendants were “allowed by

the [DOC] to dictate which prisoners receive the aforesaid

[religious materials and leadership] and which do not,” and

that the DOC relied on Defendants’ determination to decide

whether Florer “should receive a Torah and a Jewish calendar.” But Defendants cannot be said to “dictate” to whom the

DOC will provide religious materials and rabbi visits, because

the DOC does not directly provide such things. On appeal,

Florer asserts that “[D]efendants have exclusive control over

inmates’ access to religious services to which the state is constitutionally obligated to provide access.” But the record indicates that Florer had the opportunity to make phone calls and

write letters to contact religious organizations outside the

prison, and that he actually did so. There is nothing in the

record that indicates that Defendants blocked his access to

other religious communities or his ability to request religious

materials and information from other individuals and organizations.

FLORER v. CONGREGATION PIDYON SHEVUYIM 5069
Even under a liberal construction,4

 at most Florer’s complaint and cross-motion for summary judgment contend that

Defendants helped DOC staff determine whether other prisoners should be classified by the DOC as Jewish. But Florer has

not produced any evidence that the DOC did not classify him

as Jewish. Whether the DOC classified others as non-Jewish

based on Defendants’ advice or direction is not relevant to

this appeal because, even if true, it would not establish that

Florer’s rights were deprived by such a policy. For the same

reason, Florer’s contention that the DOC relied on Defendant

Friedman’s advice to determine which prisoners would

receive kosher food is unavailing. Florer does not claim that

he was removed from the DOC’s kosher diet. 

[5] Florer simply has not come forward with evidence to

show that Defendants fostered or furthered any government

policy that blocked him from obtaining religious materials or

leadership from other sources. Cf. Cruz v. Beto, 405 U.S. 319,

323 (1972) (Burger, C.J., concurring) (“There cannot possibly

be any constitutional or legal requirement that the government

provide materials for every religion and sect practiced in this

diverse country. At most, [religious] materials cannot be

denied to prisoners if someone offers to supply them.”).

While Florer has provided some evidence that the DOC staff

referred him only to Defendants, instead of actively seeking

other religious service providers to meet his requests, the

DOC is not a defendant in this action. Even if Defendants

were the only Jewish organizations operating within the DOC,

that fact, standing alone, does not transform Defendants’

internal policy into governmental policy. We hold that the

alleged deprivation was not caused by exercise of governmental policy and does not satisfy the first step of the Lugar analysis.

4

“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se

complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ ” Erickson v. Pardus, 551

U.S. 89 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (citations omitted). 

5070 FLORER v. CONGREGATION PIDYON SHEVUYIM
V

Even if Florer satisfied the first step of the Lugar analysis,

he still fails the second: whether the party charged with the

deprivation can be fairly considered a state actor. “In order for

private conduct to constitute governmental action, ‘something

more’ must be present.” Sutton, 192 F.3d at 835. The

Supreme Court has instructed that “state action may be found

if, though only if, there is 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.’ ”

5 Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S.

288, 295 (2001) (quoting Jackson v. Metro. Edison Co., 419

U.S. 345, 351 (1974)). Courts have employed various

approaches to determine whether a person may fairly be considered a state actor. Lee v. Katz, 276 F.3d 550, 554 (9th Cir.

2002). “What is fairly attributable 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., 531 U.S. at 295-96.

“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, 276 F.3d

at 554. The Supreme Court has identified at least seven such

5The Supreme Court has noted a doctrinal distinction between “state

action” and acts “under color of state law.” Lugar, 457 U.S. at 935 & n.18

(holding that “although . . . conduct satisfying the state-action requirement

. . . satisfies the statutory requirement of action under color of state law,”

the converse is not necessarily true). However, any distinction is immaterial for purposes of this appeal. “Where, as here, deprivations of rights

under the Fourteenth Amendment are alleged, these two requirements converge.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 n.8 (1999).

In this opinion, we refer to “state action” and “acts under color of state

law” interchangeably. 

FLORER v. CONGREGATION PIDYON SHEVUYIM 5071
approaches. Brentwood Acad., 531 U.S. at 296. “Satisfaction

of any one test is sufficient to find state action, so long as no

countervailing factor exists.” Kirtley v. Rainey, 326 F.3d

1088, 1092 (9th Cir. 2003).

On appeal, Florer urges that Defendants are state actors

under either the “public function” or “joint action” approach.

We discuss each in turn.

A

“Under the public function test, when private individuals or

groups are endowed by the State with powers or functions

governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.” Lee, 276 F.3d at 554-55 (internal quotation marks

omitted). “The public function test is satisfied only on a

showing that the function at issue is ‘both traditionally and

exclusively governmental.’ ” Kirtley, 326 F.3d at 1093 (quoting Lee, 276 F.3d at 555). 

Florer relies on West v. Atkins, in which the Supreme Court

held that a private physician employed by the state on a contract basis to provide medical services to inmates acted under

color of state law when treating a prisoner’s injuries. 487 U.S.

at 54. Florer contends that Defendants contracted with the

DOC to provide religious services to inmates, and that Defendants, like the physician in West, were state actors because

they had “exclusive control over inmates’ access to religious

services to which the state is constitutionally obligated to provide access.” But the comparison to West is flawed. In West,

state law barred the prisoner from receiving medical care

from anyone other than the state’s designated physicians. Id.

at 44 n.2, 55. But Florer has not shown that any law or policy

restricted him from receiving a Torah, calendar, or rabbi visit

from persons or organizations other than Defendants. Moreover, in West, the prison was required by the Eighth Amendment and state law to provide health services to its prisoners.

5072 FLORER v. CONGREGATION PIDYON SHEVUYIM
Id. at 54-55 & n.13. The prison fulfilled that responsibility by

hiring contract physicians. Id. at 55. Florer contends that the

DOC likewise fulfills its “constitutional obligation to accommodate prisoners’ free exercise rights” by employing contract

chaplains. But the DOC is not under a comparable duty to

provide religious materials and services to inmates; rather, the

DOC must provide reasonable opportunities to exercise religious freedom. Cruz, 405 U.S. at 322 & n.2; Cutter, 544 U.S.

at 720 n.8. Florer has not presented evidence showing that the

DOC delegated to contract chaplains its obligation to provide

reasonable opportunities to exercise religious freedom. On the

contrary, one way that the DOC fulfills its responsibility is by

hiring contract chaplains.

[6] West also stated that the fact that contract physicians

were professionals acting in accord with professional discretion and judgment, standing alone, did not remove them from

the purview of § 1983. 487 U.S. at 52. Yet the Court cautioned that it did “not suggest that this factor is entirely irrelevant to the state-action inquiry.” Id. at 52 n.10. Rather, the

Court explained that, “[w]here the issue is whether a private

party is engaged in activity that constitutes state action, it may

be relevant that the challenged activity turned on judgments

controlled by professional standards, where those standards

are not established by the State.” Id. Such is the case with

contract chaplains. Defendants’s professional standards governing who is a member of their religion are not dictated by

the state. We cannot say that Defendants denied Florer’s

request “on the basis of some rule of decision for which the

State is responsible.” Id. “This is essentially a private function

. . . for which state office and authority are not needed.” Polk

Cnty. v. Dodson, 454 U.S. 312, 319 (1981).

[7] Montano v. Hedgepeth supports our conclusion. 120

F.3d 844 (8th Cir. 1997). There, the Eighth Circuit observed

that “[t]he teachings endorsed and practiced by recognized

spiritual leaders are not, and should not be, subject to governmental pressures, and the canons which underlie most of the

FLORER v. CONGREGATION PIDYON SHEVUYIM 5073
world’s denominations are typically thought to derive from

divine, rather than worldly, inspiration.” Id. at 850. The Montano court held that “a prison chaplain . . . 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).”

Id. at 851. We agree. To the extent that Defendants refused to

provide religious materials or services to Florer and refused

to recognize him as Jewish, such determinations were ecclesiastical, not public, functions.

[8] Florer relies on Phelps v. Dunn, a Sixth Circuit decision that held that a volunteer chaplain was a state actor when,

in violation of prison policy, he blocked a homosexual inmate

from attending prison chapel services otherwise open to all.

965 F.2d 93, 102 (6th Cir. 1992). But Phelps is a case about

denial of a prisoner’s access to religious congregational services in general. In Phelps, the court expressly noted that its

decision did not “concern the rights of other prisoners or pastors to have a service without those they may consider sinners.” Id. at 98. Indeed, the Sixth Circuit noted that “in the

absence of quite specific evidence of concrete discrimination

on an impermissible ground, federal courts should not become

involved in determining questions of selection of lay people

for liturgical participation.” Id. at 101 (distinguishing between

“participation” and “attendance”). Moreover, the court

grounded its decision that the chaplain was a state actor on the

existence of prison policy, and a contract signed by the chaplain, that “specifically restricted him from denying prisoners

access to religious services on the basis of his own religious

beliefs.” Id. at 102. The chaplain actively barred the prisoner

from attending a religious service in a prison chapel, disregarding the contract, prison policy, and a directive from the

Warden requiring that the prisoner “be allowed to participate

in religious services and [that he] should not be denied participation because of his sexual orientation.” Id. at 99. We

decline to apply the holding of Phelps here because Florer

was not barred by Defendants from attending the prison’s

generally available religious services. While CPSNA had

5074 FLORER v. CONGREGATION PIDYON SHEVUYIM
entered into a contract with DOC to provide religious instruction and guidance to inmates, the contract cannot reasonably

be read to require Defendants to provide Florer with a Torah,

calendar, or rabbi visit. Defendants are not state actors under

the public-function analysis.

B

[9] Florer also contends that Defendants are state actors

under the “joint action” analysis outlined in the Supreme

Court’s decision in Lugar, where the Court held: “Private persons, jointly engaged with state officials in the prohibited

action, are acting ‘under color’ of law.” Lugar, 457 U.S. at

941 (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 152

(1970)) (internal quotation marks omitted). “[W]e consider

whether ‘the state has so far insinuated itself into a position

of interdependence with the private entity that it must be recognized as a joint participant in the challenged activity. This

occurs when the state knowingly accepts the benefits derived

from unconstitutional behavior.’ ” Kirtley, 326 F.3d at 1093

(quoting Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480,

1486 (9th Cir. 1995)). 

[10] To support the contention that Defendants were joint

participants with the state, Florer points to our decision in

Swift v. Lewis. 901 F.2d 730, 732 n.2 (9th Cir. 1990). We

there held that the state action doctrine did not bar a claim

against a private individual who contracted with the state to

help determine whether a prison should classify particular

prisoners as Sikhs because the private individual “was a ‘willful participant in joint action with the State or its agents.’ ” Id.

(quoting Dennis v. Sparks, 449 U.S. 24, 27-28 (1980)). Florer

contends that here, as in Swift, the DOC relied on Defendants’

determination about which prisoners were Jewish. This argument fails for two reasons. First, in Swift, the plaintiff alleged

that the private individual conspired with prison officials to

remove the plaintiff from the list of Sikh prisoners. Swift, 901

F.2d at 732. Here, the record is devoid of any evidence that

FLORER v. CONGREGATION PIDYON SHEVUYIM 5075
Defendants conspired with the DOC or were willful participants in decisions made by the DOC about how to classify

Florer.6 Second, even if Defendants had provided advice to

the DOC about Florer’s Jewish status, such advice was an

ecclesiastical answer to a question of religious doctrine, not

an administrative determination. Chaplains and religious leaders do not automatically become state actors when they provide opinions on matters of dogma in response to inquiries

from prison officials. “At least insofar as matters of religious

theory are implicated . . . prison chaplains enjoy complete

protection from the prospect of governmental intrusion, and

there is no ‘joint effort’ between prison officials and the

clergy concerning spiritual questions.” Montano, 120 F.3d at

851 n.11. There is no evidence that the DOC wanted Defendants to determine that Florer was not Jewish, or that the

DOC derived any benefit from Defendants’ determination.

The joint action test is not satisfied absent willful joint participation, like the conspiracy in Swift, where the state was in “a

position of interdependence with the private entity.” Kirtley,

326 F.3d at 1093 (quoting Parks Sch. of Bus., Inc., 51 F.3d

at 1486).

VI

[11] We hold that defendants’s actions do not present the

required “close nexus between the State and the challenged

action.” Brentwood Acad., 531 U.S. at 295 (quoting Jackson,

419 U.S. at 351). Because Florer has not named a state actor,

the district court correctly granted summary judgment for

Defendants.

6While Florer does present some evidence to support his contention that

the DOC relied on Defendants’ input in determining whether other prisoners should be classified as Jewish, that evidence is not relevant here

because Florer has not presented proof that he was not classified by the

DOC as Jewish, or that he was deprived of any prison-provided services

or benefits as a result of Defendant’s actions. 

5076 FLORER v. CONGREGATION PIDYON SHEVUYIM
AFFIRMED.

FLORER v. CONGREGATION PIDYON SHEVUYIM 5077