United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 96-2487

___________ Nick P. Montano, *

Plaintiff - Appellant, *

v. * District Court for the Paul Hedgepeth; James Helling; * Dale Vande Krol, *

Defendants - * Appellees. *

* Appeal from the United States

* Southern District of Iowa.

*

___________ Submitted: January 16, 1997 Filed: July 23, 1997

___________ Before WOLLMAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.

___________ FLOYD R. GIBSON, Circuit Judge. Appellant Nicholas P. Montano, an inmate at the Iowa Stat e Penitentiary (the "IS P"), filed this 42 U.S.C. § 1983 action against Dale Vande Krol, a prison chaplain, primarily claiming that the clergyman had excluded Montano from Protestant services in vio lation of his rights under the Fir st Amendment and the Religious Freedom Restoration Act of 199 3 ("RFRA"), 42 U.S.C. §§ 2000bb to 2000bb-4 (1994). After a bench trial, th e distri ct court determined Montano had failed to demonstrate that hi s inability to attend P rotestant services infringed upon his sincerely held religious beliefs.

## In a ddition, the district court dismissed Montano's claims against two othe r 1 

## prison off

icials, Paul Hedgepeth and James Helling. On appeal, Montano does no t challenge this aspect of the court's ruling. At the time of trial, on ly one ISP prisoner besides Montano regularly practiced 2 

## Messianic Judaism.
-2- The c ourt thus entered judgment in favor of Vande Krol, and this appea l 1 followed. Based on our conclusion that a prisonchaplain, when performing purely ecclesiastical duties, is not a state act or, we affirm the district court's judgment.

I. BACKGROUND

Montano, though not Jewish by either birth or conversion, practices
a religion known as Messianic Judaism. By his own account, this means tha t he is "a Christian who studies from a Jewish perspective." Montan o embrac es many of the fundamental tenets commonly associated with th e Christian faith, such as the divinity of Jesus Christ, but he also finds it important to observe traditional Jewish holidays and festivals like Ros h Hashana. Accordingly, while his theology borrows elements from Judaism an d Protest ant Christianity, it is apparent that he holds views which ar e offensive to at least some members of both sects. Unable to fin d acceptance within eit her of the two denominations which influence his own beliefs, the prisoner filed suit in federal court alleging a violation of his free exercise rights. At the cr ux of this dispute lies the fact that Messianic Judaism is not an of ficially recognized religion at the ISP. As a result, it s followe rs, who are few in number at the prison, do not enjoy all th e 2 benefi ts accompanying that status. For example, the congregations o f recognized denominations, including Protestantism, conventional Judaism , and Catholicism, enjoy one hour per week in the prison chapel for religiou s
ser vices, two additional hours of meeting time per week for educationa l purposes, an institutional financial account, a lockbox in the chapel, and the right to observe holy

## Rabbi Horn, an unpaid religious advisor, could not have u nilaterally stopped the 3 

## Messiani c Jews from attending Jewish services. As prison chaplain, Vande Krol, a state employee, has general responsibility for managing the cha pel and coordinating the administrati ve aspects of the various religious events. Thus, it is Vande Krol wh o authorizes the passes which allow an individual prisoner to atten d gatherings sponsored by that inmate's chos en denomination. In honoring Rabbi Horn's request, Vande Krol merely discontinued issuing to Messianic Jews passes for conventional Jewish services.

Vand e Krol considers himself to be the pastor for the ISP Protestan t 4 

## congreg ation. Acting in this capacity, he is no different from the volunteer religiou s advisors who minister at the prison.
-3- days. By contrast, adherents of Messianic Judaism, along with followers of other unrecognized faiths, only receive access to a lockbox and one hou r per week in the chapel.
Evidently wishing to avail himself of the additional worship tim e afforded to members of recognized groups, Montano began attending Jewish services at the prison in early 1993. In March of that year, however, the reli gious consultant for Judaism, Rabbi Horn, announced that Messiani c Judaismis "basically a Christian organization" with teachings "contrary to Judaism." Accordi ngly, the rabbi asked Chaplain Vande Krol to prevent Messianic Jews from attending traditi onal Jewish observances. Vande Krol 3

ac ceded to this request and, by memorandum dated March 11, 1993 , promulgated a policy which barred from Jewish services all inmates claimin g as their religion Messianic Judaism. A short while later, Montano began attending Protestant celebra tions. According to Chaplain Vande Krol, who is himself a Protestant and serves as religious leader for that faith, Montano did not in any way disrupt the 4 ceremonies. In fact, Montano initially assumed an instrumental role in th e obse rvances by leading the singing and taking "a very active part i n Christianity for some time." Before long, however, other

## For those denominatio ns outside Vande Krol's own realm of expertise, such as 5 

## conventional Judaism, the chaplain will re move an inmate from a particular group only upon the advice

of the faith's religious advisor. Because Vande Krol is the Protestant coordinator, it was up to him to decide the proper action to be ta ken vis-a-vis Montano. The body of the memorandum reads as follows: 6



## TO THE CHRISTIAN BODY AT ISP:

On N ov[ember] 15, 1994 a meeting of appointed Christian brothers met with Nick Montano to hear the following charges:

That Nic k Montano has been instrumental in spreading a fals e doctrine in the

Church; that he has damaged the unity of the Body of Chr ist; that he has done damage to the witness of Christ t o unsaved; and that he is continuing in a spirit of divisiveness an d unrepentence.

-4- members of the Protes tant group approached Vande Krol with concerns about some beliefs Montano had expressed. In particular, these "inmates of the church body" informedVande Krol that Montano had advised other prisoners that salvation is possible other than through Je sus Christ, that the Bible in its current form is improperly translated, an d that a person must study Jewish background and culture to properly understand the scripture.

Montano's propagation of these views, which Vande Krol deemed to be "fa lse doctrine," prompted the chaplain to convene a meeting of "matur e Christian brothers" to decide whether Montano should continue attendin g Protestant functions. Vande Krol invited certain individuals, including 5 the congregation's democratically elected elders, to discuss Montano' s activities, and he refused Montano's entreaties to allow others to attend. At the conclusion of the gathering, during which the participants had an oppor tunity to personally question Montano about his beliefs, thos e asse mbled decided to preclude Montano from participating in Protestan t events for one year. Everyone at the meeting, with the exception of one inmate, signed a letter informing Montano and other Protestants of th e chosen course of acti on. The document, which Vande Krol wrote, indicated that Montano would be permitted to rejoin the "Body of Christ" only when he displayed a "true repentance." 6

## From the meeting, it was decided by the gathering that Nick Montano was deceptive and confusing in his answers, tha t he had been disruptive to the unity of th e Body of Christ by his teachings and actions, and had bee n (and is) unrepentive of his actions.

It is therefore the conclusion of the group that Nick Montano needs to be removed from the Body of Christ for one year. The purpose and goal of this decision is to 1) emphasize the gravity of his teaching and action, and 2) to hope that Nick will show forth a true repentance so that he may be re-united [sic] with the Church.

It ne eds to also be stated that this gathering does not wish to discourage indept [sic] studies or individually held doctrinal beliefs. However, when that belief structure is lived out in such a way as to mislead othe r Christians or create disunity, th[e]n that behavior forces the Body o f Christ to discipline its membership. App. at 9. With regard to the result desired to be accomplished by the imposed discipline, 7 

## Vande Krol wrote, "Only God knows to what ext[ent] this goal has been reached, and we leave that determination also up to Him."
-5- Montano t hen attempted, unsuccessfully, to gain readmittance to the Protestant services by more fully explaining his predicament, via "inmate
memora nda," to Vande Krol and James Helling, ISP's treatment director

. What eluded Montano's own zealous efforts, however, was attained through the ine xorable passage of time. Toward the close of his year o f excommunication, Montano received a notice from Vande Krol extending to hi m "the opportunity to r eunite with the Christian Body and to participate in corporate worship services." Nonetheless, because his personal belief s 7 remained

## On June 25, 1997, the United States Suprem e Court held that RFRA represents 8 

## an unconstitutional extension of Congress's legislative authority under Section Five of the Fo urteenth Amendment. See City of Boerne v. Flores , 65 U.S.L.W. 4612, 462 0 (U.S. June 25, 1997) ("Broad as the power of Congress is under the Enforcemen t Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance."). It follows, then, tha t Montano's RFRA claim no longer states a viable cause of action.
-6- unaltered, and fearing swift discipline should he choose to rejoin th e Protestant group, Montano declined this invitation and instead filed the instant suit in the United States District Court for the Southern District of Iowa. As relevant to this appeal, Montano's pro se Complaint alleged that Van de Krol violated his constitutional and statutory free exercis e 8 rights by excluding him from Protestant activities. Though the district court found, over the State's protestations, that Vande Krol's conduc t amounted to state action, it decided that the chaplain had not trammeled upon Montano's right to freely exercise his religion. In so holding, the court relied upon the fact that Montano does not claim to be either Jewish
or Protestant. As such, the prison did not burden his religious expressio n when it prohibited hi m from attending services conducted by those faiths. To the contrary, the ISP reasonably attempted to accommodate Montano' s rather unique beliefs by affording Messianic Jews a lockbox and weekly tim e in the chapel.

On appeal, Montano takes issue solely with the district court' s decisi on that Vande Krol did not violate Montano's federally protecte d rights when the chaplain banned him from Protest ant events. After lengthy and careful consideration of the record and the relevant authorities, we have resolved that Vande Krol did not act on behalf of the state when he excluded Montano from the Protestant services. Consequently, we affirm th e district court's judgment in favor of Vande Krol.

## -7-

II. DISCUSSION A bulwark for individual liberties, 42 U.S.C. § 1983 provides legal redress to individuals who suffer violations of their federal rights at th e hands of any "person" who acts "under color" of state law. 42 U.S.C. § 1983 (1994). That being so, a § 1983 plaintiff can prevail only if h e proves he has been subjected to a deprivation of "rights, privileges, or immunit ies secured by the Constitution or laws of the United States. " Comis key v. JFTJ Corp. , 989 F.2d 1007, 1010 (8th Cir. 1993) (quotatio n omitted). And, naturally, the challenged conduct must have been committe d by one who acts "under color of state law." Id. Presently, Montan o conten ds that Chaplain Vande Krol infringed upon his First Amendmen t prerog ative to freely exercise his religion. Like most othe r constitutional provis ions, however, the First Amendment, which is binding on the states by virt ue of the Fourteenth Amendment's Due Process Clause,
see Un ited Bhd. of Carpenters, Local 610 v. Scott , 463 U.S. 825, 83 1 (1983), erects a shield exclusively against governmental misconduct, see id. It provides no protection against private behavior, no matter ho w egregious. Consequently, this deceptively complex appeal requires us to app ly the confused and confusing concepts attendant to the state actio n analysis. In as certaining the presence of state action, we must examine th e record to determine whether "the conduct alleged ly causing the deprivation of a f ederal right [is] fairly attributable to the State." Lugar v

. Edmondson Oil Co. , 457 U.S. 922, 937 (1982). Resolving this questio n entails a journey down a particularly fact-boundpath, see id. at 939, but the Supreme Court has identified two legal touch stones to provide guidance along the way. To begin with, there can be no "fair attribution" unless the alleged constitutional violation was "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 per son for whom the State is responsible." Id. at 937. Furthermore, "the par ty charged with the deprivation must be a person who may fairly be said to be a state actor. This ma y be because he is a state official, because he has acted together with or has obtained

## The anal ysis in Polk County concentrated on whether a public defender act s 9 

## under color of state law for purposes of § 1983. See Polk County , 454 U.S. at 32 2 n.12. Less than one year later, in Lugar , the Court clarified that the state action an d color of state law questions are, for most practical purposes, identical. See Lugar , 457 U.S. a t 935. To the extent that the "under color of state law" requirement migh t the oretically encompass conduct that would not qualify as state action, cf. id. at 93 5 n.18, th is exigency is currently irrelevant. Therefore, in keeping with this Court' s normal practice, we sometimes use the terms interchangeably in this opinion.
-8- significant aid from state officials, or because his conduct is otherwise chargeable to the State." Id. ; see also Roudybu sh v. Zabel , 813 F.2d 173, 176-77 (8th Cir. 1987) (repeating two part test).

These two distinct, but related, components of the fair attribution tes t ordinarily "collapse into each other when the claim of a constit utional deprivation is directed against a party whose officia l charact er is such as to lend the weight of the State to his decisions. " Lugar , 457 U.S. at 937. It is not especially surprising, then, tha t federa l courts, including our own, have consistently held that "stat e employment is generally sufficient to render the defendant a state actor." Id. at 936 n.18; see also Gentry v. City of Lee's Summit, Missouri , 10 F.3 d 1340, 1342 (8th Cir. 1993). Were the correlation between public employmen t and state action absolute, our task would be an easy one, for there can be
no doubt that Chaplain Vande Krol is a state employee. As it happens , though, the associati on of these two concepts, while assuredly strong, is less th an perfect. See Polk County v. Dodson , 454 U.S. 312, 324 (1981 ) (concluding that stat e cannot be deemed responsible for acts committed by
a public defender when "exercising her independent professional judgment in a criminal proceeding"); cf. Meeker v. Kerche r , 782 F.2d 153, 155 (10th Cir. 1 986) (extending Polk County to situation involving guardian a d litum). Thus, even when an officer of the state is named as a defendant in a § 1983 lawsuit, we must refrain from automatically assuming th e exi stence of state action. Instead, we must stay focused upon th e underlying concern which governs our analysis in all cases such as this: whether the conduct at issue is "fairly attributable" to the state.

Withi n this legal context, we find the Supreme Court's opinion i n Polk County to be profoundly instructive. In concluding that a publi c de fender does not act "under color of state law" while providin g representation to an indigent criminal defendant, 9

## -9-

the Court emphasized that the job is marked by "functions and obligations in no w ay dependent on state authority." Polk County , 454 U.S. at 318

. Utiliz ing this functional approach, the Court explained that the publi c defender's employment status was not in itself adequate to establish the degree of governmenta l participation necessary to support a viable § 1983
cause of action. See id. at 321. That the defendant was on the state's payroll was "certainly a relevant factor" in the color of law equation, bu t its pe rsuasive force was overcome by two important attributes whic h characterize the posi tion in question. See id. First of all, because an attorney's overriding obligation requires him to make decisions grounded in his client's best interests, a public defender is not, and cannot be, subjec t to the same degree of administrative supervision as othe r governmental employees. See id. Rather, "a public defender works under
canons of professional responsibility that mandate his exercise o f independent judgment on behalf of the client." Id. Second, the Cour t found it significant that the state is obliged, under the Sixth an d Four teenth Amendments to the Constitution, to respect the professiona l independence of a pub lic defender. See id. at 321-22. This ensures that the representation provided to one charged with a crime will be "free of state control." Id. at 322. Therefore, unlike most persons who work for the government, a public defender operates withi n a sphere of independence allowing him to function not as the state's emis sary, but as its opponent. See id. at 319-22. Under these circumstances, the Court held that a publi c defender does not act under color of state law when "exercising he r independent professio nal judgment in a criminal proceeding." Id. at 324.

## -10- Since issuing its opinion in Polk Co unty , the Supreme Court has made it abundantly clear that the case does not remove all professionals from the reach of § 1983; to the contrary, professionals in the state's employ can, and regularly will, qualify as state actors

. See West v. Atkins , 487 U.S. 42, 51-52 (1988). In West , the Court reaff irmed that a prison doctor doubles as a state actor when engaging in the medical treatment of inmates

. See id. at 54. The Court stressed that a physician, albeit ethically boun d to make independent medical judgments on behalf of his patients, canno t pro perly be likened to a public defender. See id. at 51-52. The ke y difference between the two posts is that a priso n doctor, as distinguished from a defense attorn ey, does not face the state as an adversary; rather, the health care afforded to inmates is a result of "close cooperation" and
a "j oint effort" between medical professionals and correctiona l administrators. See id. at 51. Consequently, p hysicians working in state pri sons, who help to fulfill the state's Eighth Amendment obligation t o inmates and who typically are the only health professionals available to
care for incarcerated persons, are persons who may fairly be said to b e state actors. See id. at 54-55.

We are now confronted with the applicability of Polk County t o another class of professionals, the clergy. In attempting to discer n whether ministers who are members of a prison staff should for all purpose s be consid ered state actors, we have taken heed of the reality that Pol k County "is the only c ase in which th[e Supreme] Court has determined that
a person who is employed by the State and who is sued under § 1983 fo r abusing hi s position in the performance of his assigned tasks was no t acting under color of state law." West , 487 U.S. at 50. We are als o mindful that subsequent decisions have in no uncertain terms limited the pote ntial scope of Polk County

. See id. at 50-52; Gentry , 10 F.3d a t 1342-43. Nonetheless , Polk County has neither been reversed outright nor expressly limited to its facts, and we believe the reasoning contained in tha t decision provides valuable insight to the proper resolution of th e dispute currently before us.

## Indeed, states might commit a technical violation of the Establishment Clause 10 

## by even hir ing prison chaplains. Nonetheless, this is condoned as a permissibl e ac commodationfor persons whose free exercise rights would otherwise suffer. Se e School Dist. v. Schempp , 374 U.S. 203, 296-98 (1963) (Brennan, J., concurring) ; Johnson-Bey v. Lane , 863 F.2d 1308 , 1312 (7th Cir. 1988); Florey v. Sioux Falls Sch. Di st. 49-5 , 619 F.2d 1311, 1329 & n.6 (8th Cir.)(McMillian, J., dissenting), cert

. denied , 449 U.S. 987 (1980). Having made religious leaders available to inmates , however, a state cannot "advanc[e] religion through indoctrination." Agostini v. Felton , 65 U.S.L.W. 4524, 4530 (U.S. June 23, 1997). As a consequence, the state canno t compe lor even encourage inmates' attendance at religious services, and it mos t certainly cannot attempt to influence the religious messages which the chaplains convey to the prisoners.
-11- Applying the functional view of state action announced in Polk County and endorsed by subsequent courts, see, e.g. , Georgia v. McCollum , 505 U.S

. 42, 54 (1992) ("[T]he determination whether a public defender is a state actor for a particular purpose depends on the nature and context of th e function he is performing."), we do not think that the state can be held accountable for conduct undertaken by a prison chaplain acting purely in
a clerical capacity. Just as a public defender performs many function s which are free from the shackles of state control, a prison chaplain , although a state empl oyee, sometimes behaves in ways which are beyond the bounds of governmental authority. In matters of faith, a pastor, probably
even more so than an attorney acting on behalf of a client, is no t
answer able to an administrative supervisor. The teachings endorsed an d practic ed by recognized spiritual leaders are not, and should not be , subject to governmental pressures, and the canons which underlie most of the wo rld's denominations are typically thought to derive from divine , rather th an worldly, inspiration. As was the case in Polk County , thi s independence is memorialized in our Constitution. It is hard to imagine any greater affront to the First Amendment than a state's attempt t o influence a prison ch aplain's interpretation and application of religious dogma. During the course of his employment, a prison chaplain might ,

10

amo ng many other things, deliver sermons, take confessions, gran t forgiveness for sins, and counsel inmates on the proper reading of sacred texts. It is

## A situation involving a prison chaplain lies somew here between the adversarial 11 

## relationship which is the lync hpin of a public defender's association with the state, see PolkCounty , 454 U.S. at 318-20, and the spirit of cooperation in which priso n physicians make decisions affecting an inmate's medical treatment, see West , 487 U.S. at51. At least insofar as matters of religious theory are implicated, however, prison chaplains enjoy comp lete protection from the prospect of governmental intrusion, and there is no "joint effort" between prison officials and the clergy concerning spiritua l questions. Cf. West , 487 U.S. at 51 (noting "joint effort" between medical personnel and othe r prison officials on health care matters). Given a prison chaplain' s constitutionally mandated independence on matters of doctrinal significance, we find this case to be more akin to Polk County than to West

. Cf., e.g. , West , 487 U.S. at 56 n.15 (noting that financial resources and security measures can have a significan t impact on the provision of medical services in prisons).
-12- peculiarly difficult to detect any color of state law in such activities. Cf. P olk County , 454 U.S. at 320 (finding it "peculiarly difficult" t o detec t color of state law in various activities undertaken by a publi c defender). The case before us is illustrative of these points. Concerned that Montano was spreading a false doctrine that might have a negative influenc e
on "new or less mature Christians," Chaplain Vande Krol, in his role as th e head of the prison's Protestant congregation, convened a meeting of "matur e Christian brothers" to determine what, if any, disciplinary action might be appropriate. Upon deliberation, the group, w ith Vande Krol's approval, decided to excommunicate Montano for one year in order to "emphasize the gravi ty of [Montano's] teaching and action" and to induce a "tru e repenta nce." In our nation, this is simply not the type of decision i t fall s upon the government to make. Absent any showing that Vande Kro l 11 rel ied upon religious doctrine as a subterfuge and deceptively used th e excommunication process to impose

## Montano apparently concedes that Va nde Krol's action was spiritual in nature, 12 

## and he has not demonstrated that the chaplain's "private" decision should be declared state action through any of the methods normally available to effect that conversion

. See Lugar , 4 57 U.S. at 939 (reciting ways in which private conduct might be deemed state action). We realize that this conclusion seems to conflict with an op inion from the Sixth 13 

## Circuit. See Phelps v. Dunn , 965 F.2d 93, 101-02 (6th Cir. 1992). In Phelps , the court reversed a district court's entry of summary judgment for various prison officials , stating that a trial was necessary to determine whether an inmate had actually bee n denied attendance at worship services and, if so, whether securi ty concerns justified his exclusion. Id. at 99-101. At the close of its decision, the court expressed its view that
avolunteer chaplain at the prison was a state actor. See id. at 101-02. The court did not even refer to Polk County , however, and it placed much relian ce on the fact that the pastor had signed a contract with the prison which precluded him from denyin g pri soners access to services based on "his own religious beliefs." Id. at 102. It wa s on ly"under th[o]se factual circumstances," id. at 102, which involved the allege d misapplication of an institutional rule and which have not been shown to exist in this case, that the Sixth Circuit found state action.
-13- the wi ll of prison administrators, we cannot say that the expulsion o f 12 Montano from the Protestant group is fairly attributable to the state. In sum, we conclude that a prison chaplain, even if a full-time state employee, is not a state actor when he engages in inherently ecclesiastica l functions (that is, when he performs spiritual duties as a leader in his church). By disciplining Montano as a result of t he prisoner's perceived

13 transgression of chur ch law, Vande Krol irrefutably acted in his capacity
as pas tor for the Protestant congregation. In contrast to th e administrative and managerial tasks Vande Krol is required to perform as prison chaplain, whic h clearly would be fairly attributable to the state,
see Polk County , 454 U.S. at 324-25 (observing that a public defender may act un der color of state law when performing administrative duties) , interpretation and implementation of church doctrine

## Aseparate line of decisions from our Court buttresses this result. In a series 14 

## of cases, we have noted that "an application of religious doctrine by a recognize d spiritual lead er of the relevant faith . . . is beyond the constitutional power of the civil courts to review." Bear v. Nix , 977 F.2d 1291, 1294 (8th Cir. 1992); Scharon v. St. Luke's Episcopal Presbyterian Hosps. , 929 F.2d 360, 363 (8th Cir. 1991). These cases offer inferential support for our decision to affirm the district court

. -14- do not constitute sta te action. As a result, Montano has failed to state a justiciable cause of action under § 1983. 14

III. CONCLUSION

We conclu de that Chaplain Vande Krol's decision, premised solely on rel igious grounds, to excommunicate Montano for one year is not conduc t that can be fairly at tributed to the state. Accordingly, Montano has not established the state action necessary to substantiate the allege d violation of his First Amendment rights. We the refore affirm the district court's judgment in favor of Vande Krol.

AFFIRMED.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.