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 State

Penitentiary (the "ISP"), 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 violation of his rights under

the First Amendment and the Religious Freedom Restoration Act of 1993

("RFRA"), 42 U.S.C. §§ 2000bb to 2000bb-4 (1994). After a bench trial, the

district court determined Montano had failed to demonstrate that his

inability to attend Protestant services infringed upon his sincerely held

religious beliefs.
In addition, the district court dismissed Montano's claims against two other

1

prison officials, Paul Hedgepeth and James Helling. On appeal, Montano does not

challenge this aspect of the court's ruling.

At the time of trial, only one ISP prisoner besides Montano regularly practiced 2

Messianic Judaism.

-2-

The court thus entered judgment in favor of Vande Krol, and this appeal

1

followed. Based on our conclusion that a prison chaplain, when performing

purely ecclesiastical duties, is not a state actor, 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 that

he is "a Christian who studies from a Jewish perspective." Montano

embraces many of the fundamental tenets commonly associated with the

Christian faith, such as the divinity of Jesus Christ, but he also finds

it important to observe traditional Jewish holidays and festivals like Rosh

Hashana. Accordingly, while his theology borrows elements from Judaism and

Protestant Christianity, it is apparent that he holds views which are

offensive to at least some members of both sects. Unable to find

acceptance within either 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 crux of this dispute lies the fact that Messianic Judaism is

not an officially recognized religion at the ISP. As a result, its

followers, who are few in number at the prison, do not enjoy all the

2

benefits accompanying that status. For example, the congregations of

recognized denominations, including Protestantism, conventional Judaism,

and Catholicism, enjoy one hour per week in the prison chapel for religious

services, two additional hours of meeting time per week for educational

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 unilaterally stopped the 3

Messianic Jews from attending Jewish services. As prison chaplain, Vande Krol, a

state employee, has general responsibility for managing the chapel and coordinating the

administrative aspects of the various religious events. Thus, it is Vande Krol who

authorizes the passes which allow an individual prisoner to attend gatherings sponsored

by that inmate's chosen denomination. In honoring Rabbi Horn's request, Vande Krol

merely discontinued issuing to Messianic Jews passes for conventional Jewish services.

Vande Krol considers himself to be the pastor for the ISP Protestant

4

congregation. Acting in this capacity, he is no different from the volunteer religious

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 hour

per week in the chapel.

Evidently wishing to avail himself of the additional worship time

afforded to members of recognized groups, Montano began attending Jewish

services at the prison in early 1993. In March of that year, however, the

religious consultant for Judaism, Rabbi Horn, announced that Messianic

Judaism is "basically a Christian organization" with teachings "contrary

to Judaism." Accordingly, the rabbi asked Chaplain Vande Krol to prevent

Messianic Jews from attending traditional Jewish observances. Vande Krol 3

acceded to this request and, by memorandum dated March 11, 1993,

promulgated a policy which barred from Jewish services all inmates claiming

as their religion Messianic Judaism.

A short while later, Montano began attending Protestant celebrations.

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 the

observances by leading the singing and taking "a very active part in

Christianity for some time." Before long, however, other
For those denominations outside Vande Krol's own realm of expertise, such as 5

conventional Judaism, the chaplain will remove 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 taken vis-a-vis Montano.

The body of the memorandum reads as follows: 6

TO THE CHRISTIAN BODY AT ISP:

On Nov[ember] 15, 1994 a meeting of appointed Christian brothers met

with Nick Montano to hear the following charges:

That Nick Montano has been instrumental in spreading a false

doctrine in the Church; that he has damaged the unity of the Body

of Christ; that he has done damage to the witness of Christ to

unsaved; and that he is continuing in a spirit of divisiveness and

unrepentence.

-4-

members of the Protestant group approached Vande Krol with concerns about

some beliefs Montano had expressed. In particular, these "inmates of the

church body" informed Vande Krol that Montano had advised other prisoners

that salvation is possible other than through Jesus Christ, that the Bible

in its current form is improperly translated, and 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

"false doctrine," prompted the chaplain to convene a meeting of "mature

Christian brothers" to decide whether Montano should continue attending

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

opportunity to personally question Montano about his beliefs, those

assembled decided to preclude Montano from participating in Protestant

events for one year. Everyone at the meeting, with the exception of one

inmate, signed a letter informing Montano and other Protestants of the

chosen course of action. 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, that he had been disruptive to the

unity of the Body of Christ by his teachings and actions, and had been

(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 needs 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 other

Christians or create disunity, th[e]n that behavior forces the Body of

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 then attempted, unsuccessfully, to gain readmittance to the

Protestant services by more fully explaining his predicament, via "inmate

memoranda," to Vande Krol and James Helling, ISP's treatment director.

What eluded Montano's own zealous efforts, however, was attained through

the inexorable passage of time. Toward the close of his year of

excommunication, Montano received a notice from Vande Krol extending to him

"the opportunity to reunite with the Christian Body and to participate in

corporate worship services." Nonetheless, because his personal beliefs

7

remained 
On June 25, 1997, the United States Supreme Court held that RFRA represents 8

an unconstitutional extension of Congress's legislative authority under Section Five of

the Fourteenth Amendment. See City of Boerne v. Flores, 65 U.S.L.W. 4612, 4620

(U.S. June 25, 1997) ("Broad as the power of Congress is under the Enforcement

Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to

maintain separation of powers and the federal balance."). It follows, then, that

Montano's RFRA claim no longer states a viable cause of action. 

-6-

unaltered, and fearing swift discipline should he choose to rejoin the

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 Vande Krol violated his constitutional and statutory free exercise

8

rights by excluding him from Protestant activities. Though the district

court found, over the State's protestations, that Vande Krol's conduct

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 expression

when it prohibited him 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 time

in the chapel.

On appeal, Montano takes issue solely with the district court's

decision that Vande Krol did not violate Montano's federally protected

rights when the chaplain banned him from Protestant 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 the

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 the

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 he

proves he has been subjected to a deprivation of "rights, privileges, or

immunities secured by the Constitution or laws of the United States."

Comiskey v. JFTJ Corp., 989 F.2d 1007, 1010 (8th Cir. 1993) (quotation

omitted). And, naturally, the challenged conduct must have been committed

by one who acts "under color of state law." Id. Presently, Montano

contends that Chaplain Vande Krol infringed upon his First Amendment

prerogative to freely exercise his religion. Like most other

constitutional provisions, however, the First Amendment, which is binding

on the states by virtue of the Fourteenth Amendment's Due Process Clause,

see United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 831

(1983), erects a shield exclusively against governmental misconduct, see

id. It provides no protection against private behavior, no matter how

egregious. Consequently, this deceptively complex appeal requires us to

apply the confused and confusing concepts attendant to the state action

analysis.

In ascertaining the presence of state action, we must examine the

record to determine whether "the conduct allegedly causing the deprivation

of a federal right [is] fairly attributable to the State." Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982). Resolving this question

entails a journey down a particularly fact-bound path, see id. at 939, but

the Supreme Court has identified two legal touchstones 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 person for whom the State is responsible." Id. at 937.

Furthermore, "the party charged with the deprivation must be a person who

may fairly be said to be a state actor. This may be because he is a state

official, because he has acted together with or has obtained 
The analysis in Polk County concentrated on whether a public defender acts

9

under color of state law for purposes of § 1983. See Polk County, 454 U.S. at 322

n.12. Less than one year later, in Lugar, the Court clarified that the state action and

color of state law questions are, for most practical purposes, identical. See Lugar, 457

U.S. at 935. To the extent that the "under color of state law" requirement might

theoretically encompass conduct that would not qualify as state action, cf. id. at 935

n.18, this 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 Roudybush 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

test ordinarily "collapse into each other when the claim of a

constitutional deprivation is directed against a party whose official

character 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, that

federal courts, including our own, have consistently held that "state

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.3d

1340, 1342 (8th Cir. 1993). Were the correlation between public employment

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 association of these two concepts, while assuredly strong, is

less than perfect. See Polk County v. Dodson, 454 U.S. 312, 324 (1981)

(concluding that state cannot be deemed responsible for acts committed by

a public defender when "exercising her independent professional judgment

in a criminal proceeding"); cf. Meeker v. Kercher, 782 F.2d 153, 155 (10th

Cir. 1986) (extending Polk County to situation involving guardian ad

litum). Thus, even when an officer of the state is named as a defendant

in a § 1983 lawsuit, we must refrain from automatically assuming the

existence of state action. Instead, we must stay focused upon the

underlying concern which governs our analysis in all cases such as this:

whether the conduct at issue is "fairly attributable" to the state.

Within this legal context, we find the Supreme Court's opinion in

Polk County to be profoundly instructive. In concluding that a public

defender does not act "under color of state law" while providing

representation to an indigent criminal defendant,9
-9-

the Court emphasized that the job is marked by "functions and obligations

in no way dependent on state authority." Polk County, 454 U.S. at 318.

Utilizing this functional approach, the Court explained that the public

defender's employment status was not in itself adequate to establish the

degree of governmental 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, but

its persuasive force was overcome by two important attributes which

characterize the position 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,

subject to the same degree of administrative supervision as other

governmental employees. See id. Rather, "a public defender works under

canons of professional responsibility that mandate his exercise of

independent judgment on behalf of the client." Id. Second, the Court

found it significant that the state is obliged, under the Sixth and

Fourteenth Amendments to the Constitution, to respect the professional

independence of a public 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 within a sphere of independence

allowing him to function not as the state's emissary, but as its opponent.

See id. at 319-22. Under these circumstances, the Court held that a public

defender does not act under color of state law when "exercising her

independent professional judgment in a criminal proceeding." Id. at 324.
-10-

Since issuing its opinion in Polk County, 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 reaffirmed 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 bound

to make independent medical judgments on behalf of his patients, cannot

properly be likened to a public defender. See id. at 51-52. The key

difference between the two posts is that a prison doctor, as distinguished

from a defense attorney, does not face the state as an adversary; rather,

the health care afforded to inmates is a result of "close cooperation" and

a "joint effort" between medical professionals and correctional

administrators. See id. at 51. Consequently, physicians working in state

prisons, who help to fulfill the state's Eighth Amendment obligation to

inmates and who typically are the only health professionals available to

care for incarcerated persons, are persons who may fairly be said to be

state actors. See id. at 54-55.

We are now confronted with the applicability of Polk County to

another class of professionals, the clergy. In attempting to discern

whether ministers who are members of a prison staff should for all purposes

be considered state actors, we have taken heed of the reality that Polk

County "is the only case in which th[e Supreme] Court has determined that

a person who is employed by the State and who is sued under § 1983 for

abusing his position in the performance of his assigned tasks was not

acting under color of state law." West, 487 U.S. at 50. We are also

mindful that subsequent decisions have in no uncertain terms limited the

potential scope of Polk County. See id. at 50-52; Gentry, 10 F.3d at

1342-43. Nonetheless, Polk County has neither been reversed outright nor

expressly limited to its facts, and we believe the reasoning contained in

that decision provides valuable insight to the proper resolution of the

dispute currently before us.
Indeed, states might commit a technical violation of the Establishment Clause 10

by even hiring prison chaplains. Nonetheless, this is condoned as a permissible

accommodation for persons whose free exercise rights would otherwise suffer. See

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.

Dist. 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 cannot

compel or even encourage inmates' attendance at religious services, and it most

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 the

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 functions

which are free from the shackles of state control, a prison chaplain,

although a state employee, 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 not

answerable to an administrative supervisor. The 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 world's denominations are typically thought to derive from divine,

rather than worldly, inspiration. As was the case in Polk County, this

independence is memorialized in our Constitution. It is hard to imagine

any greater affront to the First Amendment than a state's attempt to

influence a prison chaplain's interpretation and application of religious

dogma. During the course of his employment, a prison chaplain might,

10

among many other things, deliver sermons, take confessions, grant

forgiveness for sins, and counsel inmates on the proper reading of sacred

texts. It is 
A situation involving a prison chaplain lies somewhere between the adversarial 11

relationship which is the lynchpin of a public defender's association with the state, see

Polk County, 454 U.S. at 318-20, and the spirit of cooperation in which prison

physicians make decisions affecting an inmate's medical treatment, see West, 487 U.S.

at 51. At least insofar as matters of religious theory are implicated, however, 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. Cf. West, 487 U.S. at 51 (noting "joint effort" between medical personnel

and other 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 significant

impact on the provision of medical services in prisons).

-12-

peculiarly difficult to detect any color of state law in such activities.

Cf. Polk County, 454 U.S. at 320 (finding it "peculiarly difficult" to

detect color of state law in various activities undertaken by a public

defender).

The case before us is illustrative of these points. Concerned that

Montano was spreading a false doctrine that might have a negative influence

on "new or less mature Christians," Chaplain Vande Krol, in his role as the

head of the prison's Protestant congregation, convened a meeting of "mature

Christian brothers" to determine what, if any, disciplinary action might

be appropriate. Upon deliberation, the group, with Vande Krol's approval,

decided to excommunicate Montano for one year in order to "emphasize the

gravity of [Montano's] teaching and action" and to induce a "true

repentance." In our nation, this is simply not the type of decision it

falls upon the government to make. Absent any showing that Vande Krol

11

relied upon religious doctrine as a subterfuge and deceptively used the

excommunication process to impose
Montano apparently concedes that Vande 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, 457 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 opinion 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 been

denied attendance at worship services and, if so, whether security concerns justified his

exclusion. Id. at 99-101. At the close of its decision, the court expressed its view that

a volunteer 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 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." Id. at 102. It was

only "under th[o]se factual circumstances," id. at 102, which involved the alleged

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 will of prison administrators, we cannot say that the expulsion of

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 ecclesiastical

functions (that is, when he performs spiritual duties as a leader in his

church). By disciplining Montano as a result of the prisoner's perceived 13

transgression of church law, Vande Krol irrefutably acted in his capacity

as pastor for the Protestant congregation. In contrast to the

administrative and managerial tasks Vande Krol is required to perform as

prison chaplain, which clearly would be fairly attributable to the state,

see Polk County, 454 U.S. at 324-25 (observing that a public defender may

act under color of state law when performing administrative duties),

interpretation and implementation of church doctrine 
A separate 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 recognized

spiritual leader 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 state action. As a result, Montano has failed to state

a justiciable cause of action under § 1983.14

III. CONCLUSION

We conclude that Chaplain Vande Krol's decision, premised solely on

religious grounds, to excommunicate Montano for one year is not conduct

that can be fairly attributed to the state. Accordingly, Montano has not

established the state action necessary to substantiate the alleged

violation of his First Amendment rights. We therefore affirm the district

court's judgment in favor of Vande Krol.

AFFIRMED.

A true copy.

Attest:

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