FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS FLORER,
Plaintiff-Appellant,
v.
No. 07-35866
CONGREGATION PIDYON SHEVUYIM,
N.A. Contract Chaplaincy; GARY D.C. No.
CV-06-01465-RSM
FRIEDMAN, Contract Chaplain;
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 May 5, 2010
Before: Robert R. Beezer, Ronald M. Gould and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Gould
6719
FLORER v. CONGREGATION 6723
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, Washing-
ton, for the plaintiff-appellant.
Robert M. McKenna, Washington Attorney General; Sara J.
Olson (argued), Assistant Washington Attorney General; and
Andrew D. Tsoming (intern), Olympia, Washington, for the
defendants-appellees.
OPINION
GOULD, Circuit Judge:
Dennis Florer, a Washington State prisoner, appeals the
district court’s summary judgment in Florer’s 42 U.S.C.
§ 1983 and Religious Land Use and Institutionalized Persons
Act of 2000 (“RLUIPA”) action against Congregation
Shevuyim, N.A., a Jewish organization that contracted with
the prison to provide Jewish religious services to prisoners;
Jewish Prisoners Services International, an outreach program
of the congregation; and Gary Friedman, president of the con-
gregation and chairman of Jewish Prisoners Services Interna-
tional (collectively “Congregation”). Florer alleged that the
defendants improperly denied or substantially burdened his
access to Jewish religious materials and services. The district
court granted summary judgment for the appellees, conclud-
6724 FLORER v. CONGREGATION
ing that they were not liable because they were private par-
ties who did not act under color of state law. We have juris-
diction pursuant to 28 U.S.C. § 1291. Because we conclude,
viewing the evidence in the light most favorable to Florer,
that these private parties acted under color of state law, we
reverse the district court and remand for further proceedings
not inconsistent with this opinion.
I
Congregation Pidyon Shevuyim, N.A., through its presi-
dent, Gary Friedman, contracted with the Washington Depart-
ment of Corrections (“DOC”) to provide Jewish religious
services to prisoners through an outreach program called Jew-
ish Prisoners Services International. The contract required that
Congregation provide “religious training on essential Jewish
religious practices to Department of Corrections’ offenders
who request this service. The services will include religious
instruction and assistance with Jewish problems in all prisons
located in Washington State.” Later, the parties amended this
provision by adding, “Services will be open to all offenders,
however, the Jewish authorities will determine who can par-
ticipate in liturgical related activities.”
The contract required that Congregation comply with DOC
policies as well as the contract’s General Terms and Condi-
tions. In particular, DOC Policy Directive 560.200 recognized
that prisoners have “inherent and constitutionally protected
rights . . . to believe, express, and exercise the religion of their
individual choice.” It also stated that prisoners should have
reasonable access to religious activities and religious instruc-
tion, including access to printed materials of a religious
nature. Policy Directive 560.200 provided that prisoners may
possess religious materials if they, among other things,
request those materials “through the facility Chaplain.”
DOC Policy Directive 560.100 stated that contract chap-
lains, such as Congregation, “are expected to attend to the
FLORER v. CONGREGATION 6725
spiritual needs of offenders for their specific denomination or
religious group by performing [several listed] functions,”
including providing spiritual guidance to offenders as
requested. It also required that contract chaplains “[a]dvise
[the] facility Chaplain about spiritual, moral, and social con-
cerns of offenders” and “[w]ork under the guidance and
supervision of the facility Chaplain.”
In 2002, Congregation President Friedman sent a letter to
a DOC facility chaplain responding to an inquiry about non-
Jewish prisoners participating in Jewish activities and pos-
sessing Jewish religious items. The letter explained that the
DOC chaplains had been “somewhat lenient” about allowing
non-Jewish prisoners to participate in Jewish activities, and
Friedman noted an increase in prisoner legal challenges to the
receipt of Jewish materials and food. Friedman stated in the
letter that “Jewish law” mandates that a person is Jewish only
if that person was born to a Jewish mother or formally con-
verted to the faith. Allowing non-Jewish prisoners to partici-
pate in Jewish activities, Friedman explained, presented
challenges to the orderly operation of correctional facilities
and created undue burdens on the Jewish chaplaincy pro-
grams. Friedman suggested in the letter that the sole solution
was to provide religious materials and services only to those
prisoners who “require them as obligations of their bona fide
faiths,” that is, to prisoners that were born to a Jewish mother
or formally converted. Friedman offered to assist the DOC if
it had “difficulty in determining which inmates are Jewish.”1
According to Florer, three months after receiving the letter,
the DOC implemented a new policy stating that while “the
Department and its agent will not attempt to evaluate the [reli-
gious] sincerity of the offender or the religious tradition,” it
may request “[v]erification from the Clergy of the specified
1
Friedman wrote the letter on DOC letterhead and identified himself in
the letter as a “DOC Jewish Chaplain,” but he noted that much of the con-
tents were his personal opinion.
6726 FLORER v. CONGREGATION
religious denomination” before allowing prisoners to partici-
pate in religious activities or possess religious materials.
Florer also asserted that Congregation thereafter determined
whether the prisoners were Jewish according to Congrega-
tion’s understanding of Jewish law and that the DOC adopted
Congregation’s determinations.
Florer completed a DOC religious-preference form identi-
fying his religious preference as Jewish and requested a
kosher diet, a Torah, a Jewish calendar, and consultation with
a rabbi. The facility chaplain referred his requests to Congre-
gation. Florer thereafter sent several letters to Congregation
complaining about his kosher diet, asking for assistance to
obtain a Torah, and seeking consultation with a rabbi. Florer
declared that on at least one occasion he telephoned Friedman
and requested a Torah and a Jewish calendar. Florer also
declared that Friedman said he would provide Florer with
those items if Friedman first determined that Florer was actu-
ally Jewish. Friedman admitted that he asked Florer if Florer
was born Jewish or formally converted, and Friedman mailed
to Florer a questionnaire to assist in this determination. Florer
did not complete the questionnaire, and he did not receive the
requested religious materials or services.
After exhausting his administrative remedies, Florer filed a
pro se complaint in the district court alleging that Congrega-
tion violated his First Amendment rights as well as the
RLUIPA, 42 U.S.C. § 2000cc, by refusing to provide him
access to Jewish religious materials and instruction.
Congregation filed a motion to dismiss for, among other
things, failure to name a state actor, and the court converted
that motion into a motion for summary judgment. Florer also
moved for summary judgment. The district court adopted the
magistrate judge’s recommendation to grant summary judg-
ment in favor of Congregation. The district court held that
even though Florer presented evidence that the DOC relied on
Congregation’s input in determining whether prisoners should
FLORER v. CONGREGATION 6727
be classified as Jewish, Congregation was not a state actor.
The district court held that Congregation’s decision not to
provide religious materials to Florer could not be attributable
to the state, that the evidence did not support a conclusion that
there was joint activity between the DOC and Congregation,
and that the Eighth Circuit’s reasoning in Montano v. Hedge-
peth, 120 F.3d 844 (8th Cir. 1997), suggested that because
Congregation’s conduct involved inherently ecclesiastical
functions, that conduct could not be fairly attributable to the
state. Florer timely appealed the district court’s judgment.
II
We review de novo a district court’s decision to grant sum-
mary judgment. FTC v. Stefanchik, 559 F.3d 924, 927 (9th
Cir. 2009). Our review is governed by the same standard used
by the trial court under Federal Rule of Civil Procedure 56(c).
Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110,
1131 (9th Cir. 2003). We must determine, viewing the evi-
dence in the light most favorable to Florer, whether there are
any genuine issues of material fact and whether the district
court correctly applied the substantive law. Olsen v. Idaho
State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
We decide the limited issue of whether Congregation acted
under color of state law, the sole issue upon which the district
court grounded its decision.
III
[1] To state a claim under 42 U.S.C. § 1983, a plaintiff
must show in part that the defendant acted under color of state
law.2 Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001).
Similarly, a plaintiff in an RLUIPA action must show that the
2
“Conduct that is actionable under the Fourteenth Amendment as State
action is also action under color of State law supporting a suit under
§ 1983.” Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002).
6728 FLORER v. CONGREGATION
“government” has imposed a substantial burden on the plain-
tiff’s religious exercise. 42 U.S.C. § 2000cc-1(a). The term
“government” is defined, in part, as “any other person acting
under color of state law.” Id. § 2000cc-5(4)(A)(iii).
[2] This case involves a special set of considerations that
impact whether a private party has acted under color of state
law. To determine whether a private actor acts under color of
state law, we must evaluate whether the alleged infringement
of federal rights is “fairly attributable” to the government
even though committed by private actors. Kirtley v. Rainey,
326 F.3d 1088, 1092 (9th Cir. 2003); see also West v. Atkins,
487 U.S. 42, 49 (1988) (“To constitute state action, the depri-
vation must be caused by the exercise of some right or privi-
lege created by the State or by a person for whom the State
is responsible, and the party charged with the deprivation
must be a person who may fairly be said to be a state actor.”
(internal punctuation omitted)). Determining what is fairly
attributable to the government “is a matter of normative judg-
ment, and the criteria lack rigid simplicity. . . . [N]o one fact
can function as a necessary condition across the board for
finding state action; nor is any set of circumstances absolutely
sufficient, for there may be some countervailing reason
against attributing activity to the government.” Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288,
295-96 (2001). There must be “such a close nexus between
the State and the challenged action that seemingly private
behavior may be fairly treated as that of the State itself.” Id.
at 295 (internal quotation marks omitted); see also Single
Moms, Inc. v. Mont. Power Co., 331 F.3d 743, 747 (9th Cir.
2003).
[3] “Because of the fact-intensive nature of the inquiry,
courts have developed a variety of approaches” to assess
whether a private party has acted under color of state law. Lee
v. Katz, 276 F.3d 550, 554 (9th Cir. 2002). We have recog-
nized at least four such criteria, or tests: (1) public function,
(2) joint action, (3) governmental compulsion or coercion, and
FLORER v. CONGREGATION 6729
(4) governmental nexus. Kirtley, 326 F.3d at 1092; Sutton v.
Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36 (9th
Cir. 1999). There is no precise formula for determining
whether a private party is a state actor, but the decisions stress
the need for a close nexus between the state and the chal-
lenged conduct. See Brentwood, 531 U.S. at 295. The estab-
lished criteria are helpful in determining the significance of
state involvement, and “[s]atisfaction of any one test is suffi-
cient to find state action, so long as no countervailing factor
exists.” Kirtley, 326 F.3d at 1092.
IV
[4] Under the “public function” analysis, state action is
present “in the exercise by a private entity of powers tradi-
tionally exclusively reserved to the State.” Caviness v. Hori-
zon Cmty. Learning Ctr., Inc., 590 F.3d 806, 814 (9th Cir.
2010) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345,
352 (1974)). For example, in West v. Atkins, the Supreme
Court held that a private physician acted under color of state
law when the physician contracted with the state to provide
medical services to prisoners at state-prison hospitals. 487
U.S. at 54. A prisoner filed a civil-rights action against such
a physician alleging that the physician violated the prisoner’s
Eighth Amendment rights by failing to provide necessary
medical treatment. Id. at 45. The Court held that the physi-
cian’s conduct could “fairly be attributed to the State”
because the state “bore an affirmative obligation to provide
adequate medical care to [the prisoner]; the State delegated
that function to respondent [physician]; and respondent volun-
tarily assumed that obligation by contract.” Id. at 55-56. The
Court found significant the prison’s policy prohibiting the
prisoner from employing or electing “to see a different physi-
cian of his own choosing.” Id. at 44. The Court held, “Con-
tracting out prison medical care does not relieve the State of
its constitutional duty to provide adequate medical treatment
to those in its custody, and it does not deprive the State’s pris-
6730 FLORER v. CONGREGATION
oners of the means to vindicate their Eighth Amendment
rights.” Id. at 56; see also, e.g., Lee, 276 F.3d at 554-55.
[5] We conclude, viewing the evidence in the light most
favorable to Florer, that the DOC used contract chaplains such
as Congregation to meet its legal obligation to provide prison-
ers with appropriate access to religious materials and services
similarly as the state in West used contract physicians to meet
its obligation to provide adequate medical care to prisoners.
“Under the Constitution, reasonable opportunities must be
afforded to all prisoners to exercise the religious freedom
guaranteed by the First and Fourteenth Amendments.” Pierce
v. County of Orange, 526 F.3d 1190, 1209 (9th Cir. 2008)
(quotation marks omitted); see also Alvarez v. Hill, 518 F.3d
1152, 1156 (9th Cir. 2008) (“RLUIPA disallows policies that
impose a substantial burden on religious exercise unless the
burden furthers a compelling governmental interest, and does
so by the least restrictive means.” (internal punctuation omit-
ted)). The DOC promulgated policies to effectuate these pris-
oner rights by, for example, permitting prisoners to attend
services, celebrate holidays, eat religious diets, receive reli-
gious instruction, and possess religious materials. And the
DOC employed Congregation to facilitate those policies for
Jewish prisoners. Because DOC policy did not permit Florer
to have access to Jewish materials and services from other
sources without Congregation’s approval, and because DOC
policy required that Florer request those materials through the
facility chaplain, who relied exclusively on Congregation’s
voluntarily offered determination that Florer was not Jewish,
Congregation assumed the DOC’s obligation and maintained
control over Florer’s access to Jewish materials and services.
Congregation therefore acted under color of state law.
Our conclusion is consistent with the decision of the Sixth
Circuit in Phelps v. Dunn, 965 F.2d 93 (6th Cir. 1992). In
Phelps, the court concluded that a volunteer chaplain acted
under color of state law when he excluded a prisoner from
attending chapel because the prisoner’s homosexual behavior
FLORER v. CONGREGATION 6731
was contrary to the chaplain’s religious beliefs. Id. at 102.
The court explained that the chaplain’s “right to conduct ser-
vices in the prison chapel was a privilege created by the state”
and the chaplain “had signed an agreement that specifically
restricted him from denying prisoners access to religious ser-
vices on the basis of his own religious beliefs.” Id. The court
concluded that there was “something more” than mere action
pursuant to governmental authority and remanded to the dis-
trict court to address the merits of the prisoner’s § 1983 claim
against the chaplain. Id. (quoting Lugar v. Edmondson Oil
Co., 457 U.S. 922, 939 (1982)).
[6] Likewise, Congregation’s role in determining which
prisoners were Jewish, according to Congregation’s religious
beliefs, arose through its contract with the DOC. Although the
mere fact of a contract with the DOC does not create state
action in a contracting party, here the substance of the agree-
ment placed critical responsibilities to facilitate the free exer-
cise of religion by inmates upon Congregation. Congregation
agreed to provide Jewish religious services to all prisoners
who requested the services and agreed not to deny services on
the basis of religion under the contract’s General Terms and
Conditions. Just as the “purpose of having and regulating
prison religious services” in Phelps was, as the prison regula-
tions stated, to “ensure the constitutional right of inmates to
practice their religion,” 965 F.3d at 102, so too was the
DOC’s purpose of hiring contract chaplains to accommodate
the “inherent and constitutionally protected rights [of prison-
ers] . . . to believe, express, and exercise the religion of their
individual choice.” See DOC Policy Directive 560.200. Con-
tract chaplains were required to attend to the spiritual needs
of the offender, to advise the DOC facility chaplain “about
spiritual, moral, and social concerns of offenders,” and to
work “under the guidance and supervision” of the facility
chaplain. DOC Policy Directive 560.100. Congregation’s
determination of whether Florer was Jewish under “Jewish
law” controlled Florer’s access to Jewish religious materials
and services from all Jewish organizations, and, as in Phelps,
6732 FLORER v. CONGREGATION
Congregation acted under color of state law because the DOC
contracted with Congregation to meets its duty to provide
access to religious materials and services.
[7] The Eighth Circuit’s decision in Montano is not incon-
sistent with our conclusion. The court in Montano concluded
that “a prison chaplain, even if a full-time state employee, is
not a state actor when he engages in inherently ecclesiastical
functions (that is, when he performs spiritual duties as a
leader in his church).” 120 F.3d at 851. But the court recog-
nized that religious actors do not always perform spiritual
duties and sometimes may perform duties to fulfill state obli-
gations. Id. We agree with the Eighth Circuit that a situation
involving a prison chaplain lies somewhere between the
adversarial relationship that is the “lynchpin of a public
defender’s association with the state, see Polk County [v.
Dodson, 454 U.S. 312, 318-20 (1981)], and the spirit of coop-
eration in which prison physicians make decisions affecting
an inmate’s medical treatment, see West, 487 U.S. at 51.” See
Montano, 120 F.3d at 851 n.11.
The state’s nondelegable duty to give prisoners reasonable
access to religious materials and services cannot be entirely
avoided merely by classifying as “ecclesiastical” the pertinent
decisions in providing such access. We conclude that the par-
ticular facts of this case, unlike those in Montano, make it
more consistent with the decision in West. Whereas Florer
alleged that he could not access any Jewish religious materials
and services—even from other Jewish organizations—without
Congregation’s approval, the prisoner in Montano was not so
prohibited. See id. at 848. Unlike the plaintiff in Montano,
Florer did not concede that Congregation’s actions were spiri-
tual in nature. See id. at 851 n.12. In addition, the court in
Montano distinguished its decision from the Sixth Circuit’s
decision in Phelps because in Phelps, the court “placed much
reliance on the fact that the pastor had signed a contract with
the prison which precluded him from denying prisoners
access to services based on his own religious beliefs.” See id.
FLORER v. CONGREGATION 6733
at 851 n.13 (quotation marks omitted). Those factual circum-
stances “ha[d] not been shown to exist in [Montano].” Id.
Here, however, there is a genuine issue of material fact
whether the contractual obligation between Congregation and
the DOC created circumstances similar to those in Phelps.
When a religious entity works with a prison system, the
religious entity lies nebulously somewhere between private
physicians that contract with prisons and public defenders.
The Supreme Court holds that the former generally act under
color of state law, West, 487 U.S. at 54, and that the latter
generally do not, Polk County, 454 U.S. at 324-25. In some
situations, a religious entity may work in tandem with a
prison to fulfill the prison’s constitutionally compelled duties.
This type of relationship effectively places the religious entity
in a role similar to that of private physicians who work in
“joint effort” with the state. See West, 487 U.S. at 51. But in
other situations, a religious entity may engage in purely reli-
gious activities that reasonable minds would be loathe to attri-
bute to the government in light of the First Amendment, just
as the Supreme Court in Polk County declined to treat public
defenders as state actors because of the Sixth and Fourteenth
Amendments. See Polk County, 454 U.S. at 321-22.
[8] Given the context-specific nature of religious entities
contracting with prisons, courts confronting this question
must examine the precise scope of actions of the religious
entity and determine whether those actions are substitutes for
traditional government actions or whether they are religious
activities outside the traditional realm of government conduct.
Here, although Congregation’s decision to limit Florer’s
access to religious materials may have had a religious compo-
nent, that characteristic does not alter that Congregation’s
conduct was a direct delegation of the DOC’s constitutional
duty to provide appropriate access to religious materials. If
Congregation had instead been sued for its performance of
religious activities that the state could not conduct itself, such
as delivering sermons or praying for healing, Congregation
6734 FLORER v. CONGREGATION
could not be held liable as a state actor because such religious
conduct would lack “joint effort” between the state and Con-
gregation. See West, 487 U.S. at 51.
[9] While a religious organization’s right to interpret and
apply its own religious dogma is a countervailing factor
against attributing activity to the government, cf. Single
Moms, Inc., 331 F.3d at 748 (concluding that the “exercise of
a [private party’s] lawful First Amendment right to petition
the government” is a countervailing factor), under the “fact-
bound inquiry” for determining whether a private actor’s con-
duct is fairly attributable to the government, this case is more
akin to West. If Congregation maintained exclusive control
over Florer’s access to Jewish religious materials and ser-
vices, which is a fair conclusion if all facts of Florer are cred-
ited and he is given all reasonable inferences, then the case
would fall under the purview of West, because Congregation
would be controlling the critical function of appropriate
access that it was the duty of the state to provide. Here, in the
light most favorable to Florer, the evidence indicates that
Florer could access Jewish religious materials and services
only through the facility chaplain, who relied exclusively on
Congregation’s determination that Florer was not Jewish.
There is a genuine issue of material fact whether Congrega-
tion maintained exclusive control over Florer’s access to Jew-
ish religious materials and services, and so summary
judgment was not correct on whether Congregation acted
under color of state law.
V
Our conclusion that for summary judgment purposes Con-
gregation acted under color of state law is reinforced and con-
firmed by the “joint action” analysis outlined in the United
States Supreme Court’s decision in Lugar v. Edmondson Oil
Co., and our implementing decision in Swift v. Lewis, 901
F.2d 730, 732 (9th Cir. 1990). In Lugar, the Court held that
a private party’s joint participation with state officials in the
FLORER v. CONGREGATION 6735
seizure of disputed property is sufficient to characterize that
party as a state actor. 457 U.S. at 942. The Court held:
Private persons, jointly engaged with state officials
in the prohibited action, are acting under color of law
for purposes of the statute. To act under color of law
does not require that the accused be an officer of the
State. It is enough that he is a willful participant in
joint activity with the State or its agents . . . .
Id. at 941 (quotation marks omitted).
We applied this joint-action analysis in Swift to facts simi-
lar to those at issue here. See 901 F.2d at 732. In Swift, a
prison policy exempted Sikhs from cutting their hair in accor-
dance with their religious beliefs. Id. at 731. A prisoner,
David R. Gren, alleged that a private party, Santok Singh
Khalsa, conspired with prison officials to remove Gren from
the Sikh-exemption list while Gren was still a Sikh. Id. at 732.
We remanded to the district court in part because Gren had
sufficiently alleged that Khalsa acted under color of state law,
even though Khalsa was a private party:
While the state action doctrine might seem to bar
this claim, Gren has alleged that [the Arizona
Department of Corrections (“ADOC”)] contracted
with Khalsa to help them determine whether ADOC
should classify particular prisoners as Sikhs. If this
allegation is true (and we must assume that it is), the
state action doctrine does not bar the claim because
Khalsa was a “willful participant in joint action with
the State or its agents.”
Id. at 732 n.2 (quoting Dennis v. Sparks, 449 U.S. 24, 27
(1980)).
[10] Here, there is a genuine issue whether Congregation
was a willful participant in joint action with prison officials
6736 FLORER v. CONGREGATION
to determine eligibility for access to Jewish materials and ser-
vices. Congregation President Friedman offered to assist the
DOC in determining which prisoners were Jewish. The dis-
trict court acknowledged that evidence supported “the conten-
tion that [the] DOC relied on Friedman’s input in determining
whether prisoners should be classified as Jewish and whether
they were entitled to receiving, at least, a kosher diet.” The
evidence included a DOC document explaining that a prisoner
did not receive a religious-diet program during Passover
because Friedman, “who is the authority on [the] Jewish
Community,” did not approve the prisoner as Jewish. The
DOC Religious Program Manager declared that the DOC did
not have authority to tell Congregation who was Jewish and,
therefore, “the role of DOC in providing Jewish services was
to refer an inmate who requested those services to Jewish
Prisoner Services International, who would determine
whether or not they would provide services to that inmate pur-
suant to Jewish law.” An e-mail from a prison official to a
facility chaplain explained that the facility chaplain needed to
verify only with Friedman, “the Jewish Advisor to the Wash-
ington State Department of Corrections[,] . . . the validity of
an offender[’]s claim to being Jewish.” A facility chaplain
also declared that because the prison did not have any donated
copies of a Torah or Jewish calendar to provide to Florer, the
facility chaplain “referred his request to Jewish Prisoner Ser-
vices International,” who determined that Florer was not Jew-
ish and therefore did not send him a Torah or Jewish calendar.
Friedman’s letter about non-Jewish prisoners participating in
Jewish activities and his offer to assist the DOC in determin-
ing which prisoners were Jewish show joint action.3
3
That the contract between Congregation and the DOC did not require
that Congregation determine which prisoners were Jewish does not change
the result. Under the joint-action analysis, the question is whether the pri-
vate actor was a “willful participant in joint activity” with the state to have
acted under color of state law. Lugar, 457 U.S. 941; see also Kirtley, 326
F.3d at 1093 (“Under the joint action test, we consider whether the state
has so far insinuated itself into a position of interdependence with the pri-
vate entity that it must be recognized as a joint participant in the chal-
lenged activity. This occurs when the state knowingly accepts the benefits
derived from unconstitutional behavior.”) (quotation marks omitted).
FLORER v. CONGREGATION 6737
[11] Congregation contends that there is no evidence in the
record that the DOC played any role with respect to Congre-
gation’s decision allegedly denying Florer’s request for reli-
gious materials and that there is no evidence that
Congregation’s religious classification of prisoners actually
became the DOC’s classification. We disagree. Florer has
pointed to examples of the DOC’s cooperation with Congre-
gation to determine which prisoners were Jewish and to deter-
mine which prisoners would have access to Jewish religious
materials and services. Prison officials, including the DOC’s
Religious Program Manager, indicated that the DOC’s policy
was to accept Congregation’s decision regarding which pris-
oners were Jewish. There is a genuine issue of material fact
whether the DOC relied on Congregation’s input regarding
which prisoners were Jewish, and therefore entitled to access
to Jewish religious materials and services, and whether Con-
gregation’s religious classification of inmates became the
state’s classification.
VI
Viewing the evidence in the light most favorable to Florer,
we conclude that Congregation acted under color of state law.
We do not address other issues on the merits.4 We reverse and
remand for further proceedings in the district court not incon-
sistent with this opinion.
REVERSED and REMANDED.
4
Appellees urge various alternate grounds on which we are asked to
affirm the summary judgment, because we can normally affirm on any
ground supported by the record. However, the only dispositive issue ruled
upon by the district court was its conclusion that the actions of Congrega-
tion did not meet the required element of state action. We reverse that
decision and decline to address issues not resolved by the district court.