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 April 15, 2011
Before: Robert R. Beezer, Ronald M. Gould and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Gould
5059
5062 FLORER v. CONGREGATION PIDYON SHEVUYIM
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.
FLORER v. CONGREGATION PIDYON SHEVUYIM 5063
OPINION
GOULD, Circuit Judge:
Plaintiff-Appellant Dennis Florer, a Washington State pris-
oner, 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 reli-
gious services to prisoners; Jewish Prisoners Services Interna-
tional (“JPSI”), an outreach program of CPSNA; and Rabbi
Gary Friedman, president of CPSNA and chairman of JPSI
(collectively “Defendants”). The district court granted sum-
mary 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 oper-
ating 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 circum-
stances 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 (includ-
ing Friedman, though Friedman did not receive a wage), to
“provide religious training on essential Jewish religious prac-
tices 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
5064 FLORER v. CONGREGATION PIDYON SHEVUYIM
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 facil-
itate spiritual growth. While at a local prison facility, the
Facility Chaplain/Chaplain Supervisor will coordinate ser-
vices 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 provi-
sion by adding, “Services will be open to all offenders, how-
ever, 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 chap-
lains “to meet the needs of specific religious/faith groups.”
The Directive further stated that offenders should have rea-
sonable 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) Pro-
cured in accordance with established mail and property proce-
dures; (c) Obtained from Office of Correctional Operations
(OCO)-approved authorized religious vendors; (d) Issued by
1
Facility chaplains, unlike contract chaplains, are DOC employees.
FLORER v. CONGREGATION PIDYON SHEVUYIM 5065
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 “coordi-
nate 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 chap-
lains, 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, refer-
ring offenders to religious assistance programs and agencies
in the community, conducting denominational religious ser-
vices for offenders, providing spiritual guidance to offenders
as requested, and suggesting changes in DOC policy or proce-
dure when appropriate.
In 2004, while incarcerated in Washington State Peniten-
tiary, 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
5066 FLORER v. CONGREGATION PIDYON SHEVUYIM
see me out here.” Florer then phoned Friedman, the chair of
JPSI and president of CPSNA. Though the details of that con-
versation 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 evi-
dence that Florer completed the form or sent it back to Fried-
man, 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 adminis-
trative 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 leader-
ship.” 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 rela-
tionship 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 judg-
ment. 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.
2
The district court did not reach the question of exhaustion, and it is not
necessary for us to do so here.
FLORER v. CONGREGATION PIDYON SHEVUYIM 5067
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). “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 substan-
tial 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. Wil-
kinson, 544 U.S. 709, 715 (2005). RFRA defined “govern-
ment” to include a “person acting under color of law.” 42
U.S.C. § 2000bb-2(1). RLUIPA’s definition of “government”
3
Defendants do not challenge, and we do not decide, RLUIPA’s appli-
cation 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 Sossa-
mon 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.
5068 FLORER v. CONGREGATION PIDYON SHEVUYIM
is nearly identical. § 2000cc-5(4)(A)(iii). When we inter-
preted 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. Sut-
ton 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 set-
tled 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 commit-
ted 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,
FLORER v. CONGREGATION PIDYON SHEVUYIM 5069
192 F.3d at 835 (citing Lugar, 457 U.S. at 937). Florer con-
tends 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 reli-
gious 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 mate-
rials and rabbi visits to individuals that Defendants deter-
mined 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 enforc-
ing a DOC or governmental policy prohibiting him from con-
sulting 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 calen-
dar.” 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 con-
stitutionally obligated to provide access.” But the record indi-
cates 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 organi-
zations.
5070 FLORER v. CONGREGATION PIDYON SHEVUYIM
Even under a liberal construction,4 at most Florer’s com-
plaint and cross-motion for summary judgment contend that
Defendants helped DOC staff determine whether other prison-
ers 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 governmen-
tal policy and does not satisfy the first step of the Lugar anal-
ysis.
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 stan-
dards than formal pleadings drafted by lawyers.’ ” Erickson v. Pardus, 551
U.S. 89 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (cita-
tions omitted).
FLORER v. CONGREGATION PIDYON SHEVUYIM 5071
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 behav-
ior ‘may be fairly treated as that of the State itself.’ ”5 Brent-
wood 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 con-
sidered 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
5
The 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 immate-
rial for purposes of this appeal. “Where, as here, deprivations of rights
under the Fourteenth Amendment are alleged, these two requirements con-
verge.” 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.
5072 FLORER v. CONGREGATION PIDYON SHEVUYIM
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 instrumen-
talities of the State and subject to its constitutional limita-
tions.” 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 (quot-
ing 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 con-
tract 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 Defen-
dants, 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 pro-
vide 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. More-
over, in West, the prison was required by the Eighth Amend-
ment and state law to provide health services to its prisoners.
FLORER v. CONGREGATION PIDYON SHEVUYIM 5073
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 accom-
modate 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 reli-
gious 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 discre-
tion and judgment, standing alone, did not remove them from
the purview of § 1983. 487 U.S. at 52. Yet the Court cau-
tioned that it did “not suggest that this factor is entirely irrele-
vant 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 gov-
erning 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 govern-
mental pressures, and the canons which underlie most of the
5074 FLORER v. CONGREGATION PIDYON SHEVUYIM
world’s denominations are typically thought to derive from
divine, rather than worldly, inspiration.” Id. at 850. The Mon-
tano 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 ecclesi-
astical, not public, functions.
[8] Florer relies on Phelps v. Dunn, a Sixth Circuit deci-
sion 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 ser-
vices in general. In Phelps, the court expressly noted that its
decision did not “concern the rights of other prisoners or pas-
tors to have a service without those they may consider sin-
ners.” 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 chap-
lain, 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, disre-
garding 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 partici-
pation 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
FLORER v. CONGREGATION PIDYON SHEVUYIM 5075
entered into a contract with DOC to provide religious instruc-
tion 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 per-
sons, 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 rec-
ognized 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 ‘will-
ful 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 argu-
ment 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
5076 FLORER v. CONGREGATION PIDYON SHEVUYIM
Defendants conspired with the DOC or were willful partici-
pants 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 lead-
ers do not automatically become state actors when they pro-
vide 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 Defen-
dants 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 partici-
pation, 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.
6
While Florer does present some evidence to support his contention that
the DOC relied on Defendants’ input in determining whether other prison-
ers 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.
FLORER v. CONGREGATION PIDYON SHEVUYIM 5077
AFFIRMED.