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Ninth Circuit Rules that Washington DOC Religious Contractor Not a “State Actor”

Congregation Pidyon Shevuyim, N.A., a private Jewish organization that contracted with the Washington Department of Corrections (DOC), may not be sued under 42 U.S.C. § 1983 or the Religious Land Use and Institutionalized Persons Act (RLUIPA), the U.S. Court of Appeals for the Ninth Circuit held, as the organization is not a “state actor.”

Dennis Florer, a Washington state prisoner, sued the Congregation after his requests for a Torah, Jewish calendar and consultation with a rabbi were denied. Florer had contacted the Congregation for assistance with his requests for religious materials and services. The Congregation, however, refused to help him until he proved he was Jewish.

For example, Florer was asked to fill out a form so the Congregation could determine whether he was born to a Jewish mother or had undergone a proper conversion to Judaism. The Congregation’s decision to send Florer the form was the result of extensive talks between the Congregation and the DOC about limiting access to Jewish services to only those prisoners who were considered “really” Jewish. Florer, however, refused to complete the form.

In his subsequent lawsuit, he alleged that the Congregation’s refusal to provide him with access to Jewish religious materials violated his First Amendment rights and RLUIPA.
The district court dismissed Florer’s suit, finding the Congregation was not a state actor for the purpose of liability under § 1983 or RLUIPA. Florer appealed and the Ninth Circuit initially reversed.

According to the appellate court, the Congregation acted under color of state law because the DOC “employed” the Congregation “to facilitate [its] policies for Jewish prisoners.”

For example, Florer’s access to Jewish religious materials and services was entirely contingent on approval by the Congregation, part of which depended on the “Congregation’s voluntarily offered determination that Florer was not Jewish.”

Thus, the Ninth Circuit held, the “Congregation assumed the DOC’s obligation and maintained control over Florer’s access to Jewish materials and services.” See: Florer v. Congregation Pidyon Shevuyim, N.A., 603 F.3d 1118 (9th Cir. 2010).

On July 14, 2010, however, the appellate court granted the DOC’s motion to rehear the case, and the initial ruling was withdrawn pending the rehearing. The issues on rehearing included: 1) Is there a genuine issue of material fact as to whether Florer could only get Jewish religious materials and instruction from the Congregation? and 2) Does evidence in the record support the conclusion that Florer exhausted the DOC’s grievance process before suing the Congregation? See: Florer v. Congregation Pidyon Shevuyim, N.A., 611 F.3d 1097 (9th Cir. 2010).

Following rehearing, the Court of Appeals issued a superseding decision on April 15, 2011. The appellate panel reversed itself, finding that the denials of Florer’s requests for religious materials and services were not pursuant to a governmental policy, and that the defendants were not state actors. The issue of exhaustion was not reached.

The Ninth Circuit held that, “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.” The Court then examined whether the Congregation met the standards for being considered a state actor, and found it did not under either the “public function” or “joint action” tests. Further, “There is nothing in the record that indicates that Defendants blocked [Florer’s] access to other religious communities or his ability to request religious materials and information from other individuals and organizations.”

Accordingly, the district court’s grant of summary judgment to the defendants was affirmed. Florer’s petition for a writ of certiorari to the U.S. Supreme Court was denied on January 9, 2012. See: Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916 (9th Cir. 2011), cert. denied.

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Related legal cases

Florer v. Congregation Pidyon Shevuyim, N.A.

Florer v. Congregation Pidyon Shevuyim, N.A.

Florer v. Congregation Pidyon Shevuyim, N.A.