Thursday, May 6, 2010
Ninth Circuit Revives Prisoner’s Suit Over Denial of Services by Jewish Chaplaincy
By KENNETH OFGANG, Staff Writer
A prisoner who claims that a Jewish chaplaincy violated his civil rights by denying him assistance based on its conclusion that he is not Jewish may sue the group under federal statutes, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Overturning a summary judgment in favor of Congregation Pidyon Shevuyim, N.A., the panel said there was a triable issue as to whether the group acted on behalf of the state of Washington, with which it has a contract to provide services to Jewish inmates.
Pidyon Shevuyim is translated as the ransoming or redeeming of captives, referring to a command in Jewish law that Jews taken prisoner not be abandoned if their freedom could be attained at a fair price. The congregation maintains a Seattle-based nonprofit outreach program called Jewish Prisoners Services International.
The prisoner, Dennis Florer, is serving 10 years for stealing a truck from a car dealership in 2003 and running over the salesman, The Associated Press reported. Florer completed the Washington Department of Corrections religious preference form, designated himself as Jewish, and requested a kosher diet, a Torah, a Jewish calendar, and consultation with a rabbi.
His requests were referred by the prison chaplain to Congregation Pidyon Shevuyim. The group’s contract with the DOC required it to provide “religious training on essential Jewish religious practices to Department of Corrections’ offenders who request this service” and to provide “instruction and assistance with Jewish problems in all prisons located in Washington State.”
The contract also provides that while all prisoners could attend Jewish services, “the Jewish authorities will determine who can participate in liturgical related activities.”
Florer claims that the denial of his requests by the DOC violated the First Amendment and the Religious Land Use and Institutionalized Persons Act, which bars the government from imposing an undue burden on a prisoner’s religious freedom.
He named the congregation as defendant, saying the DOC acted as it did because the congregation’s president, Gary Friedman, insisted that Florer was not Jewish.
Friedman, in a 2002 letter to a DOC chaplain that Florer cited as evidence, said that requests for services from non-Jewish inmates were burdening the chaplaincy and that the only solution was to limit services to those who “require them as obligations of their bona fide faiths.”
Friedman further offered to assist the department if it had “difficulty in determining which inmates are Jewish” according to traditional Jewish law, which requires that one be born to a Jewish mother or formally converted in order to be considered a member of the faith. That view is not universal, as some within Judaism recognize as Jewish a person whose father is Jewish but whose mother is not, or who has undergone conversion outside of the Orthodox tradition, to which Congregation Pidyon Shevuyim adheres.
Subsequent to the receipt of Friedman’s letter, Florer said in his complaint, the DOC initiated a policy of denying religious materials to inmates who did not have the approval of the chaplaincy of the particular faith they were claiming. Florer received a questionnaire from Friedman regarding the bona fides of his claim to be Jewish, but did not complete it.
In granting summary judgment in favor of the congregation, U.S. District Judge Ricardo Martinez of the Western District of Washington ruled that the congregation could not be sued under the civil rights statutes because it was acting privately, rather than on behalf of the state.
Judge Ronald Gould, emphasizing that the appellate panel was ruling only on the state-action issue, said Florer presented enough evidence to take that question to trial. He explained in a footnote that while the congregation raised other grounds in favor of dismissal, the panel declined to rule on them because the district judge did not treat them as dispositive.
Gould explained that if the state contracts with a private party to meet the state’s legal obligations, the private property acts under color of state law. He cited cases in which the Sixth Circuit allowed a prisoner to sue a volunteer chaplain who barred him from attending chapel because the prisoner was gay, and in which the Supreme Court allowed suit against a private physician who treated a prisoner under contract with the prison system.
“Likewise, Congregation’s role in determining which prisoners were Jewish, according to Congregation’s religious beliefs, arose through its contract with the DOC,” the appellate jurist explained. “Although the mere fact of a contract with the DOC does not create state action in a contracting party, here the substance of the agreement placed critical responsibilities to facilitate the free exercise of religion by inmates upon Congregation.”
Senior Judge Robert R. Beezer and Judge Richard C. Tallman concurred in the opinion.
The case is Florer v. Congregation Pidyon Shevuyim, N.A., 07-35866.
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