                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 96-2487
                                  ___________
Nick P. Montano,                       *
                                       *
             Plaintiff - Appellant,    *
                                       *   Appeal from the United States
     v.                                *   District Court for the
                                       *   Southern District of Iowa.
Paul Hedgepeth; James Helling;         *
Dale Vande Krol,                       *
                                       *
             Defendants -              *
Appellees.
                                 ___________

                        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.
The court thus entered judgment in favor of Vande Krol,1 and this appeal
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
                                                   2
followers, who are few in number at the prison, do not enjoy all the
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




      1
       In addition, the district court dismissed Montano's claims against two other
prison officials, Paul Hedgepeth and James Helling. On appeal, Montano does not
challenge this aspect of the court's ruling.
      2
      At the time of trial, only one ISP prisoner besides Montano regularly practiced
Messianic Judaism.

                                         -2-
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.3 Vande Krol
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,4 Montano did not in any way disrupt the
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




      3
        Rabbi Horn, an unpaid religious advisor, could not have unilaterally stopped the
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.

      4
       Vande Krol considers himself to be the pastor for the ISP Protestant
congregation. Acting in this capacity, he is no different from the volunteer religious
advisors who minister at the prison.

                                          -3-
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.5 Vande Krol invited certain individuals, including
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



      5
       For those denominations outside Vande Krol's own realm of expertise, such as
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.
      6
       The body of the memorandum reads as follows:

      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-
      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."7 Nonetheless, because his personal beliefs
remained




      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.
      7
      With regard to the result desired to be accomplished by the imposed discipline,
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-
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 statutory8 free exercise
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.




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




                                    -7-
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 analysis in Polk County concentrated on whether a public defender acts
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-
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.




                                    -9-
      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.




                                   -10-
      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.10 During the course of his employment, a prison chaplain might,
among many other things, deliver sermons, take confessions, grant
forgiveness for sins, and counsel inmates on the proper reading of sacred
texts. It is




      10
         Indeed, states might commit a technical violation of the Establishment Clause
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-
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.11 Absent any showing that Vande Krol
relied upon religious doctrine as a subterfuge and deceptively used the
excommunication process to impose




      11
         A situation involving a prison chaplain lies somewhere between the adversarial
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-
the will of prison administrators,12 we cannot say that the expulsion of
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).13 By disciplining Montano as a result of the prisoner's perceived
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




      12
         Montano apparently concedes that Vande Krol's action was spiritual in nature,
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).
      13
         We realize that this conclusion seems to conflict with an opinion from the Sixth
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-
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.




       14
         A separate line of decisions from our Court buttresses this result. In a series
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-
