MESTRE v. WAGNER et al

Filing 44

MEMORANDUM OPINION, FILED. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 1/31/12. 2/1/12 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALFREDO MESTRE, JR.
v.
WARDEN WAGNER, et al

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CIVIL ACTION

NO. 10-7141

MEMORANDUM OPINION
Savage, J.

January 31, 2012

Plaintiff, Alfredo Mestre, Jr. (“Mestre”), a state prisoner, filed this action under 42
U.S.C. § 1983, claiming his rights under the Constitution and the Religious Land Use and
Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. (“RLUIPA”) were violated
when he was not provided a diet conforming to his religious beliefs while being housed in
the Berks County Jail System.1 He contends that despite his request for a vegan diet
consistent with his religion, he was given meals that contained meat or animal by-products
three to four times a week. He seeks injunctive2 and monetary relief.
Mestre has named as defendants three prison officials and a chaplain. The prison
officials are: Warden Wagner, who granted Mestre relief in the grievance process;
Lieutenant Castro, the prison’s grievance coordinator; and Sergeant Svenson, the kitchen

1

This action is one of three Mestre has filed in this court alleging constitutional violations while he had
been incarcerated in the Berks County Jail System . In Mestre v. W agner, C.A. No. 11-2191, he claim s his
being required to eat his m eals in his cell, which contains a toilet, violated the Eighth Am endm ent’s ban on
cruel and unusual punishm ent. In Mestre v. W agner, C.A. No. 11-2480, he claim s that dietary and day-tim e
m attress restrictions constituted cruel and unusual punishm ent and violated his substantive due process
rights.
2
Since the filing of his com plaint, Mestre has been transferred to SCI-Cam p Hill. Accordingly, his
dem and for injunctive relief is m oot. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (“An inm ate’s
transfer from the facility com plained of generally m oots the equitable and declaratory claim s.” (citing AbdulAkbar v. W atson, 4 F.3d 195, 197 (3d Cir. 1993))); Young v. Beard, No. 10-284, 2011 W L 6372783, at *2
(W .D. Pa. Nov. 28, 2011) (“In the context of prisoner litigation, it is well established that a prisoner-plaintiff’s
transfer to another institution m oots a request for injunctive relief.” (citation om itted)).

supervisor. The chaplain, Eileen McKeown, ministers the prison population.
According to his complaint, Mestre, a Buddhist, entered the Berks County Jail
System on September 16, 2010.3 He requested a religious, non-meat diet from a prison
officer who is not named as a defendant. Two days later, he started his religious diet, but
continued to receive meat or animal by-products with lunch and dinner.
After he complained, he was referred to McKeown, the prison chaplain, who is not
a prison employee. On September 21, 2010, she provided him a form to document his
request for a diet consistent with his religious beliefs. On the form, Mestre wrote that he
does not eat meat or “any product[s] that come from meat” and requested a “vegaintarian
[sic] meal.” McKeown approved the request.
The following day after dinner, Mestre sent Svenson a “request slip” complaining
that he was still receiving food containing animal by-products in his meals. Six days later,
Svenson replied that he had not been notified by McKeown that Mestre was vegan, and
that Mestre would continue to receive vegetarian meals until he received confirmation that
Mestre qualified for a vegan diet. The initial form submitted by McKeown, which was in
Mestre’s handwriting and signed by him, requested vegetarian, not vegan, meals.
On the same day he received Svenson’s reply, Mestre made a second request to
McKeown. In that request, he stated that he is a “vegetarian” and clarified that he does not
eat meat or “any products that come from an animal.” Perceiving that Mestre was asking
to be placed on a vegan – as opposed to vegetarian – diet, McKeown approved Mestre’s

3

The facts are recited as they are alleged in plaintiff’s com plaint and exhibits. In light of his pro se
status, we also considered the exhibits he included with his responses to the m otions to dism iss, treating them
as am endm ents to the com plaint. The factual allegations are accepted as true and viewed in the light m ost
favorable to the plaintiff.
2

“religious diet: vegan” on September 30, 2010. Mestre continued to receive meat or animal
by-products occasionally.4
Three weeks later, Mestre filed an emergency grievance, which was denied by
Castro because it did not constitute an emergency. Castro directed Mestre to file a
standard grievance. Mestre did so the following day. Although the copy of the grievance
is difficult to read, it is clear that Castro denied the grievance on October 26, 2010.
Mestre’s appeal to the Warden, defendant Wagner, was resolved in his favor. On
November 8, 2010, he began receiving vegan meals. Thus, his request for a vegan
religious diet was ultimately approved.
Mestre alleges that Svenson told him he would continue to receive meat three to
four times a week despite his request for a vegan meal. Mestre adds in his response to
the prison officials’ motion to dismiss that Svenson, as the kitchen supervisor, responded
to his September 22, 2010 request by insulting his intelligence and continuing to send him
meals containing meat or animal by-products. Thus, according to Mestre, although
Svenson “had the opportunity to step in and correct the violation,” he failed to do so.
There are no allegations in the complaint that Castro did anything other than deny
Mestre’s two grievances. In his response to the prison officials’ motion to dismiss, Mestre
adds that Castro “had the opportunity to stop the violation” but made excuses instead.
The only allegation against Wagner, the warden, is that he played a role in ruling on
the appeal. However, Wagner’s action resulted in Mestre’s getting the diet he requested.
In other words, Wagner actually assisted Mestre. Nonetheless, Mestre appears to argue
4

Although McKeown and Svenson wrote on two inm ate com m unication form s provided by Mestre that
he was receiving vegetarian m eals, Mestre claim s he was receiving food containing m eat with his m eals three
to four tim es a week.
3

that Wagner, as a supervisor, is liable for the constitutional violations of his subordinates.
Mestre alleges that McKeown had him complete the same form verifying his request
for a religious diet. In his response to McKeown’s motion to dismiss, Mestre claims that
she “had the opportunity to step in and make sure that Sgt. Svenson got [Mestre’s]
religious diet correct.” According to Mestre, her failure to do so, and her “excuses for the
delay of [his] religious diet” placed a substantial burden on his religious exercise.
Mestre claims that during the seven weeks before he was regularly provided a
religious diet, the defendants violated the RLUIPA, his right to free exercise of religion, and
denied him equal protection under the law. He also appears to challenge the manner in
which the defendants processed and evaluated his request for a religious diet.
The prison officials challenge the sufficiency of Mestre’s complaint under Rule
12(b)(6). In her motion to dismiss, McKeown also raises a failure to state a claim and adds
that Mestre cannot maintain a § 1983 claim against her because she was not acting under
the color of state law.
After careful review of the complaint, the responses to the motions to dismiss, and
the exhibits attached to the pleadings, we conclude that Mestre has failed to state a claim
under the RLUIPA and § 1983. Therefore, we shall grant the motions to dismiss.
Standard of Review
A complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), giving the defendant “fair notice of what
the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93,
(2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although this
standard “does not require ‘detailed factual allegations,’ . . . it demands more than an
4

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, __, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555).
A complaint is subject to dismissal if the plaintiff fails to plead “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). The
plaintiff must allege facts that indicate “more than a sheer possibility that a defendant has
acted unlawfully.” Id. Pleading only “facts that are ‘merely consistent with’ a defendant's
liability” is insufficient and cannot survive a motion to dismiss. Id. (quoting Twombly, 550
U.S. at 557).
When considering a motion to dismiss for failure to state a claim under Fed. R. Civ.
P. 12(b)(6), all well-pleaded allegations in the complaint are accepted as true and viewed
in the light most favorable to the plaintiff. Holk v. Snapple Beverage Corp., 575 F.3d 329,
334 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008)). We may also consider documents attached to the complaint. Buck v. Hampton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citation omitted). Additionally, the pro
se plaintiff's pleadings must be considered deferentially, affording him the benefit of the
doubt where one exists. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citing
Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002)). With these standards in mind, we
shall accept as true the facts as they appear in Mestre’s complaint and draw all possible
inferences from these facts in his favor.
Discussion
Mestre does not claim that any prison regulation substantially burdened his religious
exercise. As his complaint acknowledges, the prison has a procedure for providing
5

inmates with meals conforming to their religious beliefs. His claim is that the seven-week
period from his initial request for vegan meals to the time he received such meals violated
the RLUIPA, his First Amendment right to free exercise of religion, and his Fourteenth
Amendment right to equal protection.
Religious Land Use and Institutionalized Persons Act Claim
The RLUIPA provides that “[n]o government shall impose a substantial burden on
the religious exercise” of an inmate unless it demonstrates that the challenged regulation
or practice is the least restrictive way to advance a compelling government interest. 42
U.S.C. § 2000cc-1(a). The statute applies to “States, counties, municipalities, their
instrumentalities and officers, and persons acting under color of state law.” Sossamon v.
Texas, 131 S. Ct. 1651, 1656 (2011) (citing 42 U.S.C. § 2000cc-5(4)(a)).
To state a cause of action under the RLUIPA, the plaintiff must allege facts showing
that the prison’s policy or official practice “substantially burdens” the inmate’s religious
exercise. 42 U.S.C. § 2000cc-2(b); Washington v. Klem, 497 F.3d 272, 277-78 (3d Cir.
2007). A substantial burden exists when the policy or practice either (1) forces the inmate
to choose between following or abandoning the precepts of his religion, or (2) puts
substantial pressure on the inmate to substantially modify his behavior and to violate his
beliefs. Washington, 497 F.3d at 280. Therefore, “a prisoner’s religious dietary practice
is substantially burdened when the prison forces him to choose between his religious
practice and adequate nutrition.” Nelson v. Miller, 570 F.3d 868, 879 (7th Cir. 2009).
Mestre maintains that providing him meals containing meat or animal by-products
three or four times a week imposed a substantial burden because his religion forbids him
from eating such foods. However, he alleges no facts that the delay in granting his request
6

for vegan meals forced him to chose between adhering to his religious beliefs and eating
enough to get adequate nutrition. See Walker v. Wright, No. 09-1177, 2010 WL 4068945,
at *2 (C.D. Ill. Oct. 15, 2010) (dismissing inmate’s claim that the prison diet did not meet
his religious and nutritional needs because he offered "no evidence that he suffered any
nutritional deficiencies, medical problems, or illness caused by the meals served").
Mestre has not alleged that he was forced to consume any of the meat or animal
by-products provided in some of his meals. Nor does he claim that he skipped meals or
did not receive adequate nutrition. Instead, he acknowledges that he sold or traded the
non-conforming food.5 Mestre has pleaded no facts demonstrating that he had to abandon
the precepts of his religion or that the defendants put pressure on him to substantially
modify his behavior or violate his beliefs. At best, his allegations amount to a claim that
the defendants delayed the process. Hence, he has failed to allege facts making out the
substantial burden element of a cause of action under the RLUIPA. See Heleva v. Kramer,
330 F. App'x 406, 409 (3d Cir. 2009) (withholding two religious books for a period of eight
months "designed to uphold and strengthen petitioner’s faith in God" did not violate the
RLUIPA because "[a]t no point did [the inmate] have to abandon one of the precepts of his
Christian religion, nor did the government put pressure on him to substantially modify his
behavior or violate his beliefs").
Absent allegations of such facts, Mestre cannot make out a violation of the RLUIPA

5

This case stands in stark contrast to Nelson v. Miller, where the court held that a chaplain’s denial
of an inm ate’s request for a non-m eat diet on Fridays and during Lent substantially burdened his religious
practice because the inm ate, in abstaining from all m eat, had to be hospitalized due to weight loss. 570 F.3d
at 880. He also testified that his “bones began to protrude, he was cold, and he was depressed and anxious.”
Id. A dietician also acknowledged that “there was probably insufficient nutrition in the regular diet if all the
m eat were skipped.” Id. Here, however, Mestre has pleaded no facts indicating that in selling the m eat or
anim al by-products in his m eals, or trading them for other food item s, he received insufficient nutrition.
7

based on the seven-week period between his initial request for a vegan diet and the prison
providing him vegan meals. Once Mestre initiated the grievances process, the prison
processed his complaint and ultimately granted him relief. He makes no allegation that the
prison officials failed to follow the grievance protocol or otherwise impeded the process.
Moreover, as Mestre’s complaint reveals, he waited a month before filing his first
grievance.6

Once Mestre initiated the grievance process, the prison processed his

complaint and granted his request within two weeks.
42 U.S.C. § 1983 Claims
To state a § 1983 claim,7 a plaintiff must allege facts, which if proven, would
establish: (1) the deprivation of a right secured by the Constitution or laws of the United
States; and (2) the person causing the deprivation acted under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted); Miller v. Mitchell, 598 F.3d 139, 147
(3d Cir. 2010) (citation omitted).
Mestre claims that the delay in providing him vegan meals prevented him from
exercising his religion in violation of the Free Exercise Clause of the First Amendment8 and
the Equal Protection Clause of the Fourteenth Amendment.9 Mestre also appears to

6

According to Mestre, he “was placed on a religious vegan diet on 9-21-10 a full m onth before [he]
filed [his first] grievance.” Pl.’s Mot. to Strike Mot. to Dism iss, at 2.
7

Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom ,
or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or im m unities secured by the
Constitution and laws, shall be liable to the party injured . . . .”
8
“Congress shall m ake no law respecting an establishm ent of religion, or prohibiting the free exercise
thereof . . . .” U.S. Const. am end. I.
9

"[N]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S.
Const. am end. XIV, § 1.
8

challenge the grievance process.
To the extent that Mestre challenges the grievance process, his § 1983 claim fails.
Although an inmate has a constitutional right to file a grievance, Davis v. Goord, 320 F.3d
346, 352-53 (2d Cir. 2003); Robinson v. Taylor, 204 F. App’x 155, 157 (3d Cir. 2006), he
does not have a constitutionally protected right to a particular grievance procedure.
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Caldwell v. Beard, 324 F. App’x
186, 189 (3d Cir. 2009) (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per
curiam)).

Therefore, Mestre “cannot maintain a constitutional claim based on his

perception that his grievances were not properly processed, investigated, or that the
grievance process is inadequate.” Owens-Ali v. Pennell, 672 F. Supp. 2d 647, 655 (D. Del.
2009); see also Heleva, 214 F. App’x at 247 (“[D]efendants’ alleged obstruction of prison
grievance procedures does not give rise to an independent claim.”); Massey v. Helman,
259 F.3d 641, 647 (7th Cir. 2001) (citing cases from the Fourth, Eighth, Seventh, and Ninth
Circuits).
There is, under the Free Exercise Clause, “a constitutional right not to be forced into
a Hobson’s choice of either eating food items which offend one’s religious beliefs, or eating
very little or not at all.” Norwood v. Strada, 249 F. App’x 269, 272 (3d Cir. 2007). However,
Mestre pleads no facts demonstrating he was forced into making such a choice.10 Indeed,
his allegations are to the contrary. He sold or bartered his food for substitute meals. By
his own allegations, he managed to nourish himself while his grievance was in process.

10

Although som e circuits have held that plaintiffs m ust dem onstrate a “substantial burden” for both
RLUIPA and Free Exercise Claim s, the Third Circuit has not. See Heleva, 214 F. App'x at 247 n.2 ("W e have
not im posed a ‘substantial burden’ requirem ent on [free exercise] claim s." (citations om itted)).
9

From the time he made his initial request to when he was given vegan meals,
Mestre alleges that he had access to other food that conformed to his religiously-mandated
diet. Nothing in the complaint or the exhibits shows that he felt compelled or pressured to
eat – or that he did eat – meat or food containing animal by-products. Nor does he allege
that he was prevented from practicing his religion or exercising his religious beliefs in any
way. Thus, Mestre has not pleaded facts that would, if proven, demonstrate any limitation
on his free exercise rights. See Alexander v. Carrick, 31 F. App’x 176, 179 (6th Cir. 2002)
(holding that even if an inmate is given food items that do not conform to his religious
beliefs, this does not violate the free exercise clause if the other food provided to him “is
sufficient to sustain the prisoner in good health”).
Despite a delay in processing, Mestre’s request for vegan meals was granted after
he followed the prescribed grievance process. The delay, without more, is insufficient to
make out a constitutional violation. For example, in Tapp v. Proto, 404 F. App’x 563 (3d
Cir. 2010), the Third Circuit held that a two-week delay in granting a request for Kosher
meals was a “short delay,” which did not impinge on the inmate’s free exercise rights. Id.
at 565. Although Mestre’s wait was five weeks longer, he contributed to the delay by letting
three weeks pass before filing a grievance; and, once he did, the prison processed the
grievance within two weeks, resulting in his receiving vegan meals.
Prison officials are not required to grant an inmate’s request without inquiry. They
may verify the sincerity of the inmate’s religious beliefs. See Washington, 497 F.3d at 277
(citing Cutter v. Wilkinson, 544 U.S. 709, 725 n.13). “[A] prison is entitled to assess
whether an inmate’s dietary requirements are motivated by ‘sincerely held’ religious beliefs
. . . .” Tapp, 404 F. App’x at 565 (quoting DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000)).
10

Consequently, prison officials are afforded a reasonable period of time necessary to
conduct such an inquiry. If prison officials were required to serve special meals upon
demand without verification, the costs would be inordinate and the prison kitchen turned
into a restaurant.11
Mestre’s complaint also fails to state a claim under the Equal Protection Clause. “To
prevail on an equal protection claim, a plaintiff must present evidence that s/he has been
treated differently from persons who are similarly situated.” Williams v. Morton, 343 F.3d
212, 221 (3d Cir. 2003) (citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432,
439 (1985)). Mestre has not pleaded any facts that he was treated differently than any
other inmate in the same situation. Therefore, he has failed to state a claim under the
Equal Protection Clause.
Warden Wagner and Lieutenant Castro
Liability under § 1983 cannot be predicated solely on a respondeat superior theory.
Iqbal, 129 S. Ct. at 1949 (2009); Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583
(3d Cir. 2003) (citation omitted). Individual liability can only be imposed under § 1983 if
a defendant played an “affirmative part” in the alleged misconduct. Rode v. Dellarciprete,
845 F.2d 1195, 1207-08 (3d Cir. 1988). Personal involvement by a defendant may be
demonstrated by alleging either personal direction or actual knowledge and acquiescence
in a subordinate’s actions.

Id.

Such allegations “must be made with appropriate

11

Because we find that the facts as alleged by Mestre do not indicate that any regulation or action
im pinged upon his free exercise rights, we need not consider whether any im plicated regulation or action “is
reasonably related to legitim ate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); see, e.g.,
Tapp, 404 F. App’x at 565 (dism issing free exercise claim s without analyzing any prison regulation under
Turner because the prison’s delay in honoring the inm ate’s request for Kosher m eals did not im pinge on his
free exercise rights).
11

particularity.” Id.
Mestre’s only allegations against Wagner and Castro are that they played roles in
ruling on his grievances and “made up excuses for the violation.” These allegations do not
state a claim under § 1983. A prison official’s participation in the review of a grievance is
not enough to establish personal involvement. Collins v. Williams, 575 F. Supp. 2d 610,
615 (D. Del. 2008) (citing Brooks v. Beard, 167 F. App’x. 923, 925 (3d Cir. 2006)).
Mestre’s allegations actually absolve Wagner of any complicity or liability. He contends
Wagner granted him relief when his complaint made its way to him through the grievance
process. There are no allegations that Wagner and Castro had actual knowledge and
acquiesced to the other defendants’ actions, which resulted in Mestre not receiving his
vegan diet sooner. Therefore, even assuming he had adequately pleaded a constitutional
deprivation, Mestre has failed to state a cause of action against Wagner and Castro.
Chaplain McKeown and Sergeant Svenson
Mestre cannot impose liability upon McKeown by alleging that he was asking for
vegan meals when his first request, included as an exhibit to his pleadings, indicates that
he was asking for vegetarian meals.

McKeown granted this request and Svenson

processed this approval, telling Mestre that he was already on the list to receive vegetarian
meals.
McKeown later approved Mestre’s request for vegan meals. Mestre does not allege
that McKeown had any part in his occasionally receiving meat or animal by-products in his
meals. Giving him the benefit of the doubt, Mestre’s claim against McKeown appears to
be that she was negligent, which does not rise to the level of a violation of the RLUIPA or
his constitutional rights. See Lovelace v. Lee, 472 F.3d 174, 196 (4th Cir. 2006) (holding
12

evidence that prison officials acted negligently fails to support a claim under the RLUIPA);
Thompson v. Scott, 86 F. App’x 17, 18 (5th Cir. 2004) (“Negligence does not suffice to
support a section 1983 claim.”).
McKeown also argues that Mestre cannot state a §1983 claim against her because
she was not acting under the color of state law in helping the prison to process his request
for vegan meals.12 In her motion, she points out that she is employed by the Reading
Berks Conference of Churches, not the Department of Corrections. In responding, Mestre
concedes her volunteer status, but adds that “Chaplain McKeown [sic] job maded [sic] her
an entity acting under color of state law.”13
The Third Circuit has not determined whether a prison chaplain may be considered
a state actor.14 The courts of appeals that have addressed the issue have adopted
different approaches, resulting in contrary outcomes.15 Pursuant to Lugar v. Edmondson
Oil Co., 457 U.S. 922, 937 (1982), courts often determine whether a chaplain-defendant’s
12
Although not raised by Chaplain McKeown, the RLUIPA also applies to any person “acting under
color of State law.” 42 U.S.C. § 2000cc-5(4)(A)(iii).
13

Pl.’s Mot. to Strike Mot. to Dism iss, at 2 (Doc. 34).

14

One district court in the Third Circuit addressed this issue and held that a full-tim e prison chaplain,
em ployed by a private organization, was acting under the color of state law in engaging in a consensual sexual
relationship with an inm ate when he was supposed to be giving her spiritual guidance. Stubbs v. DeRose,
No. 03-2362, 2007 W L 776789, at *3-5 (M.D. Pa. Mar. 12, 2007); cf. Pineda-Morales v. De Rosa, No.
03-4297, 2005 W L 1607276, at *14 (D.N.J. July 6, 2005) (holding that defendant-chaplains are state actors
under the RLUIPA's predecessor statute, the Religious Freedom Restoration Act (RFRA), but distinguishing
§ 1983 “under color of State law” requirem ent from that of the RFRA’s).
15

Compare Montano v. Hedgepeth, 120 F.3d 844, 851 (8th Cir. 1997) (holding that prison chaplain's
decision to bar inm ate from religious service based on the inm ate's beliefs was an ecclesiastical, not an
adm inistrative or m anagerial function, and therefore the chaplain was not operating under the color of state
law), and Florer v. Congregation Pidyon Shevuyim, 639 F.3d 916, 927 (9th Cir. 2009) (relying, in part, on
Montano and holding that chaplain was not operating under the color of state law in denying inm ate’s request
for a Torah, Jewish calendar, and visit from rabbi based on chaplain's determ ination that inm ate was not
Jewish), with Phelps v. Dunn, 965 F.2d 93, 102 (6th Cir. 1992) (holding prison chaplain was acting under the
color of State law in barring a gay inm ate from attending religious services because the chaplain’s “right to
conduct services in the prison chapel was a privilege created by the state”).
13

challenged conduct served an ecclesiastical or administrative function in determining
whether her conduct is fairly attributable to the state. See Florer v. Congregation Pidyon
Shevuyim, 639 F.3d 916, 924-25 (9th Cir. 2011); Montano v. Hedgepeth, 120 F.3d 844,
851 (8th Cir. 1997). Because Mestre has not stated a claim under the RLUIPA or § 1983,
we need not determine whether McKeown was acting under color of state law.
Conclusion
Having failed to state a claim under the RLUIPA and § 1983, Mestre’s complaint
shall be dismissed with prejudice. Because any attempt to cure the deficiencies would be
futile, we shall not grant leave to amend the complaint.

14