APP NO. _________
`
`---------------------------
`
`IN THE SUPREME COURT OF THE UNITED STATES
`
`---------------------------
`
`JIM CARMACK,
`
`Petitioner,
`
`v.
`
`MARK JANNY,
`
`Respondent.
`
`---------------------------
`
`On Application for an Extension of Time
`to File Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Tenth Circuit
`
`---------------------------
`
`PETITIONER’S APPLICATION TO EXTEND TIME
`TO FILE PETITION FOR WRIT OF CERTIORARI
`
`
`
`
`JOHN J. BURSCH
` Counsel of Record
`ALLIANCE DEFENDING FREEDOM
`440 First Street, N.W., Suite 600
`Washington, D.C. 20001
`(616) 450-4235
`jbursch@ADFlegal.org
`
`Counsel for Petitioner
`
`

`

`To the Honorable Neil M. Gorsuch, as Circuit Justice for the United States Court of
`
`Appeals for the Tenth Circuit:
`
`
`
`Pursuant to this Court’s Rules 13.5, 22, 30.2, and 30.3, Petitioner Jim Carmack
`
`respectfully requests that the time to file his Petition for Writ of Certiorari in this
`
`matter be extended for 60 days up to and including January 3, 2022. The Court of
`
`Appeals issued its opinion on August 6, 2021. (Appendix (“App.”)). Absent an
`
`extension of time, the Petition for Writ of Certiorari would be due on November 4,
`
`2021. Petitioner has filed this Application more than 10 days before that date. See S.
`
`Ct. R. 13.5. This Court would have jurisdiction over the judgment under 28
`
`U.S.C. 1254(1). Respondent Janny consents to this extension request. Respondent
`
`Gamez did not provide a timely response.
`
`Background1
`
`Jim Carmack was formerly the Director of the Denver Rescue Mission, a
`
`religious nonprofit that strives to change lives in the name of Christ by meeting the
`
`physical and spiritual requirements of those in need with the goal of launching them
`
`into society as productive, self-sufficient citizens. Occasionally, Mr. Carmack agreed
`
`to take in parolees who the State of Colorado requires to have a residence of record
`
`where they spend certain hours each day. But the Denver Rescue Mission had no
`
`contract or formal agreement with the State to provide housing to parolees.
`
`
`1 For purposes of this summary, Mr. Carmack accepts Mr. Janny’s disputed factual
`allegations as true because the district court granted summary judgment in Mr.
`Carmack’s favor.
`
`1
`
`

`

`Mark Janny was a parolee in need of a residence of record because his parents
`
`would not allow him to return home. Mr. Janny had a checkered parole history. Twice
`
`in a span of two months, he was arrested while on parole for violating curfew and
`
`failing to appear for a parole appointment. Mr. Janny’s parole officer, John Gamez,
`
`sought to have his parole revoked but the Colorado Parole Board dismissed Officer
`
`Gamez’s complaint without prejudice.
`
`When Mr. Janny was released, Officer Gamez restarted proceedings to revoke
`
`his parole. But those procedures took time, so Officer Gamez began looking for a place
`
`for Mr. Janny to stay where he would be closely supervised and not exposed to illegal
`
`drugs. Officer Gamez reached out to Mr. Carmack, his friend and former parolee, who
`
`agreed to do Officer Gamez a favor and provide Mr. Janny with a residence of record
`
`at the Mission until his parole was revoked. This was the first time the Mission had
`
`admitted a male parolee into residence.
`
`Officer Gamez signed a directive establishing the Mission as Mr. Janny’s
`
`residence of record. After Mr. Janny arrived at the Mission, Mr. Carmack treated him
`
`like anyone else enrolled in the Mission’s residential program, known as “Steps to
`
`Success,” which combines religion with training, therapy, and case management. The
`
`Mission requires all residents to attend prayer, chapel, Bible studies, and an outside
`
`church service on Sundays, as well as participate in religious counseling. When Mr.
`
`Janny revealed he is an atheist and objected to these requirements, Mr. Carmack
`
`explained that they were an essential part of residing at the Mission.
`
`2
`
`

`

`After more discussion, Mr. Carmack called Officer Gamez to tell him that Mr.
`
`Janny, as an atheist, was not a fit for the Mission’s “Steps to Success” program. But
`
`Officer Gamez told Mr. Carmack that Mr. Janny would follow the program’s rules or
`
`go to jail. Officer Gamez and Mr. Carmack advised Mr. Janny that he could either
`
`stay in the program or return to jail, presumably because the Mission was the only
`
`suitable residence of record available. Mr. Carmack took Mr. Janny to Officer Gamez
`
`for an in-person meeting later the same day. Officer Gamez reiterated to Mr. Janny
`
`that he could either follow the program’s rules or go to jail. Both Officer Gamez and
`
`Mr. Carmack expressed that the program’s rules were the rules of Mr. Janny’s parole.
`
`Officer Gamez also changed Mr. Janny’s curfew time to 4:30 pm at Mr. Carmack’s
`
`request so that he would be present for the Mission’s chapel service at 5:00 pm.
`
`Over the next few days, Mr. Janny attended two Bible studies and a religious
`
`counseling session at the Mission and skipped several morning prayers and evening
`
`chapels. Mr. Carmack warned Mr. Janny that if continued to break the program’s
`
`rules, he would need to leave. After Mr. Janny told Mr. Carmack that he would not
`
`attend an outside service or evening chapel on Sunday, Mr. Carmack instructed Mr.
`
`Janny to leave the Mission.
`
`When Mr. Janny’s electronic-monitoring device registered that he had left the
`
`Mission, Officer Gamez classified him as a potential escapee and had a warrant
`
`issued for his arrest. Mr. Janny was arrested and his parole revoked.
`
`Mr. Janny later filed suit in the U.S. District Court for the District of Colorado
`
`against Officer Gamez, Mr. Carmack, and another Mission employee (who is no longer
`
`3
`
`

`

`involved in this case), alleging they had violated his First Amendment rights. Mr.
`
`Carmack argued that he is not a state actor and should be dismissed from the case.
`
`On summary judgment, the district court agreed because “there is no evidence that
`
`Defendant[ ] . . . represented the state in any capacity.” Janny v. Gamez, No. 1:16-cv-
`
`2840-RM-SKC, 2020 WL 869859, at *2 (D. Colo. Feb. 21, 2020).
`
`Mr. Janny appealed to the Tenth Circuit. The panel majority reversed and
`
`remanded based on its conclusion that Mr. Carmack could be held liable as a state
`
`actor under the joint action and nexus tests. In regard to joint action, the majority
`
`held that a jury could find that Mr. Carmack and Officer Gamez engaged in a
`
`conspiracy to pursue the “common unconstitutional goal” of “coercing Mr. Janny into
`
`Program participation.” App.55. Mr. Carmack treated Mr. Janny like any other
`
`Mission resident and had no authority over his parole requirements. The majority
`
`recognized that “only Officer Gamez could change Mr. Janny’s curfew or send him
`
`back to prison.” App.60. But this made no difference because “Mr. Carmack was
`
`aware of the consequences of his decision to expel Mr. Janny” from the Mission.
`
`App.60. In effect, Mr. Carmack could not legally enforce the Mission’s standard—and
`
`entirely private—religious rules because (1) Colorado required parolees to have a
`
`residence of record and (2) Mr. Janny’s alienation of family left him with no other
`
`appropriate place to go. Accord App.63 (alleging a conspiracy “to force Mr. Janny to
`
`abide by the Program’s religious rules on pain of a return to jail”).
`
`The majority’s nexus analysis similarly faulted Mr. Carmack for circumstances
`
`beyond his control. When Mr. Janny revealed he is an atheist, “Mr. Carmack
`
`4
`
`

`

`appeared set to refuse [him] entry to the Program . . ., before Officer Gamez provided
`
`significant, overt encouragement to ensure Mr. Janny’s enrollment.” App.67. That
`
`“encouragement” from Officer Gamez, in the majority’s view, was enough “to
`
`transform Mr. Carmack into a state actor and qualify his choice to enroll Mr. Janny
`
`in the Mission’s Christian programming as legally that of the state.” App.67–68.
`
`Even though the majority recognized the Mission’s right “to practice its faith
`
`and to impose faith-based requirements on participants in its programs,” App.63 n.9,
`
`the Mission’s First Amendment freedoms—and the troubling results of treating Mr.
`
`Carmack as a state actor—never entered into the Tenth Circuit’s analysis.
`
`Judge Carson dissented. He did “not believe that Mr. Carmack’s willingness to
`
`take in one parolee and his expectation that the parolee abide by house rules so long
`
`as he remained living at the Mission, transformed him into a state actor.” App.76.
`
`Joint action was not present because Mr. Carmack and Officer Gamez had different
`
`goals: “Officer Gamez apparently had a goal to provide all parolees with an address
`
`upon being released on parole. Mr. Carmack, on the other hand, wished to change
`
`peoples’ lives through Christian ministry.” App.75. In fact, “[b]y Mr. Janny’s
`
`admission, Mr. Carmack wanted him out of the program if he was not willing to
`
`participate in the religious programming. This shows the differing goals . . . .” App.75.
`
`Nor was the nexus test satisfied, as Mr. Janny
`
`offered no evidence that a state policy or decision directly resulted in Mr.
`Carmack’s decision to require religious programing. And he has offered
`no evidence that Mr. Carmack required Mr. Janny to participate in
`religious programing but did not require the same of other Mission
`participants not affiliated with the state. So no causal connection exists
`between Mr. Carmack’s conduct and a state policy or decision. App.79.
`
`5
`
`

`

`Judge Carson explained that the majority’s holding leaves religious nonprofits
`
`like the Denver Rescue Mission with two bad options: “(1) they can stop requiring
`
`religious programming—perhaps defeating their core missions; or (2) they can stop
`
`accepting parolees—leaving more individuals who struggle to find a safe place to live,
`
`in jail.” App.69. As Judge Carson recognized, “the potential consequences are severe”
`
`and possibly devastating for religious ministries like the Mission. App.69.
`
`Reasons For Granting An Extension Of Time
`
`
`
`The time to file a Petition for a Writ of Certiorari should be extended for 60
`
`days for the following reasons:
`
`1. Petitioners’ Counsel of Record, John J. Bursch, was not involved in the
`
`litigation below and has only recently been retained to prepare a petition for
`
`certiorari. It will take considerable time for Mr. Bursch to familiarize himself with
`
`the record and prepare a concise petition of maximum helpfulness to the Court. In
`
`addition, Mr. Bursch has numerous litigation deadlines in the weeks leading up to
`
`and following the current deadline:
`
`• Oral argument in the U.S. Court of Appeals for the 6th Circuit on
`October 20, 2021, in Kowall v. Benson, No. 21-1129;
`
`• Answering Brief in the U.S. Court of Appeals for the 9th Circuit on
`October 22, 2021, in Green v. Miss USA, No. 21-25228;
`
`• Reply Brief in the Michigan Supreme Court on October 27, 2021, in
`TruGreen Limited Partnership v. Department of Treasury, No. 163515;
`
`• Amicus Brief in the U.S. Court of Appeals for the 11th Circuit on October
`26, 2021, in Adams v. School Board of St. John’s County, No. 18-13592;
`
`• Reply Brief in the U.S. Court of Appeals for the 6th Circuit on October
`29, 2021, in JPMorgan Chase Bank, NA v. Winget, No. 21-1568;
`
`6
`
`

`

`• Reply Brief in the U.S. Court of Appeals for the 2nd Circuit on October
`28, 2021, in Soule v. Connecticut Association of Schools, No. 21-1365;
`
`• Amicus brief in the U.S. Court of Appeals for the 8th Circuit on
`November 11, 2021, in Planned Parenthood v. Noem, No. 21-2913;
`
`• Petition to Appeal in the Virginia Supreme Court on November 12, 2021,
`in Vlaming v. West Point School Board;
`
`• Reply Brief in this Court on November 15, 2021, in Gordon College v.
`DeWeese-Boyd, No. 21-145;
`
`• Reply Brief in this Court on November 15, 2021, in Seattle’s Union
`Gospel Mission v. Woods, No. 21-144;
`
`• Merits amicus brief in this Court on November 21, 2021, in Shurtleff v.
`Boston, No. 20-1800;
`
`• Reply Brief in the U.S. Court of Appeals for the 7th Circuit on November
`22, 2021, in Kluge v. Brownsburg Community School Corp., No. 21-2475;
`
`• Opening Brief in the U.S. Court of Appeals for the 9th Circuit on
`November 29, 2021, in Tingley v. Ferguson, No. 21-35815;
`
`• Tentative oral argument before the U.S. Court of Appeals for the 4th
`Circuit the week of December 6-10, 2021 in Planned Parenthood South
`Atlantic v. Kerr, No. 21-1043;
`
`• Amicus brief in the Michigan Supreme Court on December 20, 2021 in
`Rouch World v. Michigan Department of Civil Rights, No. 355868; and
`
`• Reply brief in this Court on December 22, 2021, in 303 Creative v. Elenis,
`No. 21-476.
`
`2. This case presents issues of importance to religious ministries whose
`
`employees face potential liability as state actors for First Amendment violations if
`
`the Tenth Circuit’s ruling goes into effect. Any ministry that serves prisoners,
`
`parolees, or others in state custody will be forced to think twice before continuing its
`
`religious work. This detriments the free exercise of religion, which has long
`
`7
`
`

`

`galvanized people of faith to serve prisoners, and deprives parolees who voluntary
`
`enroll in religious programming of help and support that is in short supply.
`
`Other Courts of Appeals have found state employees potentially liable for
`
`requiring prisoners or parolees to participate in religious programming. E.g., Jackson
`
`v. Nixon, 747 F.3d 537 (8th Cir. 2014); Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007);
`
`Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996). But Petitioner is aware of no case, besides
`
`this one, in which the Courts of Appeals have found a religious nonprofit employee
`
`potentially liable as a state actor. The Tenth Circuit’s unprecedented ruling puts
`
`religious ministries across the nation at risk of liability, loss of litigation-insurance
`
`coverage, and possibly even shutting their doors. Given this case’s importance to
`
`religious ministries, Petitioner’s counsel requires additional time to ensure that the
`
`relevant issues are fully and adequately presented to this Court.
`
`3. A significant prospect exists that this Court will grant certiorari and reverse
`
`the Tenth Circuit. The panel’s ruling conflicts with decisions by other Courts of
`
`Appeals on multiple grounds. Even though requiring religious programming may be
`
`unconstitutional for state officials, it is protected First Amendment activity for
`
`religious nonprofits like the Mission and employees like Mr. Carmack. The Tenth
`
`Circuit’s joint-action conspiracy analysis failed to account for this difference.
`
`The Seventh, Ninth, and Eleventh Circuits would have ruled differently
`
`because they look for a conspiracy characterized by a joint intent to violate the
`
`plaintiff’s rights, which is absent when a private party is engaged in constitutionally
`
`protected activity. E.g., Spiegel v. McClintic, 916 F.3d 611, 616 (7th Cir. 2019)
`
`8
`
`

`

`(conspiracy must involve “an understanding to deprive the plaintiff of his
`
`constitutional rights” and “[m]ere allegations of joint action or a conspiracy do not
`
`demonstrate that the defendants acted under color of state law”) (quotations omitted);
`
`Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 840 (9th Cir. 1999) (asking
`
`whether public and private actors “were jointly pursuing an unconstitutional end” or
`
`whether there was a “joint effort to deprive Plaintiff of his constitutional rights”);
`
`Hadley v. Gutierrez, 526 F.3d 1324, 1332, 1332 (11th Cir. 2008) (conspiracy must
`
`involve “the defendants reach[ing] an understanding to deny the plaintiff’s rights”).
`
`The Tenth Circuit also paid no heed to the impact of its state-action ruling on
`
`the Mission’s and Mr. Carmack’s First Amendment rights. It paid lip service, in a
`
`footnote, to the Mission’s right “to practice its faith and to impose faith-based
`
`requirements on participants in its programs.” App.63 n.9. Nonetheless, the Tenth
`
`Circuit exposed the Mission’s former director to liability for exercising that right.
`
`In contrast, the First, Sixth, Seventh, and Ninth Circuits have ruled that no
`
`state action exists based, in part, on private actors’ exercise of their own
`
`constitutional rights. E.g., Tomaiolo v. Mallinoff, 281 F.3d 1, 11 (1st Cir. 2002)
`
`(declining to find state action when doing so “might well chill the exercise of [private
`
`actors’] own rights to communicate with government”); Howell v. Father Maloney’s
`
`Boys’ Haven, Inc., 976 F.3d 750, 754 (6th Cir. 2020) (declining to find state action that
`
`would “cause complications for private entities that provide secular services in the
`
`name of faith-based missions—not as easy a thing to do if the entity becomes a state
`
`actor for federal constitutional purposes); Tarpley v. Keistler, 188 F.3d 788, 796 (7th
`
`9
`
`

`

`Cir. 1999) (declining “to vindicate [the plaintiff’s] First Amendment rights at the
`
`expense of” the private defendant’s); Florer v. Congregation Pidyon Shevuyim, N.A.,
`
`639 F.3d 916, 927 (9th Cir. 2011) (refusing to allow “[c]haplains and religious leaders
`
`[to] automatically become state actors when they provide opinions on matters of
`
`dogma in response to inquiries from prison officials”).
`
`What’s more, this Court recently emphasized that the state-action doctrine
`
`must be applied to “protect[ ] a robust sphere of individual liberty” and cautioned
`
`against courts using it to “restrict[ ] individual liberty and private enterprise.”
`
`Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928, 1934 (2019). The
`
`Tenth Circuit did not heed this Court’s instructions and, in fact, did the exact
`
`opposite. And its ruling hinders ministries’ religious liberty to a dangerous extent.
`
`3. An extension will not cause prejudice to Mr. Janny, who is likely to file his
`
`own reasonable request for an extension of time to prepare his brief in opposition.
`
`Even without Petitioner’s requested extension, Mr. Janny’s own anticipated request
`
`for an extension of time would prevent this Court from hearing oral argument and
`
`issuing an opinion before the October 2022 Term.
`
`
`
`
`
`
`
`
`
`
`
`
`
`10
`
`

`

`Conclusion
`
`
`
`For the foregoing reasons, Petitioners respectfully request that the time to file
`
`the Petition for a Writ of Certiorari in this matter be extended 60 days, up to and
`
`including January 3, 2022.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted.
`
`s/ John J. Bursch
`JOHN J. BURSCH
` Counsel of Record
`ALLIANCE DEFENDING FREEDOM
`440 First Street, N.W.
`Suite 600
`Washington, D.C. 20001
`(616) 450-4235
`jbursch@ADFlegal.org
`
`
`
`
`
`
`
`11
`
`

`

`CERTIFICATE OF SERVICE
`
`
`
`A copy of this application was served by email and U.S. mail to the counsel
`
`listed below in accordance with Supreme Court Rule 22.2 and 29.3:
`
`Charles B. Wayne
`DLA Piper
`500 8th Street, N.W.
`Washington, DC 20004
`charles.wayne@dlapiper.com
`
`Richard B. Katskee
`Americans United for Separation of Church and State
`1310 L Street NW, Suite 200
`Washington, DC 20005
`katskee@au.org
`
`Alexander J. Luchenitser
`Americans United for Separation of Church and State
`1310 L Street NW, Suite 200
`luchenitser@au.org
`
`Daniel Mach
`American Civil Liberties Union
`915 15th Street NW
`Washington, DC 20005
`dmach@aclu.org
`
`Heather L. Weaver
`American Civil Liberties Union
`915 15th Street NW
`Washington, DC 20005
`hweaver@aclu.org
`
`Gregory Bueno
`Office of the Attorney General for the State of Colorado
`Ralph L. Carr Colorado Judicial Center
`1300 Broadway
`Denver, CO 80203
`gregory.bueno@coag.gov
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`s/ John J. Bursch
`JOHN J. BURSCH
`Counsel for Petitioner
`
`12
`
`

`

`APPENDIX
`APPENDIX
`
`

`

`Appellate Case: 20-1105 Document: 010110558381 Date Filed: 08/06/2021 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`August 6, 2021
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`
`
`
`
`No. 20-1105
`
`MARK JANNY,
`
` Plaintiff - Appellant,
`
`v.
`
`JOHN GAMEZ; JIM CARMACK; TOM
`KONSTANTY,
`
` Defendants - Appellees.
`
`------------------------------
`
`MUSLIM ADVOCATES; CENTRAL
`CONFERENCE OF AMERICAN
`RABBIS; DISCIPLES OF CHRIST;
`GLOBAL JUSTICE INSTITUTE; HINDU
`AMERICAN FOUNDATION;
`INTERFAITH ALLIANCE
`FOUNDATION; MEN OF REFORM
`JUDAISM; NATIONAL COUNCIL OF
`CHURCHES; RECONSTRUCTING
`JUDAISM; RECONSTRUCTIONIST
`RABBINICAL ASSOCIATION;
`SAMUEL DEWITT PROCTOR
`CONFERENCE; SIKH AMERICAN
`LEGAL DEFENSE FUND; UNION OF
`REFORM JUDAISM; UNITARIAN
`UNIVERSALIST ASSOCIATION;
`WOMEN OF REFORM JUDAISM;
`WYOMING INTERFAITH NETWORK,
`
` Amici Curiae.
`
`_________________________________
`
`
`
`
`
`App.001
`
`

`

`Appellate Case: 20-1105 Document: 010110558381 Date Filed: 08/06/2021 Page: 2
`
`Appeal from the United States District Court
`for the District of Colorado
`(D.C. No. 1:16-CV-02840-RM-SKC)
`_________________________________
`
`Charles B. Wayne, DLA Piper LLP, Washington, DC (Richard B. Katskee and
`Alexander J. Luchenitser, Americans United for Separation of Church and State,
`Washington, DC; Daniel Mach and Heather L. Weaver, ACLU Program on Freedom of
`Religion and Belief, Washington, DC, with him on the briefs), for Plaintiff – Appellant.
`
`Gregory R. Bueno, Assistant Attorney General, Civil Litigation & Employment Section
`(Philip J. Weiser, Attorney General, with him on the brief), Colorado Attorney General’s
`Office, Denver, Colorado, for Defendant – Appellee John Gamez.
`
`John Lebsack (John Craver, Doug Poling and Jack R. Stokan on the brief), White and
`Steele, P.C., Denver, Colorado, for Defendants – Appellees Jim Carmack and Tom
`Konstanty.
`
`Matthew W. Callahan, Muslim Advocates, Washington, DC, filed a brief on behalf of
`Amici Muslim Advocates, Central Conference of American Rabbis, Disciples of Christ,
`Global Justice Institute, Hindu American Foundation, Interfaith Alliance Foundation,
`Men of Reform Judaism, National Council of Churches, Reconstructing Judaism,
`Reconstructionist Rabbinical Association, Samuel DeWitt Proctor Conference, Sikh
`American Legal Defense Fund, Union of Reform Judaism, Unitarian Universalist
`Association, Women of Reform Judaism, and Wyoming Interfaith Network, in support of
`Plaintiff – Appellant.
`
`_________________________________
`
`Before McHUGH, Circuit Judge, LUCERO, Senior Circuit Judge, and CARSON,
`Circuit Judge.
`
`_________________________________
`
`McHUGH, Circuit Judge.
`_________________________________
`
`Mark Janny was released from jail on parole in early 2015. His parole officer,
`
`John Gamez, directed Mr. Janny to establish his residence of record at the Rescue
`
`Mission in Fort Collins, Colorado, and to abide by its “house rules.” After arriving at the
`
`Mission, Mr. Janny learned he had been enrolled in “Steps to Success,” a Christian
`
`2
`
`
`App.002
`
`

`

`Appellate Case: 20-1105 Document: 010110558381 Date Filed: 08/06/2021 Page: 3
`
`transitional program involving mandatory prayer, bible study, and church attendance.
`
`When Mr. Janny objected, citing his atheist beliefs, he alleges both Officer Gamez and
`
`Jim Carmack, the Mission’s director, repeatedly told him he could choose between
`
`participating in the Christian programming or returning to jail. Less than a week later,
`
`Mr. Carmack expelled Mr. Janny from the Mission for skipping worship services, leading
`
`to Mr. Janny’s arrest on a parole violation and the revocation of his parole.
`
`Mr. Janny brought a 42 U.S.C. § 1983 suit against Officer Gamez, Mr. Carmack,
`
`and the Mission’s assistant director, Tom Konstanty, alleging violations of his First
`
`Amendment religious freedom rights under both the Establishment and Free Exercise
`
`Clauses. The district court granted summary judgment to all three defendants, finding
`
`Mr. Janny had failed to (1) adduce evidence of an Establishment Clause violation by
`
`Officer Gamez, (2) show Officer Gamez violated any clearly established right under the
`
`Free Exercise Clause, or (3) raise a triable issue regarding whether Mr. Carmack and
`
`Mr. Konstanty were state actors, as required to establish their liability under either clause.
`
`Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court’s
`
`order as to Officer Gamez and Mr. Carmack, and we affirm as to Mr. Konstanty. Viewed
`
`in the light most favorable to Mr. Janny, the evidence creates a genuine dispute of
`
`material fact regarding his claims under both the Establishment and Free Exercise
`
`Clauses. And because the basic right to be free from state-sponsored religious coercion
`
`was clearly established under both clauses at the time of the events, Officer Gamez is not
`
`entitled to qualified immunity on either claim. We further hold the evidence sufficient for
`
`a jury to find Mr. Carmack was a state actor, as required to impose § 1983 liability on
`3
`
`
`App.003
`
`

`

`Appellate Case: 20-1105 Document: 010110558381 Date Filed: 08/06/2021 Page: 4
`
`private parties. However, because no facts link Mr. Konstanty to Officer Gamez, the
`
`evidence is legally insufficient for a jury finding that Mr. Konstanty acted under color of
`
`state law.
`
`I. BACKGROUND
`A. Factual History1
`
`In early December 2014, Mark Janny began 24 months’ parole with the Colorado
`
`Department of Corrections. His assigned parole officer was John Gamez.
`
`Later that month, Mr. Janny was arrested for violating curfew and failing to appear
`
`for a required parole appointment. Officer Gamez sought revocation of Mr. Janny’s
`
`parole on this basis. Mr. Janny was jailed until early January 2015. Several days later,
`
`Mr. Janny was again arrested for violating curfew and again jailed, this time until early
`
`February, when the Colorado Parole Board dismissed Officer Gamez’s parole revocation
`
`complaint without prejudice.
`
`Upon Mr. Janny’s release the night of February 2, 2015, his friend collected him
`
`from the jail. Mr. Janny spent that night at this friend’s house in Loveland, Colorado.
`
`The next morning, February 3, Mr. Janny’s friend drove Mr. Janny to a meeting
`
`with Officer Gamez at the Fort Collins parole office. As a standard condition of parole,
`
`Mr. Janny was required to establish a “residence of record” where he would remain each
`
`night. App. 221. Having been kicked out of his parents’ house, Mr. Janny proposed the
`
`
`1 Because summary judgment requires viewing the facts in the light most
`favorable to the nonmoving party, and drawing reasonable inferences therefrom, we
`adopt Mr. Janny’s version of the facts for purposes of this appeal. See Part II.A, infra.
`
`4
`
`
`App.004
`
`

`

`Appellate Case: 20-1105 Document: 010110558381 Date Filed: 08/06/2021 Page: 5
`
`home of his friend in Loveland, who had consented to hosting Mr. Janny while on parole.
`
`Officer Gamez rejected this proposed residence because he believed Mr. Janny’s friend
`
`was involved in illegal drug use.
`
`Mr. Janny’s parole agreement also required him to follow the directives of his
`
`parole officer. At the February 3 meeting, Officer Gamez issued a written parole directive
`
`for Mr. Janny to establish the Fort Collins Rescue Mission (the “Mission”) as his
`
`residence of record “and abide by all house rules as established.” App. 251. The directive
`
`stipulated that any violation of these “house rules” would lead to Mr. Janny “being placed
`
`at Washington County jail to address the violation.” App. at 251. There was no
`
`discussion about what was meant by “house rules.”
`
`Officer Gamez explained that he was friends with Jim Carmack, the Mission’s
`
`director, and that the two of them had arranged for Mr. Janny’s stay at the Mission.
`
`Officer Gamez told Mr. Janny he was to stay there until Officer Gamez could reinstate
`
`the parole revocation complaint and bring Mr. Janny in front of the Parole Board.
`
`Mr. Janny objected to staying at the Mission, and asked to speak with Officer Gamez’s
`
`supervisor, Lorraine Diaz de Leon. Officer Gamez said Ms. Diaz de Leon had already
`
`approved the directive and was unavailable to speak to Mr. Janny.
`
`Both Mr. Janny and Officer Gamez signed the directive establishing the Mission
`
`as Mr. Janny’s residence of record. Officer Gamez gave Mr. Janny an electronic
`
`monitoring device and scheduled a follow-up meeting for the next morning, February 4.
`
`Officer Gamez ended the February 3 meeting by telling Mr. Janny to report immediately
`
`to the Mission, where staff would be expecting him.
`5
`
`
`App.005
`
`

`

`Appellate Case: 20-1105 Document: 010110558381 Date Filed: 08/06/2021 Page: 6
`
`***
`The Mission is a Christian community center that provides transitional programs,
`
`emergency shelter and meal services, and agency referrals. Its motto is “Changing lives
`
`in the name of Christ.” App. 281. Among the transitional programs the Mission offered in
`
`February 2015 was “Steps to Success,” which the parties refer to simply as the
`
`“Program.” App. 192–93, 477.
`
`Steps to Success “is a 3 to 10 month transitional, Christian-based program that
`
`provides men and women help to become productive, self-sufficient citizens,” and that
`
`“exposes [participants] to the good news of Jesus Christ in a supportive community.”
`
`App. 197. It combines spirituality—including bible study and Christian worship—with
`
`life-skills workshops, “work therapy,” and case management. App. at 197. Participants
`
`are required to attend a daily morning prayer service and a daily 5:00 p.m. service in the
`
`Mission’s chapel, in addition to an outside church service each Sunday and several
`
`sessions of evening bible study per month. They are also required to observe dorm-style
`
`rules, including set mealtimes and curfew, and to refrain from drugs or alcohol. Among
`
`the express objectives of Steps to Success is for its participants to achieve “Full program
`
`compliance.” App. 193.
`
`The Mission also offers emergency overnight shelter services for adults not in one
`
`of its transitional programs, as well as hot breakfast and dinner. Those staying in the
`
`emergency shelter are not allowed in the Mission prior to 4:30 p.m., and must leave the
`
`dorms by 7:00 a.m. each morning.
`
`***
`
`6
`
`
`App.006
`
`

`

`Appellate Case: 20-1105 Document: 010110558381 Date Filed: 08/06/2021 Page: 7
`
`Mr. Janny reported to the Fort Collins parole office at 9 a.m. on February 4 for his
`
`scheduled follow-up with Officer Gamez. Officer Gamez told Mr. Janny to report
`
`immediately to the parole office if he was kicked out of the Mission, or if the parole
`
`office was closed, to report as soon as it opened. Officer Gamez gave Mr. Janny a parole
`
`revocation summons mirroring the complaint previously dismissed by the Parole Board.
`
`He also programmed Mr. Janny’s electronic monitoring device for a 6:00 p.m. daily
`
`curfew.
`
`Mr. Janny returned to the Mission at around 10:30 a.m. Upon arrival, he met with
`
`Mr. Carmack and Tom Konstanty, the Mission’s assistant director. The two Mission
`
`officials told Mr. Janny he was enrolled in the Program and orientated him to its “[h]ouse
`
`rules.” App. 321. They informed Mr. Janny he was required to attend daily morning
`
`prayer and evening chapel, twice weekly bible study, and an outside church service on
`
`Sunday, and would also be expected to participate in one-on-one religious counseling.
`
`Mr. Carmack further indicated that he was good friends with Officer Gamez, who
`
`was Mr. Carmack’s former parole officer. Officer Gamez and Mr. Carmack had an
`
`“informal arrangement” to house certain parolees at the Mission. App. 186. Mr. Carmack
`
`explained to Mr. Janny that while thus far, the Program had only accepted female
`
`parolees, Mr. Carmack was taking Mr. Janny on as a “guinea pig”—the first male parolee
`
`enrolled in the Program—as a favor to Officer Gamez. App. 31.
`
`Mr. Janny explained to Mr. Carmack and Mr. Konstanty that he is an atheist and
`
`did not want to participate in any religious programming. Mr. Carmack told Mr. Janny
`
`not to express these beliefs while in the Program or to tell anyone he is an atheist.
`7
`
`
`App.007
`
`

`

`Appellate Case: 20-1105 Document: 010110558381 Date Filed: 08/06/2021 Page: 8
`
`Mr. Carmack informed Mr. Janny that regardless of Mr. Janny’s beliefs, Mr. Janny would
`
`participate in the Mission’s religious programming or get kicked out. When Mr. Janny
`
`protested, stating this was a violation of his religious rights, Mr. Carmack told him he had
`
`no religious rights while at the Mission. Mr. Carmack and Mr. Kons