Petition for Writ of Certiorari — Wilkinson v. Flagner

UP Cie

“O41 324 Aue 23 2001

OFFICE OF THE CLERK

No.

In The Supreme Court Of The United States

REGINALD A. WILKINSON, et al..

Petitioners,

v.

HBRANDON LEE FLAGNER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BETTY D. MONTGOMERY

Attorney General of Ohio

DAVID M. GORMLEY*

State Solicitor

*Counsel of Record

TODD R. MARTI

Assistant Solicitor

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-8980

QUESTION PRESENTED

Under Turner vy. Safley, 482 U.S. 78, 89 (1987), “when a

prison regulation impinges on inmates’ constitutional rights,

the regulation is valid if it is reasonably related to legitimate

penological interests.”

Does Turner require courts to conduct a personally-tailored

review for each inmate who challenges such a regulation,

forcing the government to show on a case-by-case basis why

that particular inmate must obey the regulation, or may the

government instead satisfy Turner and compel all inmates to

comply with each generally-applicable prison regulation by

showing that the regulation is rationally related to the

government’s legitimate penological interests for the prison

population as a whole?

PARTIES TO THE PROCEEDING

Petitioners are Reginald Wilkinson, Harry Russell,

Curtis Wingard, Bobby Couch, David Gardener, Jack Walker

and Ron Half, each of whom works for the State of Ohio in

the Ohio Department of Rehabilitation and Correction,

Respondent is an inmate at the Ross Correctional

Institution in Chillicothe, Ohio.

TABLE OF CONTENTS

Page

Question Presented ...............cccccccccsscrccessscesssecsoes unnumbered

Parties to the Proceeding ..........cccceeseeeeeeeeeeereeneees unnumbered

Table Of Authorities ......ccccccccccccssscccscccccccccccccccccccccssscccscccecees il

Opinions Below .........cccccessesesseseeseessetaneenearenstenennseneneenenseees I

SEO... cnorenstscenenteranssnsénsnsheseceoubesanssenssneconasoananssseueenenee 2

Constitutional And Statutory Provisions Involved................. 2

BE TIOI .nccscrsenesescssanssescovncsesenessonescnsssonsonnsesssesosnsscsnscesecoes 3

TNIIIIIIIIN, .._..cnssiecsessatapsnecedssnanebdounsennicossenssennsanenessgbbesnendiasensees 5

Reasons For Granting The Petition...............::ccsseeeseeeeennesenes 8

a The Circuits Are Divided On The Question

PIII ceccsesccrceccsnecesecssonscecscsteccesounssecnanesenossactinssacetes 9

Il. The Decision Below Conflicts With This

Court’s Own Precedentts. ................ccccsssscssssssersceeeeeee 11

Ill. | The Appellate Court’s Judgment Will Impact

Prisons, Jails and Courts Significantly. ................++ 15

CI sestsiniabensinedadssassoinnnbensnebiosalte 17

TABLE OF AUTHORITIES

Page

Cases:

Amatel v. Reno,

156 F.3d 192 (D.C. Cir. 1998), cert.

demied,, SZ7 US. VWGSS (1GF9) .ccccrcrnescscsccsccesssscscossnsasssonses 9

Bell v. Wolfish,

BOE UF, BI CEG Te saticenescinnsnnnincsntinniarnnsntinitnbinanianitinnnics 12

Cole v. Flick,

758 F.2d 124 (3rd Cir. 1985), cert.

Gonbad, 4F4 US. S23 (UDG) csssesinsssccssssscsassannsnaoncstns 10, 11

‘Employment Division v. Smith,

BIG CED, S78 CRG iccetncsciitssensnsnnnnnnsininnsasavinninasucnasanisen 14

Friedman vy. Arizona,

912 F.2d 328 (9th Cir. 1990), cert. denied,

GS OIE. FT Cire Piccrcctcnshscntssinniictiiaccanndandaineneninnni 10, 11

Fromer v. Scully,

PS FOG Ge GRR CAR, FSF cnccsneicncsessarsssnnnescensessnies 10, 11

Goldman v. Weinberger,

BIS UID, Fae Cee icttceittcaneassinnniiteeniitnapaseaneniisininanianian 13, 14

Green v. Polunsky,

22D F368 £06 ORs Cae. FID wseinctnscrcrcsanisenssccsninanennsensvan 10

Hall v. Bellmon,

COS Fe 9 AS CI CO, CID ccicentntnensisccintannenctrniinnmnen 10

Hamilton v. Schriro,

74 F.3d 1545 (8th Cir. 1996), cert. dénied,

mie FS | nn NPE RN Apes nDNA EET 10

Harlow v. Fitzgerald,

IT Uae eC A ieicenncinisiasninintclalalineaaaiaiiatinaa ei 6

Harris v. Chapman,

97 F.3d 499 (11th Cir. 1996), cert. denied,

Se Ole Sar CET Piccccccsnciistsceaiahicadceumidanasaiitaanteciaitess 10

Herlein v. Higgins,

SFe Fe Vee Cen Gt. FFF Fe tcikcis innate 10

Hewitt v. Helms,

BP Shes Ae & OD Riisdsathienthsinntlsitatiiiiaididignmdnadsinieamnasn 12

Hicks v. Garner,

OP FS 25 Cee Ga, 89D caneinieanndememiaeds 10

Hines v. South Carolina Department of Corrections,

Oe Fe Ce Gi FED itssacctnceausetanncntmmisan 10

Hudson v. Palmer,

BGS UE, SUF Ce ientdennapidldhtanabpietateiemeianaa ay

Lewis v. Casey,

PEW Uri: DP Ce pinincsicanicnsgsneincianoademiiban aoe 12

In re Long-Term Administrative Segregation

of Inmates,

174 F.3d 464 (4th Cir. 1999), cert. denied,

Re ies REG Ca niiicicthstchinetindscactaainaccilpemieaiaiaiaiiliaiieaneah oes 9

O'Lone v. Estate of Shabazz,

Re Ei Fe CF ET Piscine secienisisiieiteniaiipsincbabanaiiaaiaaciaa 16

iV

Pollock v. Marshall,

845 F.2d 656 (6th Cir.), cert. denied, 488 U.S.

B97 (1988)........cceccccscesccesccssesssessenseessensenssssssensnnsssesessnnsnses 7

Shaw v. Murphy,

121. S. Ct. 1475 (2001)... cccccceseeseeesenennenseensnnnennnsnnannnes i4

Thompson v. Souza,

LLL F.3d 694 (9th Cir, 1997) ......cccccccereeeeneerennnensnnnnennns 10

Thornburgh v. Abbott,

490 U.S. 401 (1989)... ccccecceeeeeeeeneeteeeeeenneeeenneeneanes 4,11

Turner v. Safley,

482 U.S. 78 (1987)........cccccccceeeeeneeeteeesseneeeeeeeesnenns passim

Washington v. Harper,

494 U.S. 210 (1990).......ccccccecsseeceseeeeeennenssnnnesteneesnnneannees 16

Waterman v. Farmer,

183 F.3d 208 (3rd Cir. 1999) ......ccccccecseeeeeenneeeeneeneeenennnnnes )

STATUTES

2B U.S.C. IDSA 1) .corccecccccccccscceccccsescoccsscssccnsesosscccscssosssssoosnesees 2

42 UGC. 1GB3 caccarscreraserecesesecessascssscsnsecssossnccsnassssescccenssoceton oD

Ohio Admin. Code 5120-9-25(D).........ssssssssssseseseseneseeeeeeneneed

Ohio Admin. Code 5120-9-25(F) ........ssssssssssssesessseseseseseee dy D

MISCELLANEOUS

A. Beck and P. Harrison, Prisoners in 2000

(Bureau of Justice Statistics, U.S. Dept. of

Temata: TEN}... .cconencccensseotacssassunmievnbsntasensqnsustboadsecsenieans 15

L. Meachum, Judicial Business of the United

States Courts: 2000 (Administrative Office

of the U.S. Courts 2001)....... scisaisinnbhieaiaduanebanngiaumionnaianaittt 17

In The Supreme Court Of The United States

No.

REGINALD WILKINSON, et al.,

Petitioners,

V.

HBRANDON LEE FLAGNER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Attorney General of Ohio, on behalf of

defendants Reginald Wilkinson, Harry Russell, Curtis

Wingard, Bobby Couch, David Gardener, Jack Walker, and

Ron Half, respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at 241

F.3d 475. Pet. App. la-32a. The opinions of the district

court are unreported. Pet. App. 35a-42a and 43a-48a. The

i)

report and recommendation of the magistrate judge is

unreported. Pet. App. 49a-67a.

JURISDICTION

The court of appeals entered judgment on

February 22, 2001. The court of appeals denied a timely

petition for rehearing on May 25, 2001. Pet. App. 33a-34a.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The First Amendment to the United States

Constitution provides, in pertinent part, that “Congress shall

make no law . . . prohibiting the free exercise [of religion].”

2. The Fourteenth Amendment to the United States

Constitution states, in relevant part, that “No state shall make

or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

state deprive any person of life, liberty, or property, without

due process of law.”

3. Respondent filed suit under 42 U.S.C. 1983, which

states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, 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

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress. . . .

4. Section 5120-9-25(F) of the Ohio Administrative

Code imposes regulations for the “[a]ppearance and

grooming of male inmates” in Ohio’s prisons, and states:

“Sideburns, beards, and moustaches must be neatly trimmed.

Facial hair must not protrude more than one-half inch from

the skin.”

INTRODUCTION

This petition presents an important question about

prison administration on which the circuit courts of appeals

are now divided. The question is whether state prison

officials must justify the enforcement of generally-applicable

rules on a case-by-case basis whenever a prisoner challenges

one of those rules. In this case, the court of appeals held that

a prisoner may seek injunctive relief to block the

enforcement of a prison regulation whenever state officials

have not shown that the particular prisoner-plaintiff poses the

kind of security risk that the regulation is designed to

prevent. The court’s willingness to let the prisoner’s suit

proceed in this case, notwithstanding the fact that the

regulation he challenges on free-exercise grounds is

generally-applicable, religion-neutral and entirely reasonable

for the prison population as a whole, is in direct conflict with

the ruling of all other circuit courts of appeals on this same

issue.

Those other courts have held — and properly so — that

a prison regulation valid on its face can be enforced across

the board against all prisoners, whether or not each of them

poses a particular danger of the type that the regulation is

designed to prevent. The reasoning of those other courts is

sound — and the conflicting approach of the Sixth Circuit is

unsound — for a very practical reason: state prison officials

are ill-equipped to implement general regulations in a

patchwork pattern based on the individual dangers posed by

each prisoner, and any effort to impose on each prisoner only

those regulations deemed reasonably necessary to keep each

particular prisoner in line is simply not feasible in large state

prisons where typically hundreds of regulations apply.

Indeed, the very process of exempting some prisoners from

rules that others must follow creates in the prison setting the

type of resentment among the inmates that prison officials try

to lessen by imposing regulations that treat all prisoners

alike.

In ruling as it has, the court of appeals has ignored

this Court’s directive that rigorous scrutiny is simply “not

appropriate for consideration of regulations that are centrally

concerned with the maintenance of order and security within

prisons.” Thornburgh v. Abbott, 490 U.S. 401, 410 (1989).

Time and again, this and lower federal courts have explained

that “separation of powers concerns counsel a policy of

judicial restraint” when prison policies designed by the other

branches of government are under attack. Turner v. Safley,

482 U.S. 78, 85 (1987). The approach of the court of appeals

turns that “deference to the appropriate prison authorities,”

id., on its head, subjecting state officials to suit in the federal

courts whenever any particular inmate objects to the

imposition on him of a generally-applicable prison

regulation.

Because the appellate court’s errant approach

mistakenly forces state prison officials to design

individualized rules tailored to each inmate’s own level of

dangerousness, and because that approach stands as an

outlier next to the proper approach followed in other federal

courts, we respectfully ask the Court to grant certiorari in this

case.

STATEMENT

Respondent Hbrandon Lee Flagner is an Ohio prison

inmate who seeks monetary damages and an injunction

barring state officials from cutting his facial hair. Flagner,

who has been imprisoned since 1986, became an Orthodox

Hasidic Jew in 1991, and he alleges that his religious faith

prohibits him or others from shaving or cutting his beard.

The various state officials whom Flagner has sued

under 42 U.S.C. 1983 do not dispute the sincerity of

Flagner’s religious beliefs, and do not question the relevant

tenets of his religious faith. However, Ohio’s religion-

neutral prison regulations direct that inmates’ facial hair

“must not protrude more than one-half inch from the skin,”

Ohio Admin. Code 5120-9-25(F), and state that hair on the

scalp must be no “more than three inches” in length. Ohio

Admin. Code 5120-9-25(D). Prison officials’ efforts to force

Flagner to comply with this hair-length restriction prompted

his lawsuit in 1996.

Both Flagner and the defendant state officials sought

summary judgment in the district court. In ruling on the

parties’ motions, the magistrate judge applied Turner v.

Safley, 482 U.S. 78, 89 (1987), which held that “when a

prison regulation impinges on inmates’ constitutional rights,

the regulation is valid if it is reasonably related to legitimate

penological interests.” Thus, in weighing the merits of

Flagner’s First Amendment free-exercise claim, the

magistrate judge considered the penological interests

supporting Ohio’s hair-length regulation.

Se

The defendant state officials argued that the

regulation furthers legitimate penological interests by (1)

preventing inmates from hiding drugs or weapons in their

beards, (2) eliminating extra staff time spent checking for

those items, (3) controlling the use of long hair or beards as

gang symbols within state prisons, and (4) ensuring that

inmates who escape from custody cannot alter their

appearance quickly by cutting previously-lengthy hair or

beards. Pet. App. 60a-63a. The magistrate judge concluded

that genuine factual disputes existed on those claims, so he

recommended that both Flagner’s and the defendants’

summary judgment motions be denied. Pet App. 67a.

The district court adopted the magistrate judge's

recommendation, agreeing that a jury should decide whether

Ohio’s hair-length regulations are “reasonably related to

legitimate penological interests,” even though the court of

appeals had rejected two earlier First Amendment challenges

to those very regulations. Pet. App. 46a-47a.

The defendant state officials then filed a second

summary judgment motion, arguing that they are entitled to

qualified immunity on Flagner’s claim for monetary

damages. The district court again denied the motion, finding

that “material issues of fact exist as to the legitimacy of

defendants’ proffered justifications for enforcing the hair

regulation against plaintiff.” Pet. App. 40a.

The defendant state officials then appealed. The

court of appeals held, as had the district court, that Ohio

officials were required to show that the hair-length regulation

was “reasonably related to legitimate penological interests.”

Pet. App. Ila (citing Turner v. Safley, 482 U.S. 78, 89

(1987)). But in weighing whether state officials had violated

a “clearly established statutory or constitutional right{] of

which a reasonable person would have known,” Harlow v.

—

Fitzgerald, 457 U.S. 800, 818 (1982), the district court had

erred, according to the court of appeals. Pet. App. 13a.

Noting that the court of appeals itself had previously upheld

an earlier version of the Ohio prison grooming regulation in a

case involving a Lakota American Indian, see Pollock v.

Marshall, 845 F.2d 656, 659-60 (6th Cir.), cert. denied, 488

U.S. 897 (1988), the court of appeals concluded that the

defendant state officials in this case had not violated a

“clearly established” right by likewise insisting that Flagner

cut his beard. Pet. App. 14a. The court of appeals therefore

concluded that the defendant state officials were entitled to

qualified immunity on Flagner’s claim for money damages,

and so reversed the district court’s denial of the defendants’

second summary judgment motion on that claim.

Turning to Flagner’s claim for declaratory and

injunctive relief, however, the court of appeals found that

Flagner had “presented sufficient evidence to raise questions

about the validity of the defendants’ asserted penological

interests.” Pet. App. 16a. The court of appeals found at least

some of the security and staffing concerns offered by the

defendant state officials in support of the hair-length

regulation to be “facially appealing.” Pet. App. 19a, but

found those concerns unjustified in this case, because Flagner

himself had never posed a security threat. See Pet. App. 18a

(“no contraband has ever been recovered by prison staff

during any search of his beard and sidelocks”), Pet. App. 19a

(‘no additional staff members were ever hired and no

overtime was ever authorized to accommodate increased

security demands caused by Flagner”); Pet. App. 20a (“there

is no evidence in the record that Flagner’s beard and

sidelocks have ever been mistaken for a ‘gang identifier’”);

Pet. App. 21a (“there is no evidence in the record that he has

ever attempted to escape from prison”).

Concluding that the defendant state officials “may be

exaggerating their response to the potential security threats”

‘ posed by long facial hair because Flagner himself had never

posed a security concern, the court of appeals found that

Flagner had “called into question the credibility” of the state

officials’ concerns, and so he was entitled to have a jury hear

his claims for declaratory and injunctive relief. Pet App.

23a-24a. The court of appeals remanded the case for further

proceedings on Flagner’s claims for declaratory and

injunctive relief.

Judge Nelson disserited. Though he agreed that

qualified immunity barred Flagner from pursuing his claim

for damages against the defendant state officials, he argued

that summary judgment for the defendants was warranted on

Flagner’s remaining claims as_ well. Judge Nelson

challenged the appellate court’s conclusion that the

“reasonably related to legitimate penological interests” test

from Turner, 482 U.S. at 89, should be, in Judge Nelson's

words, “tailored to the plaintiff's individual circumstances”

as the court’s approach in this case suggests. Pet. App. 27a.

Noting that Ohio’s prison inmate population was 45,540 as

of January 2001, Judge Nelson argued that state prison

officials ought to be free to apply religion-neutral regulations

like the Ohio hair-length requirement to all prisoners without

having to justify those regulations on a “case-by-case basis.”

Pet. App. 28a, 32a.

REASONS FOR GRANTING THE PETITION

The Court should review the judgment below for

three reasons. First, the decision of the court of appeals

conflicts with decisions from other circuits. Second, the

appellate court’s decision is at odds with this Court's own

precedents involving prisoners and the free exercise clause.

Third, the judgment below will have a far-ranging effect on

prison operations, and will likely trigger a_ significant

increase in prisoner lawsuits.

I. The Circuits Are Divided On The Question

Presented.

The decision below has created a direct conflict on

the question presented. Six other circuits (the District of

Columbia Circuit and the Third, Fourth, Fifth, Eighth and

Ninth Circuits) have adopted the exact opposite approach to

the one chosen by the Sixth Circuit. Indeed, we have found

no other decisions that agree with the Sixth Circuit’s analysis

of this important issue involving prisoner lawsuits. See

Amatel v. Reno, 156 F.3d 192, 201 (D.C. Cir. 1998)

(applying Turner v. Safley to a ban on funding for sexually

explicit materials in federal prisons, and rejecting a “detailed

prisoner-by-prisoner . . . sifting to determine whether a

particular publication will harm the rehabilitation of a

particular prisoner”); id. at 202-03 (“The question [under

Turner] is not whether curtailment of pictorial smut will

advance the prison’s rehabilitative project, but whether

Congress could reasonably have believed that it would do

so.”), cert. denied, 527 U.S. 1035 (1999); Waterman vy.

Farmer, 183 F.3d 208, 216, 217 (3rd Cir. 1999) (applying

Turner to a ban on pornographic materials in a state prison,

and rejecting a “case-by-case analysis” of the question

because “as long as the statute is rational, it clears Safley’s

_first hurdle,” and “New Jersey could rationally have seen a

connection between pornography and rehabilitative values”)

(quotations omitted); /n re Long-Term Administrative

Segregation of Inmates, 174 F.3d 464, 470 (4th Cir. 1999)

(applying Turner to prison director’s designation of a

religious group as a security threat, and explaining that

“{a]llowing prison officials to act only after a demonstration

of individual dangerousness would deprive them of the all-

important option of prevention”), cert. denied, 528 U.S. 874

10

(1999); Hicks v. Garner, 69 F.3d 22, 24 (Sth Cir. 1995)

(rejecting Rastafari inmate's free-exercise challenge to

prison’s ban on long hair and beards, despite prisoner's claim

that the ban should not have been applied to him because he

was segregated from the general prison population, and so,

he claimed, “the penological interests of safety and

identification do not apply to him” and “serve no valid

purpose’’); Herlein v. Higgins, 172 F.3d 1089, 1091 (8th Cir.

1999) (applying Turner in rejecting a prisoner's challenge to

a state prison ban on the possession of music cassettes

carrying warnings about explicit lyrics, explaining that

“nothing in our cases . . . requires actual proof that a

legitimate interest will be furthered by the challenged

policy”); Thompson v. Souza, 111 F.3d 694, 702-03 (9th Cir.

1997) (rejecting a prisoner's attack on prison strip search and

drug testing policy where the prisoner himself had no history

of drug abuse).

The conflict exists not only on the general issue of the

type of review that Turner demands for prison regulations,

but also on the particular regulation that the court of appeals

studied. for several other circuits have rejected challenges to

prison hair-length policies. See Fromer v. Scully, 874 F.2d

69. 74-76 (2nd Cir. 1989) (rejecting prisoner’s challenge to a

hair-length regulation); Cole v. Flick, 758 F.2d 124, 130-31

(3rd Cir. 1985) (same), cert. denied, 474 U.S. 921 (1985);

Hines y. South Carolina Dep't of Corrections, 148 F.3d 353,

358 (4th Cir. 1998) (same); Green v. Polunsky, 229 F.3d 486,

490-91 (Sth Cir. 2000) (same); Hamilton v. Schriro, 74 F.3d

1545. 1554-55 (8th Cir. 1996) (same), cert. denied, 519 U.S.

874 (1996); Friedman vy. Arizona, 912 F.2d 328, 331-33 (9th

Cir. 1990) (same), cert. denied, 498 U.S. 1100 (1991); Hall

v. Bellmon, 935 F.2d 1106, 1114 (10th Cir. 1991) (same);

Harris vy. Chapman, 97 F.3d 499, 503-04 (11th Cir. 1996)

(same), cert. denied, 520 U.S. 1257 (1997). And those other

circuits have done so even in the absence of any evidence

that the plaintiff-prisoners had engaged in the misconduct

that the regulations sought to prevent. See, e.g., Fromer, 874

F.2d at 75 (upholding beard-length regulation for prisoners

even though state officials “could offer no examples of

contraband discovered in inmates’ beards,” and rejecting the

view that prison administrators are “obliged to wait passively

for inmates to disrupt prison security before acting”); Cole,

758 F.2d at 131 (upholding hair-length regulation for

prisoners, explaining that “the mere fact that the

Commonwealth did not provide documentary support for the

opinions testified to by its experts is not a sufficient basis for

the [district] court to have concluded that the proffered

justification is unreasonable”); Friedman, 912 F.2d at 332

(upholding prison no-beard policy that state officials had

justified “on the basis of anticipated security problems,”

explaining that “requiring concrete evidence to support the

regulation ... would create a conflict with Turner”).

In ruling that the federal courts should weigh on a

case-by-case basis any legal challenges to generally-

applicable (and religion-neutral) prison regulations like

Ohio’s beard-trimming requirement, the court of appeals has

departed from the uniform course set by other lower courts.

The issue is an important one, and it merits review now.

Il. The Decision Below Conflicts With This Court’s

Own Precedents.

The individualized case-by-case approach called for

by the court of appeals in cases involving the validity of

prison regulations runs counter to this Court's own

precedents. The Court has consistently recognized that

“{s]ome latitude in anticipating the probable consequences of

allowing certain [conduct] . . . in a prison environment 1s

essential to the proper discharge of an administrator’s duty.”

Thornburgh v. Abbott, 490 U.S. 401, 409 (1989) (quoting

}?

Procunier v. Martinez, 416 U.S. 396, 414 (1974)). And the

Court has just as consistently rejected the suggestion that

those officials may not act to address perceived dangers until

they “can compile a dossier” demonstrating the necessity for

specific preventive actions. Bell v. Wolfish, 441 U.S. 520,

§51 n.32 (1979) (quoting Jones v. North Carolina Prisoners’

Labor Union, 433 U.S. 119, 133 (1977)).

Likewise, the appellate court's focus on respondent

Flagner’s behavior in prison, and the court's conclusion that

he therefore need not necessarily comply with prison

regulations designed to avert misbehavior generally among

the prison population, does not square with this Court's view

that “prison administrators necessarily draw on more than the

specific facts surrounding a particular incident” in_ the

process of “assessing the seriousness of a threat to

institutional security.” Hewitt v. Helms, 459 U.S. 460, 474

(1983). This Court has therefore “rejected the case-by-case

approach to the ‘reasonableness’ inquiry in favor of an

approach that determines the reasonableness of contested

practices in a categorical fashion.” Hudson v. Palmer, 468

U.S. 517. 538 (1984) (O'Connor, J., concurring). See also

Turner, 482 U.S. at 91-92 (holding that a ban on inmate-to-

inmate correspondence was rationally connected to the goals

of maintaining security and suppressing gang activity,

without requiring specific evidence that such correspondence

had led to violence or gang activity in the past).

The approach of the court of appeals undermines the

ability of prison officials to impose generally-applicable,

proactive security measures, for evidently they must now

decide whether those measures should apply to each prisoner

based on that prisoner's past record while incarcerated. That

is just the approach already rejected by this Court in Lewis v.

Casey, 518 U.S. 343 (1996). In that case, as here, a district

court had struck a generally-applicable prison regulation,

13 -

holding that it could be enforced “[ojnly if prison

administrators c[ould] ‘documen|t]’ an individual prisoner's”

past history of misconduct. /d. at 391 (Thomas, J.,

concurring). This Court rejected that “‘one free bite’

approach,” id., yet the court of appeals has now revived that

notion, holding that Flagner need not comply with prison

regulations until prison officials demonstrate that he in

particular poses a security risk.

The decision below contradicts this Court’s free-

exercise precedents as well. In Goldman v. Weinberger, 475

U.S. 503, 509 (1986), the Court disapproved the view that

“the First Amendment requires the Air Force to make an

exception to its uniform dress requirements for religious

apparel unless the accouterments create a ‘clear danger’ of

undermining” military interests. Though the serviceman in

that case “argue[d] that the Air Force failed to prove that a

specific exception for his practice of wearing an unobtrusive

yarmulke would threaten discipline,” and though he faulted

the Air Force for citing “no support from actual experience or

a scientific study in the record” that might demonstrate the

importance of the military's dress regulations, this Court

described those arguments as “quite beside the point.” /d.,

475 U.S. at 509. The Court explained that the decision about

those dress regulations was a matter for the “appropriate

military officials” to decide, even if the “military's perceived

need for uniformity” has the “effect . . . [of] restrict{ing] the

wearing of the headgear required by” some service members’

religious beliefs. /d., 475 U.S. at 510.

The same is true here, for just as the Air Force in that

case did not need to prove that granting a religious exemption

to the serviceman would hamper the military’s legitimate

objectives, and just as the Air Force likewise did not need to

wait until that serviceman himself had hampered those

objectives before compelling him to comply with the dress

regulations, so Ohio prison officials ought not be forced to

justify to a federal court their efforts to enforce the beard-

length restriction against respondent Flagner. The strong

deference afforded by the Court to the military officials in

Goldman should apply no less to the prison administrators in

this case. ~

And of course the Court held in an oft-cited free-

exercise case that “generally applicable, religion-neutral laws

that have the effect of burdening a particular religious

practice need not be justified by a compelling governmental

interest.” Employment Division v. Smith, 494 U.S. 872, 886

n.3 (1990). Resolving free-exercise questions differently

could very well force judges to “weigh the social importance

of all laws against the centrality of all religious beliefs.” /d.

at 890. That alternative approach — one seemingly adopted

by the court of appeals in this case — is all the more troubling

in the prison context, where this Court has said that the

federal courts should not be “the primary arbiters of what

constitutes the best solution to every administrative

problem,” and where government regulations are not subject

to a “strict scrutiny” or “least restrictive alternative” test.

Turner, 482 U.S. at 89, 90.

No doubt, the government’s prison regulations —

including those that impact some prisoners’ religious

activities or beliefs — should be reasonably tied to legitimate

government interests. But the appellate court’s view that no

such general regulation may be enforced against a prisoner

until the government shows that the regulation is warranted

for that particular prisoner simply is not supported by this

Court's past decisions. The “Turner factors concern only the

relationship between the asserted penological interests and

the prison regulation,” Shaw v. Murphy, 121 S. Ct. 1475,

1480 (2001), rather than the relationship between the

prisoner’s particular circumstances and the regulation.

Flagner seeks, and the court below granted, a

privilege not afforded to ordinary citizens outside the prison

setting. Though no motorist on the road can rightly argue

that he should be exempt from obeying speed limits or other

traffic laws until the government proves that he in particular

poses a danger on the highways, that is just the argument that

Flagner makes — and that the court of appeals has adopted —

in his effort to avoid compliance with Ohio’s beard-trimming

regulation for state prisoners. This Court has never adopted

that approach when reviewing prisoners’ rights cases, and

because the judgment below has done so, this case deserves

review.

Ill. The Appellate Court’s Judgment Will Impact

Prisons, Jails and Courts Significantly.

Aside from the new legal course that the judgment

below charts for the handling of prisoner lawsuits, that

judgment carries significant real-world adverse consequences

for prison administrators. Though prison officials generally

aim to “anticipate security problems,” Turner, 482 U.S. at 89,

in order to prevent those problems from occurring in the first

place, the approach of the court of appeals turns that goal on

its head, forcing prison officials to act only in response to

documented security problems on an individual-inmate basis.

That reactive-not-proactive approach to rule-making

and rule-enforcement in the prison context is both dangerous

and unworkable. More than 137,000 inmates are housed in

the public prisons of the four States in the Sixth Circuit.

A. Beck and P. Harrison, Prisoners in 2000 (Bureau of

Justice Statistics, U.S. Dept. of Justice 2001) at 3, 7.

According to the court of appeals, any generally-applicable

regulation to which any of those prisoners objects must be

tailored to match closely that particular prisoner’s past

history. That individual tailoring of regulations will sap state

resources and manpower, and will undercut the enforcement

of all but the most innocuous of state regulations. If prison

officials must justify their efforts to shave the beards and clip

the hair of each prisoner, those officials will likewise have

little power in other areas of prison management as well.

And the mere act of exempting certain prisoners from

general regulations in the prison context poses its own

concerns for state officials. “[S]pecial arrangements for one

group would create problems as other inmates . . . [would]

perceive favoritism,” thereby causing “undesirable results in

the institution.” O’Lone v. Estate of Shabazz, 482 U.S. 342,

353 (1987) (quotations omitted). If the judgment below

stands, many state prison officials may well forgo the

enforcement of some restrictions entirely, rather than battling

prisoners on a case-by-case basis, leaving some prisoners

resentful and others defiant when the restrictions are imposed

on some but not others. That outcome will in turn leave all

prisoners and staff at greater risk due to the overall

diminution in security caused by the administrators’ inability

to enforce regulations — like Ohio’s hair-length rule — that the

administrators deem important.

Moreover, prison restrictions far afield from the First

Amendment free-exercise context will be affected by the

decision of the court of appeals. This Court’s Turner

decision, on which the Sixth Circuit’s judgment purports to

rest, applies “in all cases in which a prisoner asserts that a

prison regulation violates the Constitution, not just those in

which the prisoner invokes the First Amendment,” because

“the standard of review . . . adopted in Turner applies to all

circumstances in which the needs of prison administration

implicate constitutional rights.” Washington v. Harper, 494

U.S. 210, 224 (1990). The approach adopted below will

therefore control such legally diverse and operationally

17

sensitive matters as search policies, library access; visiting

procedures, drug testing, inmate housing and _ job

assignments.

Even beyond prison walls, the judgment below will

impact the federal courts themselves. With more than

137,000 inmates housed in prisons and jails in the States of

the Sixth Circuit, if just one percent of those prisoners sue —

like respondent Flagner — for an exemption from enforcement

of one or more disagreeable prison regulations, more than

1,300 new suits will be filed in the district courts of the Sixth

Circuit. That total would more than double the number of

prisoner suits pending in those courts. L. Meachum; Judicial

Business of the United States Courts: 2000 (Administrative

Office of the U.S. Courts 2001), 150 Table C-3A (showing

1,009 prisoner civil rights and conditions cases pending in

the district courts of the Sixth Circuit). That troubling — but

entirely likely — result warrants the attention of this Court

now.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General of Ohio

DAVID M. GORMLEY*

State Solicitor

*Counsel of Record

TODD R. MARTI

Assistant Solicitor

August 2001