Appendix — Wilkinson v. Flagner

No. Ol - 324

In The Supreme Court Of The United States

REGINALD A. WILKINSON, et al.,

Petitioners,

Vv.

HBRANDON LEE FLAGNER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX TO THE

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

Ie Pe rae ae

TABLE OF CONTENTS

Appendix A (court of appeals’s opinion,

February 22, 2001) (241 F.3d 475).........

Appendix B (court of appeals’s order

denying rehearing, May 25, 2001)..........

Appendix C (district court’s order

denying defendants’ motion for

summary judgment, August 24, 1999)...

Appendix D (district court’s order

adopting magistrate judge’s report and

recommendation, March 29, 1999).........

Appendix E (magistrate judge’s report

and recommendation, February 3, 1999)

SOR OD la

Jigansnned 35a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 99-4145

HBRANDON LEE FLAGNER,

Plaintiff-Appellee,

Ve

REGINALD WILKINSON, et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 96-00887 — Susan J. Dlott, District Judge.

Argued: October 16, 2000

Decided and Filed: February 22, 2001

Before: NELSON and MOORE, Circuit Judges; WILHOIT,

District Judge.”

COUNSEL

ARGUED: Todd R. Marti, OFFICE OF THE ATTORNEY

GENERAL, CORRECTIONS LITIGATION SECTION,

* The Honorable Henry R- Wilhoit, Jr., Chief United States

District Judge for the Eastern District of Kentucky, sitting by

designation.

(la)

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Columbus, Ohio, for Appellants. Michael J. O'Hara,

O’HARA, RUBERG, TAYLOR, SLOAN & SERGFNT,

Covington, Kentucky, for Appellee. ON BRIEF: Todd R.

Marti, OFFICE OF THE ATTORNEY GENERAL,

CORRECTIONS LITIGATION SECTION, Columbus, Ohio,

for Appellants. Michael J. O'Hara, O'HARA, RUBERG,

TAYLOR, SLOAN & SERGENT, Covington, Kentucky, for

Appellee.

MOORE, J.. delivered the opinion of the court, in which

WILHOIT, D. J., joined. NELSON, J., delivered a separate

opinion concurring in part and dissenting in part.

OPINION

KAREN NELSON MOORE, Circuit Judge. The

plaintiff, Hbrandon Lee Flagner, filed a 42 U.S.C. § 1983

action alleging that an Ohio prison grooming regulation

violated his constitutional right to practice his religion. The

defendants ask this court to reverse the district court’s order

denying the defendants’ summary judgment motion based on

qualified immunity, arguing that Flagner has not alleged a

constitutional violation and that the regulation has a valid

penological basis. Based on our precedent in Pollock v.

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

U.S. 897 (1988), we REVERSE the district court’s denial of

the defendants’ motion for summary judgment based on

qualified immunity. We also conclude that Flagner may

bring an as-applied challenge to the Ohio prison grooming

regulation and that there is a factual dispute on the issue of

whether the defendants have a valid penological interest.

Accordingly, we REMAND to the district court so that

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Flagner’s claims for declaratory and injunctive relief may

proceed.

I. BACKGROUND

Flagner has been incarcerated with the Ohio

Department of Rehabilitation and Correction (ODRC) since

1986. Flagner is a practicing Orthodox Hasidic Jew who

brought a § 1983 suit against prison officials challenging the

enforcement of Ohio Administrative Code §§ 5120-9-25 (D)

and (F),' a prison grooming regulation which requires

Flagner to cut his beard and sidelocks, also referred to as

' Ohio Administrative Code § 5120-9-25(D) provides the

following: -

Haircuts shall be provided as needed. Hair and

hairstyles shall be clean, neatly trimmed and shall not

extend over the ears or the shirt collar. Hair and

hairstyle shall not protrude more than three inches

from the scalp. Braids and plaits may be worn subject

to the limitations of this rule. The following

hairstyles or facial hair are not permitted: Initials,

symbois, dyes, multiple parts, hair disproportionately

longer in one area than another (excluding natural

baldness), weaves, wigs, dreadlocks and shaved

heads. Other hairstyles not specifically listed herein

may be prohibited if they are determined to be either a

threat to security or contrary to other legitimate

penological concerns.

Ohio Admin. Code § 5120-9-25(D) (2000) (emphasis added).

Subsection (F) provides, “[sJideburns, beards, and

moustaciies must be neatly trimmed. Facial hair must not

protrude more than one-half inch from the skin.” Ohio

Admin. Code § 5120-9-25(F) (2000) (emphasis added).

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“peos,”” in contravention of the tenets of his religious faith.”

The defendants are ODRC employees who work at either the

> The Code of Jewish Law, Chapter 170, entitled “The

Prohibition Against Shaving the Corners of One’s Head and

Beard” provides the following:

1. [Leviticus 19:27 states: “Do not cut off [the hairs

of] the corners of your heads and do not destroy the

corners of your beards.” Our Sages explain that]

there are two “corners of the head,” the place at which

the skull is attached to the jawbone, near the ear at

both the right and left sides of the head. [Shaving the

hair off the “corners” is forbidden. ]

There are certain opinions that forbid cutting off the

hair with scissors if it is done as effectively as if it

were done with a razor — i.e., removing all the hair,

even that which is closest to the flesh. Therefore, if -

one is required to remove one’s hair for medical

reasons, one should be careful not to remove the hair

closest to the flesh.

The area that is forbidden to be shaved extends from

the hair on one’s temples to below the ear, the place

from which the lower jaw protrudes.

2. The Torah forbade “destroying” the corners of the

beard only with a razor. [Our Sages spoke of] five

comers; [their definition, however, is a matter of

question] and there are many opinions in this regard.

Therefore, a God-fearing person should not pass a

razor over his beard at all. [This includes] also his

mustache and the hair below the chin.

There is no difference between a razor and a sharp

stone that cuts hair, e.g., pumice stone. When using a

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Lebanon Correctional Institution (LeCl) or the Madison

Correctional Institution (MaCI). Flagner was imprisoned at

LeCI from July 8, 1994 to November 20, 1996, and

transferred shortly thereafter to MaCl. Prior to his transfer to

LeCl, Flagner resided at the Mansfield Correctional

Institution. He is currently incarcerated at Ross Correctional

Institution.

In 1987, Flagner began studying Judaism and

formally converted to Orthodox Judaism in 1991 while

incarcerated at the Mansfield Correctional Institution. His

religious affiliation has been recognized by the defendants

and is not in dispute in this case. Flagner testified during the

preliminary injunction evidentiary hearing held on December

3, 1996, that between 1991 when he converted to Judaism

and prior to his transfer to LeCI in 1994, Mansfield prison

officials did not make any effort forcibly to cut his beard or

sidelocks. In fact, a period of five years passed between the

time Flagner converted to Orthodox Judaism in 1991 until his

first forced cutting in 1996.

On January 26, 1996, Flagner was given a direct order

by Defendant Bobby Couch of LeCI, to comply with the

grooming regulation, but Flagner refused, stating his religious

tenets prevented compliance. On February 16, 1996, the

Rule Infractions Board found Flagner guilty of disobeying the

order and sentenced him to time in a disciplinary isolation

salve to remove one’s beard — e.g.. a mixture

containing lime — one should be careful not to scrape

off the substance with a knife, lest one cut off some

hair. Instead, one should scrape it off with a sliver of

wood or the like.

Joint Appendix (“J.A.”) at 140 (Pl.’s Ex. 4, Mem. from

Aleph Inst. regarding Jewish Law) (emphasis added).

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unit. On June 21, 1996, Flagner received another direct order

from Defendant Couch to comply with the grooming

regulation. Flagner then filed a grievance on June 28, 1996,

which was reviewed by Defendant David Gardner, Inspector

of Institutional Services, on July 11, 1996. In his disposition,

Defendant Gardner stated that Flagner was in violation of §

5120-9-25(D) and was required to comply with the

regulation. Failure to comply would subject Flagner to

“appropriate disciplinary action [] [w]hich may include

requiring [Flagner’s] hair to be cut or trim[med] against [his]

will.” Joint Appendix (“J.A.”) at 135 (Disposition of

Grievance Form). Flagner continued to refuse to comply

with the regulation. On July 29, 1996 and in April 1998, the

defendants forcibly cut Flagner’s beard and_ sidelocks.

Between the time of Flagner’s forced cuttings in July 1996

and April 1998, the defendants exempted him and four

Native American inmates from the grooming regulation.

Defendant Curtis Wingard, the warden of MaCl

testified in his deposition that exempting Flagner from the

grooming regulation did not pose additional security

problems at MaCI; no additional security precautions were

taken with Flagner in excess of the security measures taken

with inmates who complied with the grooming regulation.

Defendant Wingard also testified that MaClI has neither been

required to provide additional security, nor to approve

additional overtime to provide security for Flagner and the

four Native Americans who were exempted from the

grooming regulation. The defendants have only searched

Flagner’s beard on less than five occasions. These searches

have typically involved the defendant running his own fingers

through his beard and sidelocks; this process generally took

two to three seconds to complete, and contraband has never

been recoveréd from Flagner’s beard.

Ta

Il. PROCEDURAL HISTORY

On September 6, 1996, Flagner filed a pro se § 1983

action against the Director of ODRC and the warden of LeCl

where he was then incarcerated, alleging violations of his

religious rights. On January 3, 1997, Flagner filed an

amended complaint to include allegations against the warden

at MaCI. The magistrate judge held an evidentiary hearing

on January 9, 1997 regarding Flagner’s motion for a

preliminary injunction to prevent the defendants from

forcibly cutting his beard and sidelocks. On January 14,

1997, the magistrate judge recommended granting Flagner’s

motion for preliminary injunction. The district court reversed

the magistrate judge’s Report and Recommendation and

denied Flagner’s motion in an order filed on August 8, 1997.

The defendants moved for summary judgment on March 27,

1998, and Flagner filed a cross motion for partial summary

judgment on June 8, 1998. On February 3, 1999, the

magistrate judge entered a Report and Recommendation

denying both the defendant’s motion for summary judgment

and Flagner’s cross motion for summary judgment, which the

district court adopted in an order dated March 29, 1999.

On May 13, 1999, the defendants filed a second

motion for summary judgment based on qualified immunity

which is at issue in the present case. On August 24, 1999,

the district court entered an order denying the defendant’s

motion because “[a] reasonable prison official would have

known in 1996 that he could not cut Flagner’s beard and

sidelocks in contravention of his sincerely held religious

beliefs in the absence of legitimate penological interests

relating to the enforcement of the hair length regulation.”

* The district court also incorporated by reference the facts

and analysis of the Turner factors, contained in the Report

and Recommendation filed on February 3, 1999, J.A. at 144-

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J.A. at 236-37 (D. Ct. Order of 8/24/99). The defendants

timely filed their Notice of Appeal on September 20, 1999.

Iii. ANALYSIS

A, Jurisdiction

This court has jurisdiction over the appeal from the

district court’s order because denial of summary judgment

based on qualified immunity is an immediately appealable

collateral order. See Mattox v. City of Forest Park, 183 F.3d

515, 518 (6th Cir. 1999) (citing Mitchell v. Forsyth, 472 US.

511, 525 (1985), which categorized the denial of qualified

immunity as a collateral order under Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541 (1949)). In Johnson v.

Jones, a unanimous Supreme Court held that “a defendant,

entitled to invoke a qualified immunity defense, may not

appeal a district court’s summary judgment order insofar as

that order determines whether or not the pretrial record sets

forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones,

515 U.S. 304, 319-20 (1995).

B. Denial of Qualified Immunity

The determination of whether qualified immunity

applies to an official’s actions is a legal determination that

we review de novo. See Dickerson v. McClellan, 101 F.3d

1151, 1157 (6th Cir. 1996). A motion for summary judgment

will be granted if the evidence presented to the court

demonstrates that there is no genuine issue of material fact

and that the movant is entitled to a judgment as a matter of

law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); Anderson vy. Liberty Lobby, Inc., 477

57, and the March 29, 1999 district court Order adopting it.

See J.A. at 234 (D. Ct. Order of 8/24/99).

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U.S. 242, 247-48 (1986). We must not weigh the evidence,

but rather we must only determine whether there is a factual

dispute that precludes summary judgment. See Liberty

Lobby, 477 U.S. at 249.

In Harlow v. Fitzgerald, the Supreme Court held that

“government officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.” Harlow vy. Fitzgerald, 457 U.S. 800, 818

(1982). Qualified immunity protects public officers “from

undue interference with their duties and from potentially

disabling threats of liability.” /d. at 806. In Butz v.

Economou, the Supreme Court explained that “damages suits

concerning constitutional violations need not proceed to trial,

but can be terminated on a properly supported motion for

summary judgment based on the defense of [qualified]

immunity.” Butz v. Economou, 438 U.S. 478, 508 (1978).

As we explained in Dickerson, the first step in

determining if the defendants are entitled to qualified

immunity is to examine “whether, based on the applicable

law, a constitutional violation occurred.” Dickerson, 101

F.3d at 1157. If a constitutional violation is found, we next

consider whether the violation involved “clearly established

constitutional rights of which a reasonable person would

have known.” /d. at 1158 (quoting Christophel vy.

Kukulinsky, 61 F.3d 479, 484 (6th Cir. 1995)). To determine

whether a constitutional right is “clearly established,” we

“look first to the decisions of the Supreme Court, then to

decisions of this Court and other courts within our circuit,

and finally to decisions of other circuits.’ /d. (quoting

Buckner v. Kilgore, 36 F.3d 536, 539 (6th Cir. 1994) (citation

omitted)). Under this framework, to plead a proper claim

under 42 U.S.C. § 1983, “a plaintiff must identify a right

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secured by the United States Constitution and the deprivation

of that right by a person acting under color of state law,”

Russo vy. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir.

1992), such that “[t]he contours of the right [are] sufficiently

clear that a reasonable official would understand that what he

is doing violates that right.” /d. (quoting Anderson vy.

Creighton, 483 U.S. 635, 640 (1987)).

After determining that a constitutional right is clearly

established, the final step in our qualified immunity analysis

is to inquire “whether the plaintiff has alleged sufficient facts

supported by sufficient evidence to indicate what [the

official] allegedly did was objectively unreasonable in light

of [the] clearly established constitutional rights.” Dickerson,

101 F.3d at 1158 (quoting Adams v. Metiva, 31 F.3d 375, 387

(6th Cir. 1994)). “Summary judgment is not appropriate if

there is a genuine factual dispute relating to whether the

defendants committed acts that allegedly violated clearly

established rights.” /d.

Turning to the first prong of our qualified immunity

analysis, we must ask whether a constitutional violation

occurred. The Supreme Court has recognized that “convicted

prisoners do not forfeit all constitutional protections by

reason of their conviction and confinement in prison.” Bell v.

Wolfish, 441 U.S. 520, 545 (1979). Specifically, the

Supreme Court has held that inmates retain First Amendment

rights, see Pell vy. Procunier, 417 U.S.817, 822 (1974),

including the right to free exercise of religion. See Cruz v.

Beto, 405 U.S. 319, 322 n.2 (1972) (concluding that

“reasonable opportunities must be afforded to all prisoners to

exercise the religious freedom guaranteed by the First and

Fourteenth Amendment without fear of penalty”). A prisoner

alleging that the actions of prison officials violate his

religious beliefs must show that “the belief or practice

asserted is religious in the person’s own scheme of things”

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and is “sincerely held.” Kent v. Johnson, 821 F.2d 1220,

1224 (6th Cir. 1987). :

In this case, the sincerity of Flagner’s religious beliefs

is not in dispute. Flagner alleges that application of §§ 5120-

9-25(D) and (F) violated his First Amendment free exercise

rights. He asserts that despite his efforts to prevent prison

officials from violating the tenets of his religious faith, the

defendants forcibly cut his beard and sidelocks in 1996 and

1998.

The Supreme Court has held that in most

circumstances, prison officials “should be accorded wide-

ranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional

security.” Wolfish, 441 U.S. at 547. “To ensure that courts

afford appropriate deference to prison officials,” the Supreme

Court has “determined that prison regulations alleged to

infringe constitutional rights are judged under a

‘reasonableness’ test less restrictive than that ordinarily

applied to alleged infringements of — fundamental

constitutional rights.” O’Lone v. Estate of Shabazz, 482 U.S.

342, 349 (1987). In Turner v. Safley, the Supreme Court

articulated the proper standard as follows: “when-a prison

regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89

(1987).

We agree with the district court’s conclusion in its

March 23, 1999 Order adopting the magistrate judge’s Report

and Recommendation that the proper standard to apply in

prisoner cases challenging restrictions on the free exercise of

religion is supplied by the Supreme Court’s decision in

Turner, not by Employment Division, Department of Human

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Resources of Oregon v. Smith, 494 U.S. 872 (1990).* In

Smith, the Supreme Court concluded “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.” /d. at 886 n.3.

Following the Smith decision, Congress enacted the

Religious Freedom Restoration Act (RFRA) which was later

held unconstitutional by the Supreme Court in City of Boerne

v. Flores, 521 U.S. 507, 511 (1997). As the district court and

magistrate judge correctly recognized, after the Boerne

decision, our Circuit has consistently applied the pre-RFRA

standard set forth in Turner to evaluate challenges by

prisoners to restrictions on the free exercise of religion. See,

e.g., Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999)

(applying the Turner standard to evaluate First Amendment

free exercise challenges to prison regulations).

As we explain in Part C, we believe that Flagner has

presented sufficient evidence that application of the

grooming regulation would violate his constitutional rights.

We agree with the district court that “material issues of fact

exist as to the legitimacy of defendants’ proffered

justifications for enforcing the hair regulation against

plaintiff. Plaintiff has come forward with evidence from

which a trier of fact could reasonably conclude that

defendants’ enforcement of the grooming regulation against

plaintiff was an exaggerated response to or not done for the

asserted security concerns.” J.A. at 236 (D. Ct. Order of

8/24/99). Under the Supreme Court’s decision in Johnson

we would not be able to exercise appellate jurisdiction

because the Court has held that “a defendant, entitled to

invoke a qualified immunity defense, may not appeal a

* This Order dated March 23, 1999 was listed in the

defendants’ Notice of Appeal but was not included by the

parties in the Joint Appendix.

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district court’s summary judgment order insofar as that order

determines whether or not the pretrial record sets forth a

‘genuine’ issue of fact for trial.” Johnson, 515 U.S. at 319-

20. In this case, with respect to the first prong of the

qualified immunity analysis, there are genuine issues of

material fact as to whether a constitutional violation

occurred.

Our qualified immunity analysis, however, does not

end here. We must now consider the district court’s legal

conclusion that “[a]t the time of plaintiff’s initial forced

haircut in 1996, the law was clearly established that prisoners

retain the right to religious freedom and that prison officials

may not deny inmates a reasonable opportunity of pursuing

[their] faith comparable to the opportunity afforded fellow

prisoners who adhere to conventional religious precepts.”

J.A. at 235 (D. Ct. Order of 8/24/99) (quotation omitted)

(emphasis added). In light of our decision in Pollock, we

hold that the district court erred in concluding that the law

was Clearly established.

Flagner bears the burden “to allege and prove that the

defendant official violated a clearly established constitutional

right.” Buckner, 36 F.3d at 539. In Pollock v. Marshall, we

upheld the application of an earlier version of the challenged

Ohio prison grooming regulation in an action involving a

Lakota American Indian who sought to enjoin prison officials

from cutting his hair in violation of his religious beliefs. See

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

denied, 488 U.S. 897 (1988). We held that “[a]fter balancing

the defendant’s interest in keeping prisoners’ hair short

against the right of the plaintiff to exercise the religion of the

Lakota Indians, . . . the regulation restricting hair length, as

applied to the plaintiff, is not unconstitutional.” — /d.

(emphasis added). The defendants in Pollock raised several

legitimate penological - concerns such as, “[q]uick

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identification, removal of a place to hide small contraband,

prevention of sanitation problems,” and increased risk of

sexual attacks on inmates with longer hair because “||]onger

hair increases the attractiveness of an inmate to other

inmates.” /d. at 659.

Although Pollock involved a challenge by a Lakota

American Indian to an earlier version of § 5120-9-25(F) and

in this case, Flagner, an Hasidic Orthodox Jew, brings a

challenge to the current §§ 5120-9-25(D) and (F), “it need

not be the case that ‘the very action in question has

previously been held unlawful.” Dickerson, 101 F.3d at 1158

(quoting Anderson, 483 U.S. at 640). To deny qualified

immunity protection to the defendants, the law requires that

“in the light of pre-existing law the unlawfulness must be

apparent.” /d. (quoting Anderson, 483 U.S. at 640).

Based on our decision in Pollock which upheld an

application of the challenged prison regulation, we conclude

that Flagner’s right to grow his beard and sidelocks in

contravention of the Ohio prison grooming regulation at the

time of his forced cutting was not “sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Russo, 953 F.2d at 1042 (quoting

Anderson, 482 U.S. at 640). We also recognize that our

decision in Pollock has been followed in several unpublished

opinions upholding the application of the Ohio prison

grooming regulation at issue in this case. Because Flagner

has not satisfied his burden to establish that the “defendant

official[s] violated a clearly established constitutional right,”

Buckner, 36 F.3d at 539, the defendants are entitled to

qualified immunity solely with respect to Flagner’s money

damages claims. It is thus unnecessary for us to consider the

final prong of the qualified immunity analysis. Accordingly,

we REVERSE the district court’s denial of summary

judgment to the defendants based on qualified immunity.

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C. Declaratory and Injunctive Relief

The defense of qualified immunity protects officials

from individual liability for money damages but not from

declaratory or injunctive relief. See Collyer v. Darling, 98

F.3d 211, 228 n.18 (6th Cir. 1996), cert. denied, 520 U.S.

1257 (1997); Cagle v. Gilley, 957 F.2d 1347, 1350 (6th Cir.

1992). Thus, our reversal of the district court’s denial of

summary judgment based on qualified immunity does not

preclude Flagner from going forward with his as-applied

challenge to the Ohio prison grooming regulation insofar as

he seeks declaratory and injunctive relief. “In considering a

challenge to a prison policy as applied, the proper inquiry is

whether the actions of the prison officials are reasonably

related to legitimate penological interests.” Skelton v. Pri-

Cor, Inc., 963 F.2d 100, 103 (6th Cir. 1991), cert. denied,

503 U.S. 989 (1992) (citing Thornburgh v. Abbott, 490 U.S.

401 (1989)).

Flagner seeks declaratory and injunctive relief to

prevent the defendants from forcibly cutting his beard and

sidelocks in the future. Although we relied on our decision

in Pollock to conclude here that the defendants are entitled to

qualified immunity with respect to Flagner’s damages claims,

our holding in Pollock does not necessarily resolve the

question of whether the defendants may in the future,

continue forcibly to cut Flagner’s beard and sidelocks.

Inmates retain rights to free exercise of religion.

Prison officials may impinge on these constitutional rights

only if the regulation “is reasonably related to legitimate

penological interests.” Turner, 482 U.S. at 89. While courts

should generally defer to the expertise of prison officials in

matters involving prison administration, this deference is

only afforded “in the absence of substantial evidence in the

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record to indicate that the officials have exaggerated their

response.” Wolfish, 441 U.S. at 548. The plaintiff here,

unlike the plaintiff in Pollock who did not challenge the

factual underpinnings of the prison officials’ justifications,

has presented sufficient evidence to raise questions about the

validity of the defendants’ asserted penological interests.

As the Supreme Court directed in Turner v. Safley,

courts employ a four-factor analysis to determine whether a

prison regulation is reasonably related to legitimate

penological interests.” See Spies, 173 F.3d at 403 (citing

> Judge Nelson’s reliance on Spies v. Voinovich, 173 F.3d

398, 403-04 (6th Cir. 1999), for the proposition that under

Turner, courts are not to subject challenged prison

regulations to “a four-factor analysis tailored to the plaintiff's

individual circumstances” ignores controlling Supreme Court

precedent. In Thornburgh v. Abbott, the Supreme Court

considered both a facial and an as-applied challenge to a

federal prison regulation concerning the receipt of

subscription publications by inmates. See Thornburgh v.

Abbott, 490 U.S. 401, 403 (1989). Applying the Turner

analysis, the Court concluded that the prison regulation at

issue was facially valid; however, the Court remanded to the

district court for further examination of the plaintiffs’ as-

applied challenges concerning 46 publications introduced at

trial. Jd. at 404. Under Judge Nelson’s interpretation of

Turner, as-applied challenges to prison regulations would be

virtually impossible. The Supreme Court’s decision in

Abbott, however, demonstrates that under Turner, plaintiffs

may pursue as-applied challenges to facially valid prison

regulations.

Moreover, in Spies, we upheld the constitutionality of

a prison regulation prohibiting inmate-led groups, concluding

that Turner factors three and four “do not cut in favor of

Spies, for he has also not demonstrated that the safety

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Turner, 482 U.S. at 89). These factors are not necessarily

weighed evenly, see id. at 403-04, but rather they are

guidelines for the court to assess whether the prison officials’

actions are reasonably related to a valid penological basis.

See Whitney v. Brown, 882 F.2d 1068, 1076 (6th Cir. 1989).

Under the first factor, the court must consider whether there

is “a valid, rational connection between the prison regulation

and the legitimate governmental interest put forward to

justify it.” Turner, 482 U.S. at 89 (quotation omitted). “[A]

regulation cannot be sustained where the logical connection

between the regulation and the asserted goal is so remote as

to render the policy arbitrary or irrational.” /d. at 89-90.

The final three Turner factors should be balanced

together. The second Turner factor to consider is “whether

there are alternative means of exercising the right that remain

open to prison inmates.” Turner, 482 U.S. at 90. The third

Turner factor we consider “is the impact accommodation of

the asserted constitutional right will have on guards and other

inmates, and on the allocation of prison resources generally.”

Id. “When accommodation of an asserted right will have a

significant ‘ripple effect’ on fellow inmates or on prison staff,

concerns of prison officials related to accommodating his

requests are exaggerated and does not offer any ‘alternative

means’ by which prison officials can mollify their security

concerns.” Spies, 173 F.3d at 406. Thus, our own analysis in

Spies demonstrates that “the plaintiff's individual

circumstances” are indeed relevant in applying the Turner

analysis. Unlike the inmate in Spies, Flagner has presented

sufficient evidence that the prison officials’ response to a

supposed security concern was exaggerated. See discussion

infra Part If1.C.1. Flagner has also offered an alternative

means which would accommodate his religious beliefs “at de

minimis cost to valid penological interests.” Turner, 482

U.S. at 91; see also discussion infra Part III.C.2.

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courts should be particularly deferential to the informed

discretion of corrections officials.” /d. With respect to the

fourth Turner factor, “the absence of ready alternatives is

evidence of the reasonableness of a prison regulation.” /d.

Likewise, “the existence of obvious, easy alternatives may be

evidence that the regulation is not reasonable, but is an

‘exaggerated response’ to prison concerns.” /d. “This is not

a ‘least restrictive alternative’ test: prison officials do not

have to set up and then shoot down every conceivable

alternative method of accommodating the claimant's

constitutional complaint.” /d. at 90-91. However, “if an

inmate claimant can point to an alternative that fully

accommodates the prisoner's rights at de minimis cost to

valid penological interests, a court may consider that as

evidence that the regulation does not satisfy the reasonable

relationship standard.” /d. at 91.

1. Turner Factor One

In consideration of the first Turner factor, we now ask

whether there is a “valid, rational connection between the

prison regulation and the legitimate governmental interest put

forward to justify it.” Turner, 482 U.S. at 89 (quotation

omitted). Defendant Wingard stated that the prison grooming

regulation is necessary because “[l]ong hair and thick, full

beards and sideburns provide good hiding places for such

contraband as drugs and weapons.” J.A. at 80 (Wingard Aff.,

q 4). In the past, Defendant Wingard has recovered items

such as tobacco, marijuana, and a razor blade from the hair of

Ohio inmates. J.A. at 80 (Wingard Aff., § 4). However, with

respect to Flagner specifically, no contraband has ever been

recovered by prison staff during any search of his beard and

sidelocks.

The defendants next assert that the grooming

regulation is necessary to promote their “compelling interest

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in Maintaining security within Ohio's prisons by freeing staff

members from the increased demands on their time that

would otherwise result from the more frequent, wide ranging

and lengthier searches that would be necessary to attempt to

control contraband.” J.A. at 81 (Wingard Aff., 4 6).

Defendant Wingard continued, “additional staff are simply

not available to conduct the more frequent and time

consuming searches that would be necessary if the Hair

Length Regulations were not consistently enforced.” J.A. at

82 (Wingard Aff.. § 7). Despite this facially appealing

justification, Defendant Wingard conceded that no additional

staff members were ever hired and no overtime was ever

authorized to accommodate increased security demands

caused by Flagner and the four Native American inmates

when they were exempted from the regulation. J.A. at 260,

298 (Wingard Dep.). Moreover, the defendants are unaware

of any additional security precautions that were ever taken on

account of Flagner that exceeded the security precautions

taken for inmates who complied with the hair length

regulation. J.A. at 260 (Wingard Dep.). Defendant Wingard

was also unaware of any security problems specifically

attributed by prison staff to Flagner’s beard and sidelocks.

J.A. at 260 (Wingard Dep.).

The defendants also contend that the regulation

“further[s] the compelling interest in maintaining security in

Ohio's prisons by reducing the danger of injury to staff

members and the tension that would otherwise follow from

the increased close and/or physical contact resulting from the

more frequent and more invasive searches that would be

necessary to deal with contraband in inmates’ hair.” J.A. at

82 (Wingard Aff., § 8). This rationale, however, is

completely undermined by the fact that these cursory

searches required minimal, if any, physical contact between

the prison staff and Flagner, and involved Flagner running his

own fingers through his beard and sidelocks, which took

20a

approximately two to three seconds to perform. Furthermore,

the defendants have only searched Flagner’s beard and

sidelocks on a few occasions. Assuming that “(t]he potential

for injury to staff increases in direct proportion to the extent

of their physical contact and physical proximity to inmates,”

J.A. at 82 (Wingard Aff., § 8), given the minimal contact

between the staff and Flagner and the infrequency of

searches, which he essentially performs on himself, the risk

of increased injury to the defendants caused by exempting

Flagner from the regulation appears to be nominal.

Next, the defendants proffer that the grooming

regulation is justified because it reduces gang activity by

suppressing “gang identifiers.” J.A. at 87 (Wingard Aff., §

17). According to Defendant Wingard, the regulation

promotes uniform appearance “that allows corrections

officials to more. readily detect the use of hair as an

identifier”; moreover, “limitations on the quantity of hair on

an inmate[]’s head limits the number of ways in which the

hair style can be modified for use as. an identifier.” J.A. at 88

(Wingard Aff., § 21). Although it may be true that the

challenged grooming regulation, as a general matter, helps

alleviate the proliferation of “gang identifiers,” there is no

evidence in the record that Flagner’s beard and sidelocks

have ever been mistaken for a “gang identifier.”

Next, the defendants assert that the grooming

regulation is needed to promote ready identification of

escaped inmates. Allowing an inmate to grow “long hair or a

thick, full beard can [permit the inmate to] dramatically alter

his appearance upon escape by changing his hair and beard

length and/or style.” J.A. at 89 (Wingard Aff., 4 24). The

defendants argue that it is administratively burdensome to

update continually their record of inmate photographs if

inmates were allowed to alter their appearance by growing

long hair or thick facial hair. The defendants further contend

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that “it is essential to distribute an accurate picture of an

escapee as quickly as possible after an escape and having to

distribute multiple pictures is more difficult.” J.A. at 90

(Wingard Aff., | 25).

The grooming regulation, however, does not

completely prevent the risk of an escapee altering his own

appearance after escaping from prison. With respect to

Flagner specifically, there is no evidence in the record that he

has ever attempted to escape from prison. In addition to a

photograph of Flagner, the defendants also have on file four

professionally-made sketches of him bearing various beard

and sidelock lengths and one sketch of Flagner with no facial

hair at all. In the event that Flagner ever escaped from

prison, these sketches would help to identify him because

they show a range of his possible appearances.

Finally, the defendants argue that “[{l]ong hair can

lead to increased plumbing problems by making clogged

drains more frequent.” J.A. at 91 (Wingard Aff., 4 27). Even

if we were to assume this to be true as a general matter, there

is no evidence in the record that any clogged drains were ever

attributed to Flagner’s beard or sidelocks.

Based on the defendants’ asserted justifications,

followed by Flagner’s demonstration of the lack of a factual

basis for those justifications as applied to himself, the first

Turner factor weighs heavily in favor of Flagner. The

defendants have not had any security problems with Flagner,

nor have they spent additional resources to provide extra

security to perform searches of his beard and sidelocks. The

defendants have multiple sketches of Flagner for ready

distribution if he ever escaped. Finally, nothing in the record

suggests that Flagner’s beard and sidelocks have ever clogged

the sinks or showers of the prison.

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2. Turner Factors Two, Three, and Four.

Looking to the second Turner factor, there are no

alternatives that remain open to Flagner in the exercise of his

religion should the grooming regulation be upheld. None of

the other aspects of Flagner’s religion could ever compensate

for the fact that an essential tenet of his religious beliefs

prevents him from cutting his beard or sidelocks, and that

enforcement of the grooming regulation would require the

plaintiff to violate this very tenet.

As to the third Turner factor, the evidence in the

record shows that no prison resources were ever diverted to

accommodate the plaintiff and the then-exempted Native

American inmates. J.A. at 294 (Wingard Dep.). The

defendants also admitted that no extra guards were ever hired

or Overtime authorized to respond to additional security risks

by Flagner and the other then-exempted inmates. J.A. at 260,

298 (Wingard Dep.). There is also no evidence in the record

that other inmates resented Flagner because he was allowed

at One time to grow out his beard and sidelocks.

The lack of an undue impact “on guards and other ~

inmates, and on the allocation of prison resources generally,”

Turner, 482 U.S. at 90, also speaks to the final factor which

is that having Flagner search his own beard is an “alternative

that fully accommodates the plaintiff at de minimis cost to

valid penological interests.” /d. at 91. The defendants have

already admitted that the accommodation of Flagner and the

four Native American inmates did not cause the institution

any financial hardship. J.A. at 294 (Wingard Dep.).

On balance, the second, third, and fourth Turner

factors also weigh heavily in favor of Flagner because they

demonstrate a lack of viable alternatives for Flagner to

exercise his religion should the regulation be upheld, as well

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as the absence of an undue negative impact on the prison

community and its resources. Thus, looking at the totality of

all four Turner factors, Flagner has presented sufficient

evidence which raises serious questions concerning the

validity of the defendants’ asserted penological interests. As

we noted earlier, courts generally defer to the expertise of

prison officials “in the adoption and execution of polices and

practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional

security.” Wolfish, 441 U.S. at 547. In Brown v. Johnson,

we concluded that “[a]s long as prison authorities present

evidence to support their judgment that prison security will

be undermined in the absence of a challenged regulation, we

will not substitute our judgment for theirs.” Brown vy.

Johnson, 743 F.2d1408, 412-13 (6th Cir. 1984), cert. denied

sub nom. Inosencio vy. Johnson, 469 U.S. 1215 (1985).

However, we afford no deference to the policies and

judgments of prison officials if there is “substantial evidence

in the record to indicate that the officials have exaggerated

their response.” Pell, 417 U.S. at 827.

Consistent with these principles, in Whitney v. Brown

we held that a prison policy which prohibited the

intercomplex travel of six Jewish inmates for Sabbath

services and annual Passover Seders was “an exaggerated

response to speculative security objectives, and, therefore it

[wa]s invalid.” Whitney, 882 F.2d at 1078. In Whitney, we

rejected a conclusory approach where “anything prison

officials can justify is valid because they have somehow

justified it.” Jd. at 1074. Like the defendants in Whitney, the

defendants here have articulated a list of generalized

concems regarding the impact of exempting Flagner from the

grooming regulation. Flagner, however, has demonstrated

the absence of a factual basis for these penological concerns

and has thereby called into question the credibility of those

assertions. Resolution of these credibility issues can be best

24a

achieved by the trial judge during further proceedings

regarding Flagner’s as-applied challenge to the grooming

regulation.

Flagner is the only Orthodox Jew at MaCl, which has

a population exceeding 2,500 inmates, who is requesting an

exemption from the Ohio prison grooming regulation based

on religious reasons. J.A. at 274-75 (Wingard Dep.). The

fact that the defendants managed to wait five years before

forcibly cutting Flagner’s beard and sidelocks from June

1991 to July 1996 only further suggests that the defendants

may be exaggerating their response to the potential security

threats posed by permitting Flagner to grow his beard and

sidelocks in a manner that is consistent with his religious

beliefs.

Our reversal of the district court’s denial of summary

judgment based on qualified immunity does not preclude

Flagner’s as-applied challenge to the Ohio prison grooming

regulation from proceeding. Accordingly, we REMAND to

the district court for further consideration of Flagner’s claims

for declaratory and injunctive relief.

IV. CONCLUSION

Based upon the foregoing, the district court’s order

denying the defendants’ motion for summary judgment based

on qualified immunity is REVERSED insofar as Flagner

seeks damages. Flagner may, however, continue with his

action seeking declaratory and injunctive relief against the

application of the Ohio prison grooming regulation, having

presented a genuine issue of material fact regarding the

validity of the defendants’ penological justifications for the

regulation. We therefore REMAND to the district court to

allow Flagner’s as-applied challenge seeking declaratory and

injunctive relief to proceed.

CONCURING IN PART, DISSENTING IN PART

DAVID A. NELSON, Circuit Judge, concurring in

part and dissenting in part. I concur in the conclusion that the

qualified immunity doctrine bars plaintiff Flagner from

attempting to mulct the defendants in damages for requiring

him to comply with Ohio’s prison regulation regarding facial

hair. But because I believe that the defendants are entitled to

prevail at the first stage of the qualified immunity analysis —

i.e., because I believe that the application of the regulation to

Mr. Flagner is permissible under the Constitution as a matter

of law — I would not let the claims for declaratory and

injunctive relief go forward.

The district court’s first-stage rationale was as

follows:

“(Material issues of fact exist as to the legitimacy of

defendants’ proffered justifications for enforcing the

hair regulation against plaintiff. * * * Plaintiff has

come forward with evidence from which a trier of fact

could reasonably conclude’ that defendants’

enforcement of the grooming regulation against

plaintiff was an exaggerated response to or not done

for the asserted security concerns.”

My colleagues on the panel agree with this rationale.

I respectfully disagree. I am aware of no basis on which the

regulation could properly be held invalid on its face, and it

seems to me that the very existence of the regulation justifies

its enforcement against M~. Flagner.

Even under the restrictive statutory standard rejected

by the Supreme Court in City of Boerne v. Flores, 521 U.S.

507 (1997), the constitutionality of regulations such as

26a

Ohio’s was routinely upheld. See, for example, Harris v.

Chapman, 97 F.3d 499, 504 (11th Cir. 1996), and Hamilton

v. Schriro, 74 F.3d 1545 (8th Cir. 1996). Post-Boerne

decisions, of course, have reached the same result. See, ¢.g.,

Green v. Polunsky, 229 F.3d 486 (Sth Cir. 2000), and

Kimbrough vy. California, No. 00-15075, 2001 U.S. App.

LEXIS 1864 (9th Cir. 2001). Within this circuit, Ohio’s

prison hair regulation has repeatedly been upheld against

challenges under the Free Exercise Clause of the First

Amendment. See Williams v. Wilkinson, No. 96-3715, 1997

U.S. App. LEXIS 36760 (6th Cir. 1997); Brown v. Wilkerson,

No. 94-4014 (6th Cir. 1995); Pollock v. Marshall, 845 F.2d

656 (6th Cir. 1988). See also Mays v. Wilkinson, No. 98-

3341, 1999 U.S. App. LEXIS 8380 (6th Cir. 1999)

(unpublished order) (affirming dismissal for failure to state a

claim where Ohio hair regulation was challenged under

constitutional provisions other than the Free Exercise

Clause).

I do not read Turner v. Safley, 482 U.S. 78 (1987), as

suggesting that an “as applied” approach can routinely be

used to circumvent a well-established body of law such as

that upholding the Ohio regulation. Speaking through Justice

O’Connor, the Turner Court noted that “[r]unning a prison is

an inordinately difficult undertaking that requires expertise . .

. peculiarly within the province of the legislative and

executive branches of government.” /d. at 84-85. Moreover,

the Court continued, “[p]rison administration is . . . a task

that has been committed to the responsibility of those

branches, and separation of powers concerns counsel a policy

of judicial restraint.” /d. at 85. Against this background, and

after an analysis of the facial validity of challenged Missouri

prison regulations under the four “factors” discussed in the

majority opinion here, the Turner Court upheld the validity of

the first of the regulations (a prohibition against

correspondence between inmates at different state prisons) on

27a

the ground that, as a matter of law, it was “reasonably related

to legitimate security interests.” Jd. at 91. The same sort of

categorical analysis led the Turner Court to invalidate the

other challenged regulation, a ban on inmate marriages.

The Turner opinion does not imply that an inmate

who seeks to challenge a_ prison’ regulation the

constitutionality of which has already been established is

entitled to have the regulation subjected to fresh scrutiny

under a four-factor analysis tailored to the plaintiff's

individual circumstances. In a published opinion by which I

should have thought this panel bound, our circuit has flatly

rejected the idea that prisoners are entitled to this sort of

individual fitting:

“By creating the Turner test, the Supreme Court

surely did not intend to provide a mechanism through

which prisoners could mount repeated challenges to

prison regulations and require courts to analyze, in

detail, the imipact such regulations would have in any

particular factual setting, even if prior court precedent

would seem to dictate the validity of the regulations.

On the contrary: the Supreme Court’s creation of the

Turner standard was motivated by a desire to

‘ensure{] the ability of corrections officials to

anticipate security problems and to adopt innovative

solutions to the intractable problems of prison

administration, and avoid[{] unnecessary intrusion of

the judiciary into problems particularly ill suited to

resolution by decree.’ O’Lone, 482 U.S. at 349

(quotation marks omitted). Penal authorities may

need a clear rule for dealing with certain continuing

or recurring situations, even when that rule could be

better-tailored to the rights of individual prisoners

through a court’s flexible, case-by-case analysis.”

28a

Spies v. Voinovich, 173 F.3d 398, 403 - 04 (6th Cir.

1999).

It may be true, I suppose, that if Mr. Flagner were the

only inmate in the Ohio prison system he could show that the

hair regulation is not reasonably related to legitimate security

interests peculiar to him. It may be true, in other words, that

Mr. Flagner himself has never concealed contraband in his

beard or sidelocks; that prison officials could easily and

safely assure themselves of Mr. Flagner’s continuing good

behavior by having him run his own fingers through his hair;

that no security problems of any kind have ever been

associated with Mr. Flagner’s facial hair; that his beard and

sidelocks have never been mistaken for a “gang identifier,”

that he has never attempted to escape from prison; that if he

were to escape and shave off his facial hair in an effort to

make himself harder to recognize, the effort would be

unsuccessful because the authorities happen to have old

photographs and sketches depicting him without such hair;

and that Mr. Flagner’s beard and sidelocks have never

contributed to the clogging of drains in the prison’s plumbing

system. If all this were shown to be true, if we were writing

on a clean slate, and if Mr. Flagner were Ohio’s only prison

inmate, I might well agree with my colleagues that the

regulation should not be allowed to burden Mr. Flagner’s

right to put into practice his religious beliefs concerning

facial hair.

But we are not writing on a clean slate, and Mr.

Flagner, unfortunately, is not Ohio’s only prison inmate. As

of January 2001, according to an Ohio Department of

Rehabilitation and Correction “Fact Sheet” available on the

internet at www.drc.state.oh.us, Ohio’s prison inmate

population was 45,540. If three percent of the state’s male

prison population were to accept the majority opinion’s

29a

implied invitation to challenge the regulation on grounds

comparable to those Mr. Flagner is being allowed to invoke

here, the Turner factors would have to be separately weighed

by the courts in something like 1,000 cases. And that is just

in Ohio.

Such an outcome, in my view, would be undesirable.

It would also be difficult to reconcile with the proposition —

explicitly alluded to in Turner — that “judgments regarding

prison security ‘are peculiarly within the province and

professional expertise of-corrections officials... .” 482

U.S. at 86 (quoting Pell v. Procunier, 417 U.S. 817, 827)

(1974). -

The conclusion that Mr. Flagner’s claim is without

legal merit finds support, I believe, in Employment Division,

Department of Human Resources of Oregon v. Smith, 494

U.S. 872 (1990), a decision handed down three years after the

decision in Turner. The question in Smith was whether the

State of Oregon could deny unemployment benefits to people

who had been fired from their jobs for ingesting a prohibited

hallucinogen (peyote) in connection with sacramental

activities at a Native American church. The Supreme Court

answered in the affirmative, reasoning that where the state’s

object is not to prohibit or burden the exercise of religion,

and any burden imposed by the state is “merely the incidental

effect of a generally applicable and otherwise valid provision,

the First Amendment has not been offended.” Smith, 494

U.S. at 878.

Unlike O’Lone v. Estate of Shabazz, 482 U.S. 342

(1987) — a case where, as the Smith Court noted (494 U.S. at

884), a prison’s refusal to excuse inmates from work to

attend worship services was sustained without mention of a

“balancing” test — Smith did not involve a prison regulation.

Oregon’s prohibition against the payment of benefits to

30a

jobless users of illegal drugs was applicable to the citizenry

of the state as a whole. And if the state’s blanket prohibition

against the- payment of benefits to such people was -

sustainable notwithstanding its incidental effect on the

religious practices of adherents of the Native American

Church, it would seem to follow a fortiori, given the need for

judicial restraint in the prison context, that a regulation such

as the one at issue here should be sustainable notwithstanding

the incidental burden it may place on the religious tenets of

some prisoners.

The Smith Court was obviously content to follow a

categorical approach in determining the constitutionality of

the Oregon law. The Court seemed to take it for granted that

because the law was constitutional as generally applied, the

plaintiffs had no viable free exercise claim.' This reading is

' It is true, as my colleagues on the panel point out in note 5

of the majority opinion, that a Federal Bureau of Prisons

regulation banning the delivery to prisoners of periodical

publications found “detrimental to institutional security” — a

regulation held to be valid on its face — could be found

invalid as applied to a_ particular publication. See

Thornburgh v. Abbott, 490 U.S. 401 (1989). But I do not

read Thornburgh vy. Abbott as justifying a remand in the case

at bar.

Here, as in Turner v. Safley, the plaintiffs would have

been free, had this been a case of first impression, to attempt

to show that the challenged regulation represented an

“exaggerated response” to prison concerns, given the alleged

existence of “obvious, easy alternatives ....” See Turner,

482 U.S. at 90. Had such a showing been made, a court

could have considered it “as evidence that the regulation does

not satisfy the reasonable relationship standard... .” /d. at

91. But our court has already held, in a Free Exercise Clause

3la

strengthened by the latter part of the Smith opinion’s

penultimate paragraph, where the Court rejected the idea that

a religious-practice exception to the general rule’ was

mandated by the First Amendment:

“But to say that a nondiscriminatory religious-practice

exemption is permitted, or even that it is desirable, is

not to say that it is constitutionally required, and that

the appropriate occasions for its creation can be

discerned by the courts. It may fairly be said that

leaving accommodation to the political process will

place at a relative disadvantage those religious

practices that are not widely engaged in; but that

unavoidable consequence of democratic government

must be preferred to a system in which each

conscience is a law unto itself or in which judges

weigh the social importance of all laws against the

context quite similar to the context in which the present

appeal arises, that Turner cannot justify a remand for

factfinding of the sort contemplated by my colleagues on the

panel. See Spies v. Voinovich, 173 F.3d at 407. Such a

remand, as Spies declared, “would be the type of

‘unnecessary intrusion of the judiciary’ into ‘problems of

prison administration’ that O’Lone warned against.” /d.

I can readily understand why my colleagues might

wish that the judge who urged a remand in Spies had been

writing the majority opinion rather than the dissent, just as |

can readily understand why they might wish that the views of

the Supreme Court justices who urged a remand in O’Lone

had prevailed. But given the majority holdings in Spies and

O’Lone, and given the post-Abbott holding in Employment

Division v. Smith, I have greater difficulty understanding how

it can be thought that we are free to order a remand here.

centrality of all religious beliefs.” Smith, 494 U.S. at

890.

Insofar as my colleagues on the panel have concluded

that the courts can and should discern appropriate occasions

for waiving Ohio’s prison hair regulation on a case-by-case

basis, I respectfully dissent.

33a

APPENDIX B

UNFTED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 99-4145

HBRANDON LEE FLAGNER,

Plaintiff-Appellee,

vs

REGINALD WILKINSON, et al.,

Defendants-Appellants.

Filed: May 25, 2001

Before: NELSON and MOORE, Circuit Judges; WILHOIT,

District Judge.”

The court having received a petition for rehearing en -

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and less than a majority of the judges having

favored the suggestion, the petition for rehearing has been

referred to the original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

* The Honorable Henry R. Wilhoit, Jr., Chief United States

District Judge for the Eastern District of Kentucky, sitting by

designation.

34a

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER OF

THE COURT

s/ Leonard Green Pra

LEONARD GREEN, CLERK

35a

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil Action No. C-1-96-887

HBRANDON LEE FLAGNER,

- Plaintiff,

Vv.

REGINALD WILKINSON, et al.,

Defendant.

Filed: August 24, 1999

ORDER

[District Judge Susan J. Dlott]

On March 29, 1999, the Court adopted the Report and

Recommendation of the Magistrate Judge denying both

defendants’ motion for summary judgment and plaintiff's

partial cross-motion for summary judgment. (Doc. 49). On

April 14, 1999, the Court granted defendants leave to file a

second motion for summary judgment in this matter. This

matter is before the Court on defendants’ second motion for

summary judgment on the basis of qualified immunity and a

36a

recent decision from the Sixth Circuit (Doc. 54), and

plaintiff's memorandum in opposition. (Doc. 55).'

Plaintiff is an inmate at the Madison Correctional

Institution (MaCI) and former inmate at the Lebanon

Correctional Institution (LeCI). He brings this action

pursuant to 42 U.S.C. § 1983 challenging various practices of

defendants which allegedly violate his First Amendment right

to freely exercise his religious beliefs. Defendants are

Reginald Wilkinson, director of the Ohio Department of

Rehabilitation and Correction, the warden and_ various

employees of the Lebanon Correctional Institution, and the

warden of the Madison Correctional Institution. At issue in

this case is defendants’ enforcement of Ohio Administrative

Code § 5120-9-25 (D) and (F), the grooming regulation

which requires plaintiff to cut his beard and side locks shorter

than permitted by the religious tenets of his Orthodox Hasidic

Jewish faith. Plaintiff has alleged and, for purposes of their

motion for summary judgment, defendants have accepted that

a central tenet of plaintiff's religious faith prohibits the

cutting of his side locks or shaving or cutting his beard.

Defendants forcibly cut plaintiff’s side locks and beard on

July 29, 1996 and in April 1998.

In its Order denying defendants’ first motion for

summary judgment, the Court engaged in a lengthy analysis

of defendants’ decision to cut plaintiff’s beard and side locks

' The Court notes that the defense of qualified immunity

protects officials from money damages, but not from

injunctive or declaratory relief. Collyer v. Darling, 98 F.3d

211, 228 n.18 (6™ Cir. 1996), cert. denied, 520 U.S. 1267

(1997); Cagle v. Gilley, 957 F.2d 1347, 1350 (6"™ Cir. 1992).

Thus, plaintiff's claims for injunctive and declaratory relief

are not subject to defendants’ second motion for summary

judgment based on qualified immunity.

37a

under the Supreme Court’s decision in Turner v. Safley, 482

U.S. 78 (1987). The Court shall not repeat that analysis here,

but shall incorporate by reference the facts and analysis set

forth in the Report and Recommendation and Order adopting

it. (Docs. 41, 49).

A motion for summary judgment should be granted if

the evidence submitted to the court demonstrates that there is

no genuine issue as to any material fact and that the movant

is entitled to summary judgment as a matter of law. Fed. R.

Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-

48 (1986). The moving party must demonstrate the absence

of genuine disputes over facts which, under the substantive

law governing the issue, could affect the outcome of the

action. Celotex Corp., 477 U.S. at 323.

Defendants contend that they are entitled to qualified

immunity as a matter of law on plaintiff’s First Amendment

claim. Government officials, including prison officials,

~ “performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known”

Black v. Parke, 4 F.3d 442, 444 (6™ Cir. 1993), quoting

Harlow vy. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified

immunity insulates government officials from individual

liability for money damages. See, e.g., Cagle v. Gilley, 957

F.2d 1347, 1350 (6™ Cir. 1992).

A constitutional right is “clearly estabiished,” thereby

precluding the application of qualified immunity, if “the law

[is] clear in regard to the official’s particular actions in the

_ particular situation.” Black, 4 F.3d at 445, quoting Long v.

Norris, 929 F.2d 1111, 1114 (6" Cir.), cert. denied, 502 U.S.

_ 863 (1991). See also Ward v. Dyke, 58 F.3d 271, 273 (6"

38a

Cir.), cert. denied, 516 U.S. 991 (1995); Mackey v. Dyke, 29

F.3d 1086, 1094 (6 Cir. 1994). “The contours of the right

must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Black, 4

F.3d at 445, quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987). The official, therefore, will be immune “if

officers of reasonable competence could disagree” on

whether his conduct violated the plaintiff's rights. Caldwell

v. Moore, 968 F.2d 595, 599 (6" Cir. 1992), quoting Malley

v. Briggs, 475 U.S. 335, 341 (1986).

Once a defendant raises a qualified immunity defense,

the plaintiff must satisfy a two prong analysis: (1) the

allegations must state a claim for violation of clearly

established law; and (2) the plaintiff must present evidence

sufficient to create a genuine issue of material fact as to

whether a defendant in fact committed the acts alleged.

Williams v. Pollard, 44 F.3d 433, 434 (6™ Cir. 1995), cert.

denied, 516 U.S. 815 (1995); Adams v. Metiva, 31 F.3d 375,

386 (6" Cir. 1994); Russo v. Cincinnati, 953 F.2d 1036, 1043

(6" Cir. 1992).

At the time of plaintiff's initial force haircut in 1996,

the law was clearly established that prisoners retain the right

to religious freedom and that prison officials may not deny

inmates “a reasonable opportunity of pursuing [their] faith

comparable to the opportunity afforded fellow prisoners who

adhere to conventional religious precepts.” Cruz v. Beto, 405

U.S. 319, 322 (1972). See also O’ Lone v. Estate of Shabazz,

482 U.S. 342, 348 (1987). The law relating to the Free

Exercise Clause of the First Amendment in prisons permits

infringement on a prisoner’s free exercise of his religious

beliefs only to the extent that such infringement is

“reasonably related to legitimate penological interests.”

O’ Lone, 482 U.S. at 349, quoting Turner v. Safley, 482 U.S.

78, 89 (1987). As discussed previously by the Court in its

39a

Order denying defendants’ first motion for summary

judgment, this reasonableness inquiry is guided by the four

Turner factors: whether there is a valid and rational

connection between the regulation or restriction and the

asserted governmental objective; whether plaintiff has

alternative means of exercising his right of freedom of

religion; the impact that accommodation of the asserted right

will have on others, such as inmates and guards, in the

prison; and the existence of ready alternatives to the

regulation or restriction that fully accommodate plaintiff's

rights. Turner, 482 U.S. at 89-91. See Pollock v. Marshall,

845 F.2d 656 (6" Cir.), cert. denied, 488 U.S. 897 (1988)

(applying Turner analysis to an inmate’s free exercise claim).

See also Spies v. Voinovich, 173 F.3d 398 (6 Cir. 1999),

Defendants contend that the Sixth Circuit and district

courts have repeatedly upheld Ohio’s grooming regulation in

the face of inmate challenges based on the free exercise of

religion. See Pollock v. Marshall, 845 F.2d 656 (6" Cir.),

cert. denied, 488 U.S. 897 (1988) (Lakota American Indian);

Williams v. Wilkinson, 96-3715 (6" Cir. Dec. 18, 1997)

(unreported) (Rastafarian); Syder v. Voinovich, C2-94-0536

(S.D. E.D. Ohio March 31, 1998) (unreported) (Native

Americans); Davie v. Wingard, 958 F. Supp. 1244 (S.D.

Ohio, Eastern Div. 1997) (Nazarite); Wellmaker v. Dahill,

836 F. Supp. 1375 (N.D. Ohio 1993) (Nubian Islamic

Hebrew). Defendants claim thai in view of these cases, it

was objectively reasonable for them to deny an exemption to

plaintiff on the basis of his religion.

However, this Court has previously recognized that

the cases cited by defendants are distinguishable from the

instant case because the plaintiffs in those cases did not

challenge the factual basis for the penological justifications

asserted by prison officials. (Doc. 49 at 4). Here, plaintiff

40a

presented extensive evidence attacking the validity of each

penological interest advanced by defendants. (Doc. 49 at 4).

This case is more akin to Whitney v. Brown, 882 F.2d

1068 (6" Cir. 1989), where the Court struck down a prison

policy which eliminated the intercomplex travel of Jewish

inmates to weekly Sabbath services and annual Passover

Seders. The Whitney Court analyzed the policy and

justifications therefor under Turner and O' Lone and found an

absence of a factual underpinning relating to the

justifications. 882 F.2d at 1073-77. Although Whitney did

not address the issue of qualified immunity, it supports the

position that Turner and O’Lone provide the “clearly

established” law in this case: that the law requires some

basis in actual fact for the justifications posed by prison

officials, and not merely unsupported generalities.

As of the date of defendants’ decision to enforce the

grooming regulation against plaintiff, the law was clearly

established, by decisions of the Supreme Court and Sixth

Circuit, that prison officials could infringe upon plaintiff's

First Amendment right to freely practice his religion only

where such actions were “reasonably related to legitimate

penological interests.” O’Lone, 482 U.S. at 349; Turner, 482

U.S. at 89; Whitney, 882 F.2d at 1073-74. As discussed in

the Report and Recommendation and the Court’s Order

adopting it, material issues of fact exist as to the legitimacy

of defendants’ proffered justifications for enforcing the hair

regulation against plaintiff. (Doc. 41 at 8-13; Doc. 49 at 4-5).

Plaintiff has come forward with evidence from which a trier

of fact could reasonably conclude that defendants’

enforcement of the grooming regulation against plaintiff was

an exaggerated response to or not done for the asserted

security concerns. A reasonable prison official would have

known in 1996 that he could not cut plaintiff's beard and side

locks in contravention of plaintiff's sincerely held religious

4la

beliefs in the absence of legitimate penological interests

relating to the enforcement of the hair length regulation.

Although the Court must accord deference to state officials in

their administration of prison facilities, Turner, 482 U.S. at

85; Precunier v. Martinez, 416 U.S. 396, 405 (1974), the

Court cannot disregard an inmate’s constitutional rights

whenever prison officials articulate a possible, but

unsubstantiated, security concern. Whether it was objectively

reasonable for defendants to believe that their acts were

lawful is an issue of fact. Accerdingly, defendants are not

entitled to the protection of qualified immunity.

Finally, defendants urge the Court to reconsider its

previous decision on summary judgment in view of Spies v.

Voinovich, 173 F.3d 398 (6 Cir. 1999). In Spies, the Sixth

Circuit upheld -the lower court’s dismissal of an inmate’s

claim that various prison regulations violated his free

exercise rights. In evaluating the prisoner’s claim under

Turner, the Court of Appeals noted that “a trial court is not

required to weigh evenly, or even consider explicitly, each of

the four Turner factors.” 173 F.3d at 403.

As previously discussed, this Court has already

engaged in a lengthy Turner analysis and has explicitly

considered each of the four Turner factors. The Court

discerns no reason to revisit or eliminate any of its previous

analysis just because an explicit discussion of each Turner

factor was not required in the first instance. The Court

therefore declines to reconsider its previous decision on

summary judgment in light of the Spies decision.

42a

; Accordingly, defendants’ second motion for summary

judgment is DENIED.

IT IS SO ORDERED.

s/Susan J. Dlott

Susan J. Dlott

United States District Judge

43a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. C-1-96-887

HBRANDON LEE FLAGNER,

Plaintiff,

V.

REGINALD WILKINSON, et al.,

Defendant.

Filed: March 29, 1999

ORDER ADOPTING THE MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION

[District Judge Susan J. Dlott]

On February 3, 1999, the Honorable Magistrate Judge

Sherman issued a Report and Recommendation (doc. #41) to

deny both Defendant’s Motion for Summary Judgment and

Plaintiff's Partial Cross-Motion for Summary Judgment.

Plaintiff and Defendant both filed Objections to the

Magistrate Judge’s Report and Recommendation (docs. #43

_ and #45, respectively). Upon consideration of the law and

the facts, the Court hereby ADOPTS the well-reasoned

Report and Recommendation of Magistrate J udge Sherman.

44a

I. BACKGROUND

The Court will provide only a brief statement of

relevant facts. A more thorough exposition can be found in

the Report and Recommendation. Plaintiff Hbrandon Lee

Flagner is an inmate at the Madison Correctional Institution

(“MaCI”) and former inmaté at Lebanon Correctional

Institute (“LeCI”). Defendants are Reginald Wilkinson, the

Director of the Ohio Department of Rehabilitation and

Corrections, and officials from MaClI and LeCI. Flagner filed

a Complaint alleging, in part, that Defendants’ enforcement

of Ohio Administrative Code § 5120-9-25(D) & (F) violates

his rights under the Free Exercise Clause of the Constitution.

The Code sections are Hair Length Regulations mandating

that hair not grow more than three inches from the scalp and

that beards do not exceed one-half inch in length.

Flagner alleges that as an Orthodox Hasidic Jew a

central tenant of his faith prohibits the cutting of his

sidelocks or the shaving or cutting his beard. He further

alleges that the Hair Length Regulations require him to

violate that central tenant. Defendants do not contest the

sincerity of Flagner’s belief. They argue, instead, that the

Hair Length Regulations are valid because they are

reasonably related to legitimate penological interests.

The parties filed Motions for Summary Judgment on

the hair grooming claim. The Magistrate Judge determined

that Turner v. Safley, 482 U.S. 78 (1987), was the controlling

precedent and that factual issues precluded summary

judgment to either party. Defendants object that the

controlling precedent should be Employment Division v.

Smith, 494 U.S. 872 (1990). Alternatively, Defendants argue

that the Magistrate Judge misapplied the Turner factors and

that, under a correct analysis of the Turner factors,

Defendants are entitled to summary judgment as a matter of

45a

law. Flagner argues that Turner is the controlling precedent

and he is entitled to summary judgment as a matter of law.

Il. LEGAL STANDARD AND ANALYSIS

The standard of review for a magistrate judge’s

decision regarding a pretrial matter depends upon whether the

matter is dispositive. If the matter is “not dispositive of a

claim or defense of a party,” then the magistrate judge’s

decision is overturned only if it is “clearly erroneous or

contrary to law.” Fed. R. Civ. Pro. 72(a). If, however, the

matter is dispositive, then the district judge must make a “de

novo determination upon the record.” Fed. R. Civ. Pro.

72(b). Motions for summary judgment are dispositive and,

therefore, the Report and Recommendation will be reviewed

de novo.

The Court must first determine whether turner or

Smith is controlling. In Turner, the Supreme Court held that

“when a prison regulation impinges on an_ inmates’

constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” 482 U.S. at 89.

In Smith the Court held that the Free Exercise Clause did not

relieve an individual of the duty to comply with neutral,

generally applicable laws that incidentally burden a religious

practice. See 494 U.S. at 882-85.

In response to the Smith decision, Congress enacted

the Religious Freedom Restoration Act (“RFRA”). The

parties initial arguments on this claim were argued under the

standards of the RFRA and on January 15, 1997 Magistrate

Judge Sherman issued a Report and Recommendation (doc.

#24) to grant Flagner’s Motion for Injunctive Relief on the

basis of the RFRA. Subsequent to the January 15, 1997

Report and Recommendation, the Supreme Court declared

the RFRA to be unconstitutional. See City of Boerne vy.

46a

Flores, 117 S.Ct. 2157 (1997). The Honorable Judge Spiegel

then issued an Order Reversing Magistrate Judge’s Report

and Recommendation (doc. #30) concerning the injunction.

Judge Spiegel ruled that because the RFRA had been

declared unconstitutional, Smith was again the controlling

precedent. Order Reversing the Magistrate Judge’s Report

and Recommendation (doc. #30) p. 3. However, prior to

receiving Judge Spiegel’s Order, the parties did not brief the

issue of whether Turner or Smith should be the controlling

precedent in light of the RFRA being declared

unconstitutional.

The parties have had the opportunity now to brief the

Court on the issue of whether Turner or Smith is controlling.

The Court agrees with the Magistrate Judge's well-reasoned

conclusion that Turner is controlling. As the Magistrate

judge determined, the Sixth Circuit has continued to apply

the pre-RFRA standards set forth in Turner in prisoner cases

challenging restrictions on the free exercise of religion.

Report and Recommendation (doc. #41) p. 5. This Court will

do the same.

Defendants’ next argue that even under the four factor

Turner standard, Defendants are entitled to summary

judgment as a matter of law. The Court is cognizant of Sixth

Circuit case law upholding the Hair Length Regulations on

the basis of evidence similar to that the Defendants provide

here. See Williams v. Wilkinson, No. 96-3715, 1997 WL

809971 (6"" Cir. Dec. 18, 1997); Pollack v. Marshall, 845

F.2d 656 (6" Cir. 1988); Davie v. Wingard, 958 F. Supp.

1244 (S.D. Ohio 1244). The Court finds, however, that

Williams, Pollack, and Davie are distinguishable because the

plaintiffs in those cases provided little evidence contradicting

the legitimate penological interests advanced by defendants.

47a

In contrast, Flagner has provided extensive evidence

attacking the validity of each legitimate penological interest

Defendants advance in defense of the Hair Length

Regulations. The Report and Recommendation thoroughly

discussed the penological interests Defendants advance and

Flagner’s evidence in opposition. The Court need not repeat

that analysis here. The Magistrate Judge concluded and the

Court agrees that genuine issues of material fact remain in

dispute.

Defendant argues that the Court should not view

Flagner’s situation in a vacuum, but rather within the coniext

of the Ohio penal system. Flagner’s evidence in opposition

concentrates on the fact that the LeCI and MaClI did not have

problems with security, sanitation, or staffing when

exemptions from the Hair Length Regulations were granted

temporarily to Flagner and four Native Americans. Evidence

from a similar individualized inquiry was a sufficient basis to

grant judgment for the plaintiffs in Whitney v. Brown, 882

F.2d 1068 (6" Cir. 1989) (involving the right of Jewish

inmates in Michigan to congregate for weekly Sabbath

services and an annual Passover Seder). The Court concludes

that it is best left for a jury to decide if the Hair Length

Regulations are reasonably related to legitimate penological

concerns.

48a

Ill. CONCLUSION

For the reasons set forth above, the Magistrate

Judge’s Report and Recommendation is hereby ADOPTED.

IT IS SO ORDERED.

7 s/Susan J. Dlott

Susan J. Dlott

United States District Judge

49a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil Action No. C-1-96-887

HBRANDON LEE FLAGNER,

Plaintiff,

v.

REGINALD WILKINSON, et ai.,

Defendants.

Filed: February 3, 1999

REPORT AND RECOMMENDATION

(Spiegel, J.; Sherman, M.J.)

Plaintiff, an inmate at the Madison Correctional

Institution (MaCI) and former inmate at the Lebanon

Correctional Institution (LeCI), brings this action pursuant to

42 U.S.C. § 1983 challenging various practices of defendants

which plaintiff alleges violate his religious beliefs in

contravention of the Free Exercise Clause of the First

Amendment.' Defendants are Reginald Wilkinson, director

' Since the filing of the amended complaint, the Religious

Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §

2000bb et seqg., has been declared unconstitutional by the

Supreme Court. See City of Boerne v. Flores, 117 S. Ct.

OW

50a

of the Ohio Department of Rehabilitation and Correction, the

warden and various employees of the Lebanon Correctional

Institution, and the warden of the Madison Correctional

Institution. Plaintiff alleges that he is an Orthodox Hasidic

Jew and that a central tenet of his faith prohibits the cutting

of his sidelocks or shaving or cutting his beard. He

challenges defendants’ enforcement of Ohio Admin. Code §

5120-9-25 (D) and (F), the grooming regulation which

requires plaintiff to cut his beard and sidelocks shorter than

permitted by the religious tenets of his faith. He also alleges

that defendants at LeCI denied him a proper kosher diet and

that upon his transfer to MaClI he was assigned to certain

kitchen duties which required him to handle or come into

contact with pork products or products containing pork. He

alleges that defendants’ actions violate his rights as protected

by the Free Exercise Clause of the First Amendment to the

United States Constitution.

This matter is before the Court upon defendants’

motion for summary judgment (Doc. 34), plaintiff's cross-

motion for partial summary judgment (Doc. 37), defendants’

memorandum in opposition to plaintiff's cross-motion for

partial summary judgment (Doc. 38), and plaintiff's reply

memorandum in support of cross-motion for partial summary

judgment. (Doc. 39). Defendants seek summary judgment

on the grooming regulation issue only.”

2156 (1997). Therefore, plaintiff has no cause of action

under RFRA.

> Although plaintiff’s claims regarding his kitchen job at

MaClI and his kosher diet at LeCI, where he resided prior to

his transfer to MaClI, were not at issue for purposes of the

motion for preliminary injunction previously filed by plaintiff

(see Docs. 20, 24, 30), his claims for monetary damages are

still viable.

Sla

A motion for summary judgment should be granted if

the evidence submitted to the court demonstrates that there is

no genuine issue as to any material fact and that the movant

is entitled to summary judgment as a matter of law. Fed. R.

Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-

48 (1986). The moving party must demonstrate the absence

of genuine disputes over facts which, under the substantive

law governing the issue, could affect the outcome of the

action. Celotex Corp., 477 U.S. at 323.

In response to a properly supported summary

judgment motion, the non-moving party “is required to

present some significant probative evidence which makes it

necessary to resolve the parties’ differing versions of the

dispute at trial.” Sixty Ivy Street Corp. v. Alexander, 822

¥.2d 1432, 1435 (6 Cir. 1987); Harris v. Adams, 873 F.2d

929, 931 (6 Cir. 1989). “[A]fter a motion for summary

judgment has been filed, thereby testing the resisting party’s

evidence, a factual issue may not be created by filing an

affidavit contradicting [one’s own] earlier deposition

testimony.” Davidson & Jones Dev. Co. v. Elmore Dev. Co.,

921 F.2d 1343, 1352 (6" Cir. 1991).

The trial judge’s function is not to weigh the evidence

and determine the truth of the matter, but to determine

whether there is a genuine factual issue for trial. Anderson,

477 U.S. at 249-50. The trial court need not search the entire

record for material issues of fact, Street v. J.C. Bradford &

Co., 886 F.2d 1472, 1479-80 (6" Cir. 1989), but must

determine “whether the evidence presents a_ sufficient

disagreement to require submission to a jury or whether it is

so one-sided that one party must prevail as a matter of law.”

Anderson, 477 US. at 251-52.

52a

If, after an appropriate time for discovery, the

opposing party is unable to demonstrate a prima facie case,

summary judgment is warranted. Street, 886 F.2d at 1478

(citing Celotex and Anderson). “Where the record taken as a

whole could not lead to a rational trier of fact to find for the

non-moving party, there is no ‘genuine issue for trial.’”

Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

FACTS

Plaintiff, Hbrandon Lee Flagner, is an inmate at the

Madison Correctional Institution (MaCI) in London, Ohio.

Prior to his administrative transfer to MaCl, plaintiff resided

at the Lebanon Correctional Institution (LeCI) from July 8,

1994 through November 20, 1996. Plaintiff resided at the

Mansfield Correctional Institution prior to his transfer to

LeCI.

At the hearing on plaintiff's motion for preliminary

injunction in this matter, plaintiff testified that he began

studying Orthodox Judaism in 1987. In June 1991, while an

inmate at the Mansfield Correctional Institution, plaintiff

formally converted to Orthodox Judaism. At that time he

began growing his beard and sidelocks in accordance with his

religious beliefs. Plaintiff has adhered to the requirements of

Orthodox Jewish Law, maintaining a kosher diet and praying

three times daily. (Doc. 20, Pl. Exhs. 2, 3; Doc. 37, Exhs. 2-

4). Plaintiff testified that according to The Code of Jewish

Law and the Torah, he is prohibited from cutting his

sidelocks and beard and that it is his sincere belief that to do

so constitutes a sin and disobedience to God’s command not

to cut his hair. (See also Doc. 37, Exhs. 3, 4). For purpose of

the motion for summary judgment, defendants do not dispute

the sincerity of plaintiff's beliefs concerning the prohibitions

on cutting his sidelocks and beard.

53a

Ohio Administrative Code regulations require inmates

to maintain hair length at not more than three inches from the

scalp. The regulations provides in pertinent part:

Haircuts shall be provided as needed. Hair

and hairstyles shall be clean, neatly trimmed

and shall not extend over the ears or the shirt

collar. Hair and hairstyle[s] shall not

protrude more than three inches from the

scalp. Braids and plaits may be worn

subject to the limitations of this rule. . . .

Ohio Admin. Code § 5120-9-25(D). The regulations also

require inmates to neatly trim beards so that they do not

exceed one-half inch in length. Ohio Admin. Code § 5120-9-

25(F). The parties have agreed that defendants intend to

require plaintiff to comply with the hair length regulations in

the future. (Doc. 28 at 4; Doc. 34 at 4).

Plaintiff testified that he did not cut his sidelocks or

beard while he was an inmate at the Mansfield Correctional

Institution from June 1991 when he converted to Orthodox

Judaism until July 8, 1994 when he was transferred to LeCl.

Although plaintiff was threatened with disciplinary action by

prison officials at the Mansfield Correctional Institution, he

was never forced to cut his beard or sidelocks. Plaintiff also

testified that officials at the Mansfield Correctional

Institution required him to run his fingers through his beard

on four occasions to search for contraband. He was never

physically searched by prison officials in this regard.

Upon plaintiff's transfer to LeCi in July 1994, he was

given numerous direct orders to cut his sidelocks and beard,

but refused. Plaintiff was placed in disciplinary isolation on

two occasions for his refusal. Plaintiff filed a grievance with

54a

the Institutional Inspector at LeCi requesting an exemption

from the forcible cutting of his sidelocks and beard. The

grievance was denied on July 11, 1996. (Doc. 37, Exh. 1).

On July 29, 1996, plaintiff was given a forced haircut by

LeCl officials. Both his sidelocks and beard were cut to one-

half inch. On August 2, 1996, subsequent to the forced

haircut, plaintiff was photographed by prison officials.

Plaintiff received no disciplinary conduct reports from LeCl

officials subsequent to the forcible hair cutting, but was

maintained in disciplinary isolation. Plaintiff testified that he

was directed by LeCl corrections officers to run his fingers

through his beard to search for contraband on only two

occasions. He testified that the search of his beard took two

to three seconds.

On November 20, 1996, plaintiff was transferred to

MaClI. He was given numerous direct orders to cut his beard

and sidelocks, but such orders were set aside pending the

Court’s ruling on plaintiff's motion for preliminary

injunction. On August 8, 1997, plaintiff's motion for

preliminary injunction was denied. (Doc. 30). Plaintiff was

permitted to maintain his sidelocks and beard until April of

1998 at which time he was required to cut them to comply

with the challenged regulations. (Wingard Depo. at 18).

The facts relating to the security concerns raised by

defendants will be discussed below.

5Sa

Applicable Standard of Review

Defendants contend that the Supreme Court’s

decision in Employment Division v. Smith, 494 U.S. 872

(1990), which formulated a “generally applicable regulation”

test, provides the controlling law in this case. Plaintiff

contends that the Supreme Court’s decision in Turner v.

Safley, 482 U.S. 78 (1987), which requires that a prison

official’s actions be “reasonably related to legitimate

penological interests,” applies instead.

In Smith, the Supreme Court upheld the enforcement

of a law of neutral and general applicability in a free exercise

of religion case even in the absence of a compelling state

interest. The Court held that the First Amendment’s Free

Exercise Clause did not relieve an individual of the duty to

comply with neutral, generally applicable laws that

incidentally burden a religious practice. 494 U.S. at 882-85.

The Religious Freedom Restoration Act was passed by

Congress in response to the Supreme Court’s decision in

Employment Division v. Smith, which “virtually eliminated

the requirement that the government justify burdens on

religious exercise imposed by laws neutral toward religion.”

42 U.S.C. § 2000bb(a)(4). Congress restored the compelling

interest test set forth in Sherbert v. Verner, 374 U.S. 398

(1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) for free

exercise of religion claims. 42 U.S.C. § 2000bb(b)(1).

The Religious Freedom Restoration Act was later

declared unconstitutional by the Supreme Court in City of

Boerne v. Flores, 117 S. Ct. 2157 (1997). Subsequent to the

Boerne decision, the courts in this circuit have consistently

applied the pre-RFRA standard set forth in Tuner v. Safley in

prisoner cases challenging restrictions on the free exercise of

religion. See, e.g., Looker v. State of Ohio, 1998 W.L.

808369 (6" Cir. Nov. 9, 1998) (unpublished); Boswell v.

56a

McGinnis, 142 F.3d 432 (6 Cir. 1998) (unpublished), 1998

WL. 69303; Brown v. Lewis, 142 F.3d 432 (6 Cir. 1998)

(unpublished), 1998 W.L. 68961; Williams v. Wilkinson, 134

F.3d 373 (6" Cir. 1997) (unpublished), 1997 W.L. 80997 1;

Elohim v. Williams, 125 F.3d 855 (6" Cir. 1997)

(unpublished), 1997 W.L. 589262: Hasenmeier-McCarthy v.

Rose, 986 F. Supp. 464 (S.D. Ohio 1998) (Sargus, J.):

Abdullah y. Fard, 974 F. Supp. 1112 (N.D. Ohio 1997). This

Court has found no Sixth Circuit case or any district court

case in the Sixth Circuit applying the Smith standard as

defendants urge. C,f. Shaffer v. Safle, 148 F.3d 1180 (10"

Cir. 1998) (applying Smith test in § 1983 prisoner action).

Thus, this Court will apply the Turner standard in the instant

case.

Application of Turner v. Safley to the Present Case

Although prison inmates retain the right to religious

freedom, O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987);

Cruz v. Beto, 405 U.S. 319 (1972), this right is subject to

reasonable restrictions and limitations. See Cruz, 405 USS. at

322: Bell v. Wolfish, 441 U.S. 520, 549-51 (1979). An

inmate who challenges the actions of prison officials which

infringe upon his religious practices or beliefs must first

show that the particular practice or belief “is religious in the

[inmate’s] own scheme of things” and “sincerely held.” Kent

y. Johnson, 821 F.2d 1220, 1224 (6" Cir. 1987). Where the

prison policy or action does not affect ‘“‘an essential tenet” of

the inmate’s religious beliefs, no First Amendment violation

will be found. Abdur-Rahman v. Michigan Department of

Corrections, 65 F.3d 489, 491 (6" Cir. 1995). See also

Abdullah v. Fard, 974 F. Supp. 1112 (N.D. Ohio 1997). As

indicated above, defendants do not dispute the sincerity of

plaintiff’s religious beliefs that his Jewish faith prohibits him

from shaving or cutting his sidelocks and beard for purposes

of the motion for summary judgment.

S7a

In determining whether the actions of defendants in

this case violate plaintiff's First Amendment rights, the Court

must examine whether defendants’ actions are reasonably

related to legitimate penological interests. O’ Lone, 482 U.S.

at 349; Turner, 482 U.S. at 89. The Court’s reasonableness

inquiry is guided by several factors: whether there is a valid

and rational connection between the regulation or restriction

and the asserted governmental objective; whether plaintiff

has alternative means of exercising his right of freedom of

religion; the impact that accommodation of the asserted right

will have on others, such as inmates and guards, in the

prison; and the existence of ready alternatives to the

regulation or restriction that fully accommodate plaintiff's

rights. Turner, 482 U.S. at 89-91. See also Pollock v.

Marshall, 845 F.2d 656 (6" Cir.), cert. denied, 488 U.S. 897

(1988) (applying Turner analysis to an inmate’s free exercise

claim). “Because the Turner factors were developed in the

context of facial constitutional challenges, they may or may

not lend themselves to an ‘as applied’ analysis, depending on

the facts and circumstances of any given case.” Lyon vy.

Grossheim, 803 F. Supp. 1538, 1552 (S.D. lowa 1992). The

Turner tactors are guidelines to be weighed and balanced in

evaluating the reasonableness inquiry, rather than four prongs

of a test which must each be satisfied. Whitney v. Brown, 882

F.2d 1068, 1076 (6" Cir. 1989); Munir v. Scott, 907 F.2d 151

(6 Cir. 1990) (unpublished), 1990 W.L. 92680. Hence, the

Court should address those factors which are most helpful

and applicable to the given case. See Skelton v. Pri-Cor, Inc.,

963 F.2d 100, 103 (6" Cir. 1991), cert. denied, 112 S. Ct.

1682 (1992).

First Turner Factor: Is there a valid, rational connection

between the application of the grooming regulation to

plaintiff and the asserted penological interest?

58a

As an initial matter, the Court recognizes that it must

accord prison officials “wide-ranging deference in the

adoption and execution of policies and practices that in their

judgment are needed to preserve internal order and discipline

and to maintain institutional security.” Bell v. Wolfish, 441

U.S. 520, 547 (1979); Skelton v. Pri-Cor, Inc., 963 F.2d 100,

103 (6 Cir. 1991); cert. denied, 112 S. Ct. 1682 (1992). The

protection of internal prison security is “central to all other

corrections goals.” Pell v. Procunier, 417 U.S. 817, 823

(1974). “{Jjudgments regarding prison security ‘are

peculiarly within the province and professional expertise of

corrections officials, and, in the absence of substantial

evidence in the record to indicate that the officials have

exaggerated their response to these considerations, courts

should ordinarily defer to their expert judgment in such

matters.” Turner, 482 U.S. 78, 86, quoting Pell, 417 U.S. at

827.

The Sixth Circuit’s application of the Turner factors

in Whitney v. Brown, 882 F.2d 1068 (6" Cir. 1989), is

instructive in this case. In Whitney, the Sixth Circuit

examined a prison policy which eliminated the intercomplex

travel of Jewish inmates to weekly Sabbath services and

annual Passover Seders. The Court held that such

prohibitions impermissibly infringed on the free exercise

rights of the Jewish inmates. The Court examined several

justifications presenied by prison officials for the ban on

intercomplex travel. Such travel allegedly increased the

movement between the complex and made Jewish inmates

vulnerable to attack by other prisoners. However, the Court

found that the factual record failed to support the general

claim that Jewish inmates were any more vulnerable to attack

than other inmates. Officials also claimed that intercomplex

travel enhanced the risk of escape and the risk of contraband

smuggling. Yet, the Sixth Circuit found that prison officials

failed to present evidence of specific incidents of misconduct

eT

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connecting the intercomplex travel by the six Jewish inmates

in question and the potential for escape or the smuggling of

contraband. 882 F.2d at 1075. Officials also argued that

allowing the Jewish prisoners to travel between complexes

would impose additional burdens on the guards who would

have to search them, as well as additional paperwork. 882

F.2d at 1070-75, 1077. While logically plausible, the Court

found these concerns to be exaggerated in light of the facts

and evidence presented that six inmates would not pose any

real additional security problems given the already busy

traffic flow in the prison on Saturdays. We note that the

Court repeatedly cited the fact that only six Jewish inmates

were involved in the ban in question, out of a total inmate

population in excess of 4,500. /d. at 1073, 1074, 1075, 1077.

In evaluating the arguments of prison officials, the

Sixth Circuit rejected the conclusory justifications posited by

prison officials and what the Court viewed as the officials’

misreading “of Turner and O’Lone as holding that federal

courts will uphold prison policies which can somehow be

supported with a flurry of disconnected and self-conflicting

points. They seem to read Turner and O’Lone as saying that

anything prison officials can justify is valid because they

have somehow justified it.” Jd. at 1974. Whitney teaches that

there must be some basis in actual fact for the justifications

posed by prison officials, and not merely unsupported

generalities. The-Sixth Circuit looked to the specific

circumstances of the six Jewish inmates involved, indicating

that the claimed justifications must be specific to the practice

at issue. The Whitney Court also found significant the

centrality of the belief at issue and _ the attempted

accommodations by prison officials. With respect to the

policy banning congregate Passover Seders, the Court noted

that the Passover “is an especially critical and very special

time in the jewish religion” and the prison policy at issue

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“forecloses the only means by which the Jewish inmates may

exercise their asserted right to mark Passover.” /d. at 1073.

In the instant case, defendants assert that the hair

length regulation furthers valid penological interests in

maintaining institutional security and conserving prison

resources. Defendants present the affidavit of defendant

Curtis Wingard, the warden of the Madison Correctional

Institution. Defendant Wingard states that contraband such

as drugs and weapons is a serious problem in Ohio's prisons.

He states, “Long hair and thick, full beards and sideburns

provide good hiding places for such contraband as drugs and

weapons.” (Doc. 26, Wingard Aff. ¢ 4). Defendant Wingard

states that he has personally found “tobacco, mari juana, and a

razor blade hidden in inmates’ hair.” /d. However, when

questioned by counsel for plaintiff at his deposition,

defendant Wingard admitted he could give no “specific

examples” of security problems concerning plaintiff's beard

and sidelocks. (Wingard Depo. at 19-20).’ Nor were any

additional security precautions taken with plaintiff during the

time period prior to April 1998 when plaintiff's beard and

sidelocks were cut. (Wingard Depo. at 20). Plaintiff was the

only Orthodox Jew at Madison Correctional Institution, out

of an inmate population of over 2500, requesting an

exemption from the grooming regulation for religious

reasons. (Wingard Depo. at 34-35). Plaintiff testified at the

hearing on preliminary injunction that he was permitted to

maintain his sidelocks and beard in accordance with his

religious beliefs for more than five years prior to the first

forcible cutting of his beard and sidelocks. Additionally,

during the period prior to April 1998 when plaintiff's beliefs

were accommodated, an exemption from the grooming

regulation was also granted to four Native Americans.

> The length of the hair on plaintiff's head is not at issue in

this case.

6la

(Wingard Depo. at 35). Wingard testified that he knew of no

specific incidents of contraband hidden in a Native American

inmate's hair during this time period. (Wingard Depo. at 15).

The evidence presented by plaintiff places into question

whether the extent of defendants’ concern about hidden

contraband in the beard and sidelocks of plaintiff is justified.

Thus, issues of fact exist as to whether accommodations of

plaintiff's beliefs caused any specific security problems

justifying the restriction on his religious beliefs.

Defendant Wingard also asserts that the hair length

regulation further a legitimate security interest by freeing

staff members “from the increased demands on their time that

would otherwise result from the more frequent, wide ranging

and lengthier searches that would be necessary to attempt to

control contraband.” (Doc. 26, Wingard Aff. 46). Yet, at his

deposition, Wingard conceded that no additional staff or

overtime has been expended to provide security for inmates

who have been exempt from the grooming regulation.

(Wingard Depo. at 60). Plaintiff testified at the preliminary

‘injunction hearing that no guard ever personally searched his

beard or sidelocks, but rather plaintiff was required to run his

fingers through his beard and sidelocks on only a few

occasions. Such searches of his beard took two to three

seconds. Under plaintiff's version, this is far less than the

burden of six additional searches found de minimis in

Whitney, 882 F.2d at 1074-78. Thus, the extent of the burden

on staff time caused by accommodating plaintiff's religious

beliefs is at issue.

Defendant Wingard also states that the increased

contact between guards and prisoners resulting from these

more intensive searches would increase the potential for

violence between the two. (Doc. 26, Wingard Aff. 48).

Plaintiff testified at the preliminary hearing that he was never

physically touched or searched by a guard during the four

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years he was exempt from the grooming regulation. The

claim that accommodating plaintiff's religious beliefs will

increase confrontations with guards is not supported by the

record. Plaintiff's experience during the years he was exempt

from the hair length regulation belies the concern raised by

defendants See Whitley, 882 F.2d at 1076.

Defendants also argue that the hair length regulation

aids in the detection and control of gang activity within

Ohio’s prisons and stems hygiene and sanitation problems.

(Doc. 26, Wingard Aff. 9915-22, 27-28). Defendant Wingard

testified, however, that the wearing of sidelocks and an

untrimmed beard are not gang identifiers (Wingard Depo. at

57) and that shaved heads and tattoos, which may indicate

gang identification, are permitted within the institution.

(Wingard Depo. at 38-44). Inmates with shaved heads or

tattoos are simply monitored more closely by prison staff.

(Wingard Depo. at 44). It appears incongruous to permit

inmates to possess characteristics identified with gangs, such

as tattoos and shaved heads, yet disallow an inmate with a

sincerely held religious belief to maintain a beard and

sidelocks, which have no known relationship to gang

identification, for fear of gang activity. In addition, Wingard

testified that he knew of no relationship between an inmate’s

length of hair and disease or medical problems. (Wingard

Depo. at 53). While undoubtedly long hair could clog drains,

there is no evidence that sidelocks and an untrimmed beard

pose the same plumbing problems.

Defendants also assert that “[u]niform application of

the Hair Length Regulations further the compelling interest in

the security of Ohio’s prisons by reinforcing staff authority

and discipline over inmates, making the job of controlling the

prisons easier.” (Doc. 34 at 9; Doc. 26, Wingard Aff. 94 12-

13). In other words, any deviation from the grooming

regulation or any other regulation for that matter, according

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to defendants, compromises prison security. Such a rule

against differential treatment eviscerates the notion that

prisoners retain religious rights. This type of sweeping

justification offered by defendants, without any particular

evidence showing the relationship to the exemption sought by

plaintiff, rules out any accommodations and conflicts with the

fourth Turner factor mandating the Court to consider

alternatives in assessing a regulation’s reasonableness. It

resembles the conclusory approach rejected by the Sixth

Circuit in Whitney that “anything prison officials can justify

is valid because they have somehow justified it.” 882 F.2d at

1074.

Defendants also argue that the grooming regulation is

necessary to ensure prompt and accurate identification of

escaped inmates. (Doc. 26, Wingard Aff. § 23-24; Doc. 34,

Hale Aff. ¥§ 4-12). Undoubtedly the recapture of an escaped

inmate is a legitimate penological interest. The Supreme

Court in Turner, in evaluating the reasonableness of a prison

regulation, examined the actual past experiences of prison

officials as relevant evidence in this determination. Turner,

+82 U.S. at 98. Plaintiff presents testimony from defendant

Wingard that he was aware of only two escape attempts

during his twelve year tenure with the department of

corrections and that neither incident was adversely affected

by the accuracy of prison photos. (Wingard Depo. at 36-37).

Plaintiff also asserts that defendants have photos of plaintiff

with his beard and sidelocks, as well as with his shorter facial

hair. This evidence presents the Court with a genuine issue

of fact regarding whether a disallowance of any exemptions

to the grooming regulation for sincerely held religious beliefs

as plaintiff's in this case is necessary to protect defendants’

interest. Moreover, the five year delay in the forcible cutting

of plaintiff's beard and sidelocks from June 1991, when he

converted to Judaism, to July 1996, indicates that the

enforcement of the grooming regulation against plaintiff may

64a

be an exaggerated response to the security interest advanced -

by defendants. While the Court recognizes a connection

between the hair length regulation and accurate identification

of inmates, the readily available alternative of “before” and

“after” photographs accommodates plaintiff's religious

beliefs at a de minimis cost to the prison’s penological

interests. Whitney, 882 F.2d at 1073, 1077."

In view of the above, issues of fact preclude judgment

as a matter of law on the first Turner factor for either party.

Second Turner Factor: does plaintiff have alternative

means to exercise his religious beliefs?

The Court now considers the second Turner factor,

whether alternative means exist for plaintiff to exercise his

rights if defendants’ refusal to grant him any exemption to

the grooming regulation is upheld. Plaintiff testified at the

preliminary injunction hearing and presented evidence

showing that the Jewish prohibition against cutting his beard -

and sidelocks is absolute. (See Doc. 20, Pl. Exh. 4 at 1; see

also Doc. 20, Pl. Exh. 4 at 2-3). Like the Jewish inmates in

Whitney v. Brown who without weekly Sabbath services were

* The Court is not unmindful that the same grooming

regulation at issue here was upheld by the Sixth Circuit in

Pollock v. Marshall, 845 F.2d 656 (6" Cir.), cert. denied, 488

U.S. 897 (1988), against a challenge by a Lakota American

Indian who sought to enjoin prison officials from cutting his

hair. Pollock is nevertheless distinguishable as the inmate in

that case, unlike plaintiff here, failed to challenge the factual

basis for the penological justifications asserted by prison

officials. This case is more like Whitney v. Brown, 882 F.2d

1068 (6" Cir. 1989), where there is an absence of a factual

underpinning relating to the particular accommodation sought

by plaintiff.

65a

left with “nothing” in terms of a communal religious study,

882 F.2d at 1077, plaintiff here who is prevented from

observing the commandment prohibiting the cutting of his

beard and sidelocks is similarly left with nothing. The ability

to exercise the other doctrines of his Orthodox Jewish faith,

such as keeping kosher or wearing a yarmulke, in no way

substitutes for or mitigates against the seriousness of

violating the commandment not to shave one’s beard or cut

one’s sidelocks. The other practices of his Jewish faith are in

no way related to the tenet not to cut his beard or sidelocks

and do not offer an alternative to keeping his beard and

sidelocks in accordance with Orthodox Jewish law.

Third Turner Factor: what impact would

accommodating plaintiff’s religious beliefs have on

others?

In terms of the third Turner factor, as discussed

above, issues of fact exist as to whether exempting plaintiff

from the grooming regulation based on his sincerely held

religious beliefs would impose more than a minimal burden

on prison staff and resources. Whether such an exemption

would lead to more “intensive” searches by prison guards as

defendants claim or a brief finger search lasting two or three

seconds conducted by plaintiff himself is at issue. In

addition, plaintiff's evidence showing no additional staff or

financial resources were committed toward providing more

security for plaintiff and the four other Native American

inmates seeking an exemption indicates that defendants’

proffered justification for denying an exemption to plaintiff is

a debatable issue. Likewise, whether permitting an

exemption to plaintiff would increase a perception of

preferential treatment to plaintiff and negatively impact other

inmates is at issue given the evidence of an absence of any

actual security problems posed by the past exemption to

plaintiff.

66a

Fourth Turner Factor: are there ready alternatives to

enforcing the grooming regulation against plaintiff that

fully accommodate plaintiff's rights?

The evidence of readily available alternatives to

defendants’ security concerns indicates that defendants’

denial of an exemption to the grooming regulation to plaintiff

may be an exaggerated response to prison concerns. Turner,

482 U.S. at 90. As discussed above, plaintiff's evidence

shows the procedures for searching his beard utilized in the

past were minimally invasive and brief. Plaintiff simply ran

his fingers through his beard. There is evidence that plaintiff

is the only Orthodox Jewish inmate seeking an exemption to

the grooming regulation. Moreover, defendants’ concern

with prompt identification of escaped inmates is mitigated by

the existence of photographs of plaintiff with his beard and

sidelocks as well as with shorter facial hair following the

cutting of his beard in April 1998. Defendants dispute the

efficacy of these alternatives. Thus, an issue of fact exists as

to whether these readily available alternatives _ fully

accommodate plaintiff's rights at a de minimis cost to

defendants’ security interests.

Summary judgment is not appropriate every time

prison officials can articulate a possible but unsupported

foundation for a contested regulation. Whitney, 882 F.2d at

1074. The Supreme Court in Turner and the Sixth Circuit in

Whitney repeatedly looked to the underlying record for

factual support of the articulated justifications for the

regulations in question. Defendants have articulated

generalized reasons supporting the grooming regulation.

Plaintiff’s elicitation of the absence of a factual basis for the

asserted security concerns casts doubt on and calls into

question the credibility of those assertions. These

inconsistencies and contradictions in defendants’ evidence

67a

create a factual issue of credibility which cannot be resolved

on summary judgment. Where the trial judge must assess the

credibility of a witness, the case is particularly inappropriate

for summary judgment and requires a hearing on the merits.

In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 909 (6" Cir.

1982). Therefore, defendants’ motion for summary judgment

and plaintiff's cross-motion for partial summary judgment

should be denied.

IT IS THEREFORE RECOMMENDED THAT:

I. Defendants’ motion for summary judgment be denied.

he Plaintiff's cross-motion for partial summary judgment

be denied.

Date: 1/29/99 s/Jack Sherman, Jr.

Jack Sherman, Jr.

United States Magistrate Judge