Opposition Brief — Wilkinson v. Flagner

NAL (6) Supreme Court, U.S.

| \F) FILES

NO. Ol-324 SEP 25 200!

IN THE SUPREME COURT OF THE UNITED erxrie sac

REGINALD A. WILKINSON, ET AL. PETITIONERS

V.

HBRANDON LEE FLAGNER RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MOTION TO PROCEED JN FORMA PAUPERIS

Respondent, by counsel, hereby moves pursuant to Rule 39 of the Rules of

the Si:preme Court of the United States for leave to proceed Jn Forma Pauperis in

these proceedings.

In support of this Motion, Respondent states that on July 5, 1996, he

tendered a Pro Se Complaint, as well as a pro se Motion for Leave to Proceed Jn

Forma Pauperis pursuant to 28 U.S.C. § 1915. By Order rendered on August 26,

1996 the United States District Court for the Southern District of Ohio, Western

Division granted Respondent’s application pursuant to 28 U.S.C. § 1915(a).

At the time the action was filed, Respondent was an inmate at the Lebanon

Correctional Institution. On November 23, 1996, he was transferred to the

Madison Correctional Institution and is now !ocated in the Ross Correctional

facility in Chillicothe, Ohio. By pro se Motion filed on October 3, 1996 the

Respondent sought appointment of counsel pursuant to 28 U.S.C. § 1915(d). The

Motion for Appointment of Counsel was subsequently granted on October 22,

1996 and the undersigned was appointed counsel for the Respondent herein.

_ The Plaintiff is currently an inmate in the Ross Correctional Institution, and

hes no assets with which to oppose the Petitioner’s Petition for Writ of Certiorari.

WHEREFORE, Respondent respectfully requests that he be granted leave to

proceed in forma pauperis for purposes of submitting his Brief in Opposition, and

for all subsequent proceedings before the Supreme Court for the United States of

America.

Respectfully submitted,

i

ARNOLD TAYLOR

_ MICHAEL O’HARA (OH 0014966)

“ O’HARA, RUBERG, TAYLOR, SLOAN & SERGENT

25 Crestview Hills Mall Road, Suite 201

P. O. Box 17411

Covington, KY 41017-0411

(859) 331-2000

ATTORNEYS FOR RESPONDENT

E:\DOCS\FLAGNER.CIV\Pleadings\Motionto.Proceed. wpd

NO. O|- 2324

IN THE SUPREME COURT OF THE UNITED STATES

REGINALD A. WILKINSON, ET AL. PETITIONERS

¥.

HBRANDON LEE FLAGNER RESPONDENT

-

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

ARNOLD TAYLOR :

MICHAEL 0” (OH 0014966)

- O’HARA, ERG, TAYLOR, SLOAN & SERGENT

25 Crestyfew HillsMall Road, Suite 201

P. O. Box 17411

Covington, KY 41017-0411

(859) 331-2000

ATTORNEYS FOR RESPONDENT

QUESTION PRESENTED

Whether Jurner v. Safley, 482 U.S. 78, 89 (1987) allows the Respondent to

pursue as-applied challenges to facially valid prison regulations, where inmate

presents evidence refuting each of the penological justifications offered by prison

officials to support denial of the inmate’s First Amendment rights, and where the

inmate has met his burden under 7urner.

TABLE OF CONTENT

QUESTION PRESENTED ..........-. 0. eee e eee eee tenet teen eens

TABLE OF CITED AUTHORITIES ............-: cece cece cece eee eens iil

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .......

COUNTER-STATEMENT OF THE CASE ..........--- 0 ee eee eee ee ee eee

Pe rere rrr ee reer rer eT er ey ee ee

I. THE SIXTH CIRCUIT’S DECISION IS MANDATED BY

THE SUPREME COURT’S DECISIONS IN TURNER AND

ABBOTT AND DOES NOT CONFLICT WITH ANY OTHER

CN. eae pcoe ds Rad wesesseneaedcokp ees cxeseeanasaeews

ll. | THESIXTH CIRCUIT’S DECISION DOES NOT CONFLICT

WITH THIS COURT’S PRECEDENT .............-----e--

Ill. THE SIXTH CIRCUIT DECISION WILL NOT PRODUCE

ADDITIONAL IMPACT UPON PRISONS, JAILS AND

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TABLE OF CITED AUTHORITIES

Amatel v. Reno, 156 F. 3d 192, 200-201 (D.C.Cir. 1998) ................... 4

Bell v. Wolfish, 441 US. S20, SAG (IGT) 2 ooo vce sccccvcsnccenasesecsees 2,6

Flagner v. Wilkinson, 241 F.3d 475, 483 (6" Cir. 2001). .......... 2, 3,6, 7, 8,9

Green v. Polunsky, 229 F.3d 486 (5™ Cir. 2000) ........... 0. cee cece eee. 5

Hines v. South Carolina Dept. of Corrections, 148 F.3d 353 (4" Cir. 1998) ....4

Pas v; PE, GET Ci eT PE, on tn 6050 Ws abe ans dana>eanes 2,9, 10

Pollack v. Marahall, 654 F.26 GSG (IGGS) «5 ones ciccasacsncncasascsacaas 10

Thornburgh v. Abbott, 490 U.S. 401, 403 (1989) ... 0.0.0.0... 2. eee eee i, 7, 10

Turner v. Safley, 482 U.S. 78, 89 (1987) ............... i, 2, 3, 4, 5, 6, 7, 8, 10

Whitney v. Brown, 882 F.2d 1068 (6™ Cir. 1989) ...........2..2.00008- 6, 7,9

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Petitioners have accurately set forth the Constitutional, statutory and

administrative provisions involved in their Petition.

COUNTER-STATEMENT OF THE CASE

Respondent, an Hasidic Jew, filed this action pursuant to 42 U.S.C. §1983

alleging that Petitioners application of its grooming regulation (Ohio

Administrative Code Section 5120-9-25(F)) to require Respondent to remove his

sidelocks and cut his beard violated his religious tenets and, thus, his rights as

secured by the free exercise clause of the First Amendment to the United States

Constitution.’ The Sixth Circuit held that the individual Petitioners were entitled

to qualified immunity but that, with respect to Respondent’s request of declaratory

and injunctive relief, there was a genuine dispute of material fact as to whether

Respondent’s First Amendment rights were violated.

Petitioners attempted below to justify their application of the grooming

regulation to prevent Respondent from complying with his religious mandates by

offering only the conclusory affidavit of Petitioner Wingard. Both the District

Court and the Court of Appeals found that Respondent presented substantial

The length of Petitioner’s hair on his head is not an issue in this case since his

religious tenets permit him to keep his hair trimmed within the Regulation’s limits of an inch and

a half.

evidence in the record undercutting each of the penological justifications

articulated by Petitioners. The Court held:

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 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.

Flagner v. Wilkinson, 241 F.3d 475, 483 (6" Cir. 2001). (App. Sla-15b). In so

holding, the Court of Appeals properly followed this Court’s precedent as

established in Bell v. Wolfish, 441 U.S. 520, 548 (1979), Pell v. Procunier, 417

U.S. 817 (1974) and Turner v. Safley, 482 U.S. 78 (1987).

ARGUMENT

I. THE SIXTH CIRCUIT’S DECISION IS MANDATED BY THE

SUPREME COURT?’S DECISIONS IN TURNER AND ABBOTT

AND DOES NOT CONFLICT WITH ANY OTHER CIRCUIT.

Petitioners incorrectly argue that the Sixth Circuit’s decision in this action

conflicts with holdings in other Circuits. Petitioners merely recite the holdings

from decisions from other Circuits without any analysis of the applicable facts.

Such an analysis reveals no conflict.

The Court of Appeals began with the premise mandated by this Court that

inmates retain rights to free exercise of religion and that prison officials may

impinge on those constitutional rights “only if the regulation is reasonably related

to legitimate penological interest." Turner v. Safley, 482 U.S. 78, 89 (1987). See

Flagner at 483; Pet. App. p. 11a. Reasonableness is determined by applying

Turner's four-factor test as the Court of Appeals did here. Those factors include

the following: (1) whether there is a "valid rational connection" between the

regulation and the legitimate governmental interest which it allegedly furthers; (2)

whether there are alternative means by which the inmate may exercise the right

impinged; (3) what impact the accommodation of the inmate's constitutional right

will have on guards, other inmates, or the allocation of prison resources generally;

and (4) the existence or absence of ready alternatives to the regulation in question.

Each was considered in the manner required by this Court in Turner and followed

in each of the Circuits cited by Petitioners. See Flagner at 484-487; Pet. App. 16a

- 23a.

In applying these factors, the court reviewed the facts presented by

Respondent, facts which the prisoner plaintiffs in each of the cases cited by

Petitioners failed to produce. These facts include Warden Wingard’s concession

in deposition testimony that religious grooming exemptions previously permitted

caused no security problems; that Respondent had been permitted to grow his

3

sidelocks and beard for several years without incident; that during these several

years the exemptions caused no burdens on security staff (they had Plaintiff

simply run his fingers through his own sidelocks and beard on only a few

occasions); and that the appearance of an Hasidic Jew was not considered a "gang

identifier." /d.

None of the inmate plaintiffs in the cases cited by Petitioners presented such

strong evidence undercutting the penological justifications offered by prison

officials. For example, in Amatel v. Reno, 156 F. 3d 192, 200-201 (D.C.Cir. 1998)

the Court relied on "a significant body of research" to support the regulation

proscribing pornography in prisons. The D.C. Circuit makes it quite clear that, in

spite of its decision on the facial validity of the regulation, it may still be subject

to constitutional attack in individual cases depending on the manner in which it is

applied. "If the Bureau of Prisons applies the regulations in a manner that would

violate the Safley principles, of course, that would be another case." /d. at 203.

Accordingly, the principal the Petitioners would have this Court adopt is undercut

by a case they rely upon.

The same analytical flaw exists with the other Circuit cases cited by

Petitioners. In Hines v. South Carolina Dept. of Corrections, 148 F.3d 353 (4"

Cir. 1998), the Court relied on the record developed by the State, which it notes

4

was not disputed by the inmates. /d. at 358. Likewise, in Green v. Polunsky, 229

F.3d 486 (5" Cir. 2000), the court dismissed the complaint as failing to state a

claim. It appears that the inmate failed to allege facts sufficient to undercut the

prison officials’ asserted penological concerns. /d. at 491.

To Respondent’s knowledge, no Circuit has held that, once a regulation has

been found facially valid, its application can never be challenged as

unconstitutional. Such would be inconsistent with Turner's mandate to consider

the four factors set forth above. Indeed, without such an individual analysis it is

not possible to determine whether an inmate’s First Amendment needs can be

accommodated "at de minimis cost to valid penological interests." Turner 482

U.S. at 91.

Il. THE SIXTH CIRCUIT’S DECISION DOES NOT

CONFLICT WITH THIS COURT’S PRECEDENT.

Petitioners argue unconvincingly that the decision in Flagner violates

precedent established by this Court. To the contrary, the opinion of the Sixth

Circuit is entirely consistent with this Court’s prior holdings. In Turner, this Court

defined the limits on a prison official’s constitutional discretion to limit an

inmate’s right to exercise his religious beliefs, stating as follows:

But 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.

Turner, 482 U.S. at 90-91.

There can be no doubt from this discussion that 7urner envisions trial

courts addressing specific circumstances surrounding the religious needs of

individual inmates. Indeed, it is impossible to consider "alternatives" promoted by

"an inmate claimant," and to determine whether those alternatives may be

accommodated "at de minimis costs" to the penological interests of the prison

officials, without considering the facts surrounding the inmate’s claim.

It is also clear that Petitioners’ argument contravenes the Supreme Court’s

mandate in Jhornburgh v. Abbott, 490 U.S. 401 (1989), that trial courts must

consider the manner in which prison regulations are applied as well as facial

validity. This contradiction was appropriately noted by the Court of Appeals. "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." Flagner at 484, n.5. Applying the Turner

analysis, the Abbott Court concluded that the prison regulation at issue was

facially valid; however, the Court remanded the case for further examination of the

plaintiffs’ as-applied challenges concerning 46 publications introduced at trial. /d.

at 404. Clearly, an individual inmate’s "as-applied" challenge to regulations is

consonant with this Court’s precedent .

Additionally, the decision in F/agner applies this Court’s holding in Bell v.

Wolfish, 441 U.S. at 548, where the Court held that deference normally accorded

prison officials is lost where the inmate presents "substantial evidence in the

record to indicate that the officials have exaggerated their response." Applying

this precedent, the Sixth Circuit found that:

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.

Flagner at 483. The Respondent in this case, unlike any of the inmates in the

other cases cited by Petitioners, ". . . presented sufficient evidence that prison

officials’ response to a supposed security concern was exaggerated." Flagner, 241

F.3d at 484, n. 5. See also Whitney v. Brown, 882 F.2d 1068 (6" Cir. 1989), where

the inmate, like Mr. Flagner, offered substantial isha undercutting each of the

penological concerns articulated by prison officials in its decision to deny the

inmate plaintiffs in Whitney access to weekly Jewish Sabbath services. The

constitutional principle advanced by Petitioners here would have prevented

Respondent here and the plaintiff in Whitney from offering evidence which

disputed the articulated penological concerns.

None of the cases cited by Petitioners involved an inmate presenting proof

sufficient to call into question the penological interests and concerns provided as

justification for certain prison regulations. None have offered evidence similar to

that submitted by Mr. Flagner here, suggesting that the prison officials’

application of a regulation was an “exaggerated response” to a supposed security

concern.

Contrary to Petitioners’ assertion, the decision rendered by the Sixth Circuit

in this case does not conflict with any prior authority of this Court. Indeed, the

analysis and decision of the panel in this case 1s entirely consistent with and

mandated by rontecitins authority previously announced by the Supreme Court in

Turner v. Safley, 482 U.S. 78, 89 (1987). Applying Turner, the Court of Appeals

held:

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.

Flagner at 487, Pet. App. P. 23a.

Petitioners contend that the Sixth Circuit’s decision requires prison officials

to demonstrate something more than potential danger caused by exempting an

inmate from a challenged prison regulation in a particular case. To the contrary,

this Court will not find such a rule enunciated anywhere in the Sixth Circuit

decision in this case. It must be emphasized, that the evidence upon which the

inmate in this case relies, is evidence produced from the testimony and documents

of Petitioners themselves. That evidence confirmed that the articulated

penological concerns really had no application to the exemption sought by the

Plaintiff. Applying the Court’s holding in Whitney, the Panel concluded that,

Like the Defendants in Whitney, the Defendants here

have articulated a list of generalized concerns 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 thereby called into question the credibility of those

assertions. Resolution of these credibility issues can best

be achieved by the trial judge during further proceedings

regarding Flagner’s as-applied challenge to the grooming

regulation.

Flagner, 241 F.3d at 487; Pet. App. 23a - 24a. The Panel merely followed this

Court’s mandate that deference normally afforded prison officials will not be

available to "prison officials if there is ‘substantial evidence in the record to

indicate that the officials have exaggerated their response.’" /d. quoting Pell v.

Procunier, 417 U.S. 817, 827 (1974).

As it has been instructed to do by this Court, the court below considered Mr.

Flagner’s as-applied challenge to the grooming regulation and found that the

evidence he submitted entitled him to a ruling on the merits. See Thornburgh v.

Abbott, 490 U.S. 401, 403 (1989). Moreover, Respondent 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, Pollock v.

Marshall, 854 F.2d 656 (1988), cert. denied 488 U.S. 897 (1988).

There simply is nothing in the decision of the Sixth Circuit that strays from

any precedent established by this Court. The Petition should be accordingly

denied.

Iii. THE SIXTH CIRCUIT DECISION WILL NOT

PRODUCE ADDITIONAL IMPACT UPON

PRISONS, JAILS AND COURTS.

Petitioners attempt to frighten the Court into reviewing this case by giving it

a significance it does not deserve. The holding of the Sixth Circuit here is wholly

dependent on the facts developed by the parties to this case. Since it follows

established precedent and sets no new law, its precedential value is limited to the

specific facts of this case and can create no burden that did not already exist with

the holdings in Turner, Pell and Abbott. The lower court has not broken new

legal ground and does not expand the rights of those incarcerated.

10

In Turner, this Court set the precedent under which an inmate plaintiff may

proceed, and the Respondent is seeking nothing more than application of that

precedent. The Petitioners’ argument that the court system will be saturated with

constitutional challenges and that prison officials will discontinue enforcement of

penal regulations is completely without support. Their argument is pure hyperbole

and insufficient to support the granting of a writ for certiorari.

CONCLUSION

Respondent has demonstrated that the Sixth Circuit properly applied this

Court’s precedent in granting qualified immunity to Defendants and in finding that

there was a genuine dispute of material fact regarding the issue of whether the

grooming regulation may be constitutionally applied to require Respondent to

violate the tenets of his faith as an Hasidic Jew. Additionally, the Sixth Circuit

did nothing more than recognize that all inmates retain certain First Amendment

protections and that they are entitled to present evidence addressing the four

Turner factors. Unlike the plaintiffs in cases relied upon by Petitioners,

Respondent here actually developed a strong factual case refuting the penological

justifications proffered by Petitioners. These facts clearly distinguish this case

from those cited by Petitioners, thus leaving no conflict among the Circuits. The

Petition, accordingly, should be denied.

1]

Respectfully submitted,

Doe Wet € Ag _——

ARNOLD TAYLOR

MICHAEL O’HARA (OH 0014966)

O’HARA, RUBERG, TAYLOR, SLOAN & SERGENT

25 Crestview Hills Mall Road, Suite 201

P. O. Box 17411

Covington, KY 41017-0411

(859) 331-2000

ATTORNEYS FOR RESPONDENT

APPENDIX

Order of the United States District Court, Southern District of Ohio,

Western Division dated September 6, 1996

Respondent’s Motion for Appointment of Counsel

Order of the United States District Court, Southern District of Ohio,

Western Division dated October 23, 1996

Flagner v. Wilkinson, 241 F.3d 475 (6" Cir. 2001).

13

UNITED STATES DISTRICT COURT.

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION CESTE = 5 sein, -

Ser 3

(I Duan ony ’ sity

Hbrandon Lee Flagner, H.3m SHEET

Plaintiff

ee

VS Se ee Case No...

Reginald Wilkinson, et'al~

Defendants se od

ORDER

Plaintiff filed an application to proceed in forma pauperis pursuant

to 28 U.S.C. § 1915(a) in connection with a civil suit brought under 42

U.S.C. § 1983. In accordance with section 804(a)(3) of the recently-

enacted Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat.

1321, amending 28 U.S.C. § 1915, plaintiff must pay an initial partial

filing fee of 20 percent of the greater of the average monthly deposits to

his prison account or the average monthly balance in his account for the

six month period immediately preceding the filing of the complaint.

After payment of the initial partial filing fee, plaintiff is further required

to make monthly payments of 20 percent of the preceding month’s

income credited to his prison account until he pays the full amount of

the filing fee. Prison Litigation Reform Act, Pub. L. No. 104-134, 110

Stat. 1321, § 804(a\3).

A prisoner may not be prohibited from bringing a civil action

because he has no assets and no means to pay the initial filing fee. Id. If

plaintiff does not currently possess the funds to pay the initial filing fee,

the amount assessed by the Court will be collected from plaintiffs prison

account when such funds become available.

MO

Plaintiffs affidavit reveals that he has insufficient funds in his

Prison account to pay the full filing fee. Plaintiffs application reveals

that he currently possesses the sum of $21.69 in his prison account: his

average monthly balance for the six month period prior to the filing of

the complaint was $62.39; and his average monthly deposits for the six

month period prior to the filing of the complaint amounted to $18.48.

After consideration by this Court of the plaintiffs affidavit of

indigence only, without regard to the merits of this case, plaintiffs

ee of $12.47 (20 percent of average monthly b. lance). The

plaintiffs prison account to the Clerk of Court located in Columbus,

Ohio the initia] partial filing fee assessed against plaintiff, when funds

a true and correct copy of any document was mailed to defendants or

defendants’ counsel. Any paper received by a district judge or

It is further ORDERED that Plaintiff shall inform the Court

2

promptly of any changes of address which occur during the pendency of

this lawsuit.

It is further ORDERED that defendants shall file a response to

plaintiffs motion for preliminary injunction within twenty-one (21)

days of the date they are served with the complaint and motion for

preliminary injunction.

IT IS SO ORDERED

Date: _ 2/24] 4b MA Motsma/ Vr

kil Jack Sheyman, Jr.

United States Magistrate Judge

‘IN THE ED STATES DISTRICT ©

FOR THE SCUTHERN OFSTRICT OF OCHS

. WESTERN Biv Sion

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UNITED STATES DISTRICT COURT °*

SOUTHERN DISTRICT OF OHIO. 4. ss cg

WESTERN DIVISION (ep 23 1-3 ks

Hbrandon Lee Flagner, ~ 2

; . <I>

Plaintiff : HEBD

\ : i 7 TT.

vs Case No. C-1-96-887 | rae

Reginald A. Wilkinson, et al., Geeiced |

Defendants

ORDER

This matter is before the Court on plaintiffs motion for

appointment of counsel (Doc. 9) and motion for preliminary injunction.

(Doc. 4). ;

For good cause shown, plaintiffs motion for appointment of

counsel is CONDITIONALLY GRANTED upon the Clerk of Court’s

ability to secure counsel for him. The Clerk is therefore ORDERED to

make reasonable efforts in that regard.

Plaintiffs motion for preliminary injunction shall be set for a

telephonic hearing on Monday, November 18, 1996 at 2:00 p.m.

IT IS SO ORDERED.

Date: lo 22 [4c - To ctacting:

]

kl Jack rman, Jr.

Unit tates Magistrate Judge

LENSEE 241 {3d 475

HBRANDON LEE FLAGNER. Plaintiff-Appellee. v. REGINALD WILKINSON. et

al.. Defendants-Appellants.

No. 99-4145

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

241 F.3d 475: 2001 U.S. App. LEXIS 2560; 2001 FED App. 0047P (6th Cir.)

October 16, 2000, Argued

February 22, 2001, Decided

February 22, 2001, Filed

SUBSEQUENT HISTORY:

{**1] Rehearing Denied May 25, 2001. Reported at:

2001 U.S. App. LEXIS 11609

PRIOR HISTORY:

Appeal from the United States District Court for the

Southern District of Ohio at Cincinnati. No. 96-00887.

Susan J. Dlott, District Judge.

DISPOSITION:

REVERSED and REMANDED.

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff filed a pro se 42

U.S.C.S § 1983 action against defendants alleging that a

prison grooming regulation violated his religious rights.

Defendants moved for summary judgment on qualified

immunity grounds. The United States District Court for

the Southern District of Ohio at Cincinnati denied the

motion, and defendants appealed.

OVERVIEW: Plaintiff, a practicing Orthodox Hasidic

Jew, sought damages for defendants’ forcible cutting of

his beard and sidelocks, and declaratory and injunctive

relief preventing defendants from cutting them in the

future. At the time of the forced cutting, plaintiff's nght

to grow his beard and sidelocks in contravention of the

grooming regulation was not sufficiently clear that a

reasonable official would have understood that what he

was doing violated that right. Thus, plaintiff could not

show that defendants violated a clearly established

constitutional right. Defendants, then, were entitled to

qualified immunity on plaintiff's damages claim.

However, reversal of the denial of summary judgment

based on qualified immunity did not preclude plaintiff's

as-applied challenge to the grooming regulation.

Defendants articulated generalized penological concerns

regarding the impact of exempting plaintiff from the

grooming regulation. Plaintiff, in tum, showed an

absence of a factual basis for those concerns and called

their credibility into question. These issues were best

resolved by a trial judge. Thus, plaintiffs’ claims for

declaratory and injunctive relief were remanded.

OUTCOME: The appeals court reversed the district

court's denial of summary judgment to the defendants

based on qualified immunity. However, this reversal did

not preclude plaintiff's as-applied challenge to the prison

grooming regulation. Accordingly, plaintiff's claims for

declaratory and injunctive relief were remanded to the

district court for further consideration.

CORE CONCEPTS

Criminal Law & Procedure Postconviction

Proceedings : Imprisonment & Prisoner Rights

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

Criminal Law & Procedure Postconviction

Proceedings : Imprisonment & Prisoner Rights

See Ohio Admin. Code § 5120-9-25(F) (2000).

Civil Procedure : Appeals : Appellate Jurisdiction :

Collateral Order Doctrine

Page 2

24] F.3d 475. *: 2001 U.S. App. LEXIS 2560. **:

2001 FED App. 0047P (6th Cir.)

A federal court of appeals has jurisdiction over an appeal

from the distnet court's order denying summary

judgment based on qualified immunity. which ts_ an

immediately appealable collateral order.

Civil Procedure : Appeals : Appellate Jurisdiction

Constitutional Law Civil Rights Enforcement

Official Immunities

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.

Civil Procedure : Appeals : Standards of Review : De

Novo Review

The determination of whether qualified immunity applies

to an official's actions 1s a legal determination that an

appeals court reviews de novo.

Civil Procedure : Summary Judgment : Summary

Judgment Standard

A motion for summary judgment will be granted if the

evidence presented to the court demonstrates that there 1s

no genuine issue of material fact and that the movant 1s

entitled to a judgment as a matter of law. Fed. R. Civ. P.

56. An appeals court must not weigh the evidence, but

rather it must only determine whether there is a factual

dispute that precludes summary judgment.

Constitutional Law Civil Rights Enforcement

Official Immunities

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.

Constitutional Law : Civil Rights Enforcement :

Official Immunities

Qualified immunity protects public officers from undue

interference with their duties and from potentially

disabling threats of liability.

Civil Procedure : Summary Judgment : Summary

Judgment Standard

Constitutional Law : Civil Rights Enforcement :

Official Immunities

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.

Constitutional Law : Civil Rights Enforcement :

Official Immunities

The first step in determining if the defendants are entitled

10 qualified smmunity is to examine whether. based on

the appheable law. a constitutional violation occurred. If

a constitutional violation is found, the United State Court

of Appeals for the Sixth Circuit next considers whether

the violauon involved clearly established constituuional

nehts of which a reasonable person would have known.

lo determine whether a constitutional right 1s “clearly

established.” the court looks first to the decisions of the

Umited States Supreme Court, then to its own decisions

and other courts within the Sixth Circuit, and finally to

decisions of other circuits.

Constitutional Law : Civil Rights Enforcement : Civil

Rights Act of 1871 :

Constitutional Law

Official Immunities

Under the United States Court of Appeals for the Sixth

Circuit's qualified immunity framework, to plead a

proper claim under 42 U.S.C. § 1/983, a plaintiff must

identify a right secured by the United States Constitution

and the deprivation of that right by a person acting under

color of state law, such that the contours of the right are

sufficiently clear that a reasonable official would

understand that what he is doing violates that right.

Civil Rights Enforcement

Constitutional Law Civil Rights Enforcement

Official Immunities

After determining that a constitutional right is clearly

established, the final step in the United States Court of

Appeals for the Sixth Circuit's 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.

Civil Procedure : Summary Judgment : Summary

Judgment Standard

Constitutional Law

Official Immunities

Summary judgment is not appropriate on qualified

immunity grounds if there is a genuine factual dispute

relating to whether the defendants committed acts that

allegedly violated clearly established rights.

Civil Rights Enforcement :

Criminal Law & Procedure : Postconviction

Proceedings : Imprisonment & Prisoner Rights

Convicted prisoners do not forfeit all constitutional

protections by reason of their conviction and

confinement in prison.

Constitutional Law : Fundamental Freedoms :

Freedom of Religion: Free Exercise of Religion

241 F.3d 475, *; 2001 U.S. App. LEXIS 2560. **:

2001 FED App. 0047P (6th Cir.)

Inmates retain First Amendment. U.S. Const. amend. 1.

rights. including the night to free exercise of religion.

Constitutional Law Fundamental Freedoms

Freedom of Religion: Free Exercise of Religion

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 and 1s sincerely held.

Criminal Law & Procedure Postconviction

Proceedings : Imprisonment & Prisoner Rights

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. To ensure that courts

afford appropriate deference to prison officials, 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. The proper standard is

as follows: when a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it

is reasonably related to legitimate penological interests.

Constitutional Law : Civil Rights Enforcement : Civil

Rights Act of 1871

An inmate alleging a 42 U.S.C.S. § violation bears the

burden to allege and prove that the defendant official

violated a clearly established constitutional right.

Constitutional Law : Civil Rights Enforcement

Official Immunities

To deny qualified immunity protection to the defendants,

the law requires that in the light of pre-existing law the

unlawfulness of defendants’ conduct must be apparent.

Constitutional Law : Civil Rights Enforcement :

Official Immunities

The defense of qualified immunity protects officials from

individual liability for money damages but not from

declaratory or injunctive relief.

Criminal Law & Procedure : Postconviction

Proceedings : Imprisonment & Prisoner Rights

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.

Constitutional Law : Fundamental Freedoms :

Freedom of Religion: Free Exercise of Religion

Inmates retain rights to free exercise of religion. Prison

officials may impinge on these constitutional nights only

if the regulation is reasonably related to legitimate

penological interests. While courts should generally

defer to the expertise of prison officials in matters

involving prison administration. this deference 1s only

afforded in the absence of substantial evidence in the

record to indicate that the officials have exaggerated

their response.

Criminal Law & Procedure Postconviction

Proceedings : Imprisonment & Prisoner Rights

Courts employ a four-factor analysis to determine

whether a prison regulation is reasonably related to

legitimate penological interests. These factors are not

necessarily weighed evenly. but rather they are

guidelines for the court to assess whether the prison

officials’ actions are reasonably related to a_ valid

penological basis. 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. 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.

Criminal Law & Procedure Postconviction

Proceedings : Imprisonment & Prisoner Rights

Courts employ a four-factor analysis to determine

whether a prison regulation is reasonably related to

legitimate penological interests. The final three factors

should be balanced together. The second factor to

consider is whether there are alternative means of

exercising the right that remain open to prison inmates.

The third factor courts 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. When accommodation of

an asserted right will have a significant ripple effect on

fellow inmates or on prison staff, courts should be

particularly deferential to the informed discretion of

corrections officials.

Criminal Law & Procedure : Postconviction

Proceedings : Imprisonment & Prisoner Rights

Courts employ a four-factor analysis to determine

whether a prison regulation is reasonably related to

legitimate penological interests. With respect to the

fourth factor, the absence of ready alternatives is

evidence of the reasonableness of a prison regulation.

Likewise, the existence of obvious, easy alternatives may

be evidence that the regulation is not reasonable, but is

an exaggerated response to prison concerns. 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. However, if an inmate claimant

241 F.3d 475, *: 2001 U.S. App. LENIS 2560. **.

2001 FED App. 0047P (6th Cir.)

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

regulanon does not satisty the reasonable relationship

standard

Criminal Law & — Procedure Postconviction

Proceedings : Imprisonment & Prisoner Rights

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. As long as prison authorities present evidence

to support their judgment that prison security will be

undermined in the absence of a challenged regulation, a

court will not substitute its own judgment for theirs.

However. courts afford no deference to the policies and

judgments of prison officials if there 1s substantial

evidence in the record to indicate that the officials have

exaggerated their response.

COUNSEL:

ARGUED: 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.

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.

JUDGES:

Before. NELSON and MOORE, Circuit Judges;

WILHOIT, District Judge. * 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.

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

United States District Judge for the Eastern

District of Kentucky, sitting by designation.

OPINIONBY:

KAREN NELSON MOORE

OPINION:

[7477]

KAREN NELSON MOORE, Circuit Judge The

plainuff. Hbrandon Lee Flagner. filed a 42 US ¢

/Y83 achon alleging that an Ohio prison [**2] grooming

regulation violated his constitutional nght 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 US. 897, 102 L. Ed

2d 228, 109 S. Ct. 239 (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 1s a

factual dispute on the issue of whether the defendants

have a valid penological interest. Accordingly, we

REMAND to the district court so that 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 [**3] suit against prison officials

challenging the enforcement of Ohio Administrative

Code § § 5120-9-25 (D) and (F), nl a prison grooming

regulation which [*478] requires Flagner to cut his

beard and sidelocks, also referred to as “peos,” in

contravention of the tenets of his religious faith. n2 The

defendants are ODRC employees who work at either the

Lebanon Correctional Institution (LeCl) or the Madison

Correctional Institution (MaCl). 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.

nl 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

tule. The following hairstyles or facial hair are

not permitted: Initials, symbols, dyes, multiple

Pave §

241 F.3d 475. *; 2001 U.S. App. LEXIS 2560, **:

2001 FED App. 0047P (6th Cir.)

parts. hair disproportionately longer in one area

than another (excluding natural — baldness).

weaves, wigs. dreadlocks and shaved heads

Other hairstyles not specifically listed herem may

be prohibited if they are determined to be either a

threat to security or contrary to other legitimate

penological concerns

Ohio Admin. Code § = 4$120-9-25(D) (2000)

(emphasis added). Subsection (F) provides.

“sideburns, beards. and moustaches 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). [**4]

n2 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 comers of your heads and do not

destroy the corners of your beards." Our Sages

explain tha 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

comers of the beard only with a razor. [Our Sages

spoke of] five corners; [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 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 1 off with a sliver of wood or the

hike

Joint Appendix ("J.A.") at 140 (PL's Ex. 4. Mem

from Aleph Inst. regarding Jewish Law)

(emphasis added)

[°*5]

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 recogmized 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 199]

when he converted to Judaism and prior to his transfer to

LeClI 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 LeCl, 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 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 [**6]

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 [*479]

[] which may include requiring [Flagner's] hair to be cut

or trimmed 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 MaClI; no additional security precautions

were taken with Flagner in excess of the security

measures taken with inmates-who complied with the

PUBLISHER'S NOTE:

Page(s) 3 missing in original.

Page 7

241 F.3d 475. *: 2001 U.S. App. LEXIS 2560. **.

2001 FED App. 0047P (6th Cir.)

explained that "damages suits concerning constitutional

violations need not proceed to tnal, 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. 57 L. Ed. 2d 8935.

98 S.Ct. 2894 (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. \fa constitutional violation

is found, we next consider whether the violation involved

"clearly established constitutional mghts of which a

reasonable person would have known." Id. at //58

(quoting Christophel v. 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 [**12] to decisions

of this Court and other courts within our circuit, and

finally to decisions of other circuits.” Id. (quoting

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

(citation omitted)). Under this framework, to plead a

proper claim under 42 U.S.C. § /983, "a plaintiff must

identify a right secured by the United States Constitution

and the deprivation of that right by a person acting under

color of state law," Russo v. City of Cincinnati, 953 F.2d

1036, 1042 (6th Cir. 1992), such that "the contours of the

right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that

right." Id. (quoting Anderson v. Creighton, 483 U.S.

635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)).

After determining that a constitutional right 1s

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 [*481] did was

objectively unreasonable in light of [the] clearly

established constitutional rights." Dickerson, 10] F.3d at

1158 [**13] (quoting Adams v. Metiva, 3] 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 nights.” Id.

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, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979).

Specifically, the Supreme Court has held that inmates

retain First Amendment rights, see Pell v. Procunier,

417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800

(1974), including the right to free exercise of religion.

See Cruz v. Beto. 405 U.S. 319. 322 n.2. 31 L) Ed. 2d

263.92 § Ct 1079 (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 [**14] 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 and is “sincerely held.” Aent y.

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 thei judgmeni 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 [**15]

restrictive than that ordinarily applied to alleged

infringements of fundamental constitutional rights.”

O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 96 L.

Ed. 2d 282, 107 S. Ct. 2400 (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, 96 L. Ed. 2d 64, 107

S. Ct. 2254 (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 Resources of Oregon

v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct.

1595 (1990). n4 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 [**16] by a compelling

governmental interest." Id. 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, 138 L. Ed. 2d 624, 117 S.

24) F.3d 475. *: 2001 U.S. App. LEXIS 2560. *-.

2001 FED App. 0047P (6th Cir.)

Cr 2157 (1997) As the district court and magistrate

judge correctly recogmized. [*482] after the Boerne

decision. our Circuit has consistently apphed the pre-

RFRA standard set forth im Turner to evaluate

challenges by prisoners to restrichons on the free

exercise of region See. e.g.. Spies v. boinevich, 173

F.3d 398. 403 (6th Cur 1999) (applying the Turner

standard to evaluate First Amendment free exercise

challenges to prison regulations)

n4 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

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

presented sufficient evidence [**17] that application of

the grooming regulation would violate his constitutional

rights. We agree with the distnct court that “material

issues of fact exist as to the legitumacy of defendants’

proffered justifications for enforcing the hair regulation

against plaintiff. Plaintiff has come forward with

evidence from which a tner of fact could reasonably

conclude that defendants’ enforcement of the grooming

regulation against plainuff was an exaggerated response

to or not done for the asserted security concerns.” J.A. at

236 (D. Ct. Order of 8/2499). 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 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, 5/5 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, [**18] however,

does not end here. We must now consider the district

court's legal conclusion that “at the time of plaintiff's

initial forced haircut in 1996, the law was clearly

established that prisoners retain the nght 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 night." Buckner, 36 F.3d at 539. In

Pollock v. Marshall. we upheld the application of an

earher version of the challenged Ohio prison grooming

regulation m an action mvolving a Lakota American

Indian who sought to enjoin prison officials from cutting

his hair in violation of his religious behefs. See Pollock

v. Marshall, S845 F 2d 656. 659-60 (oth Cir). cert.

denied. [**19] 488 US 897 102 L. Ed 2d 228. 1098

(tr 239 (1988) We held that “after balancing the

defendant's interest in keeping prisoners’ hai short

against the nght of the plaintiff to exercise the religion of

the Lakota Indians. the regulation restricting hair

length, as applied to the plamuff. is not

unconstitutional.” Id. (emphasis added). The defendants

in Pollock raised several legitimate penological concems

such as. “quick 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 “longer hair increases the

attractiveness of an inmate to other inmates.” Jd. 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 (quotung Anderson, 483 U.S. at 640)

To deny qualified immunity [**20] protection to the

defendants, the law requires that “in the light of pre-

existing law the unlawfulness must be apparent.” Id.

(quoting Anderson, 483 US. at 640). |*483)

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 nght.”

Russo, 953 F.2d at 1/042 (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 officials violated

a clearly established constitutional nght,” 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 [**21] of the qualified immunity

analysis. Accordingly, we REVERSE the district court's

denial of summary judgment to the defendants based on

qualified immunity.

C. Declaratory and Injunctive Relief

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The defense of qualified immuntty protects officials

from individual habilty for money damages but not from

declaratory or myunctive rehet. See Collyer v. Darling

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

US 1257 (1997). Cagle v. Gilley, 9S~ F 2d 1347, 1350

(6th Cir. 1992). Thus. our reversal of the district court's

demal of summary judgment based on qualified

immunity does not preclude Flagner from zomg forward

with his as-apphed challenge to the Ohio prison

grooming regulation insofar as he seeks dec laratory and

injunctive relief. “In considering a challenge to a prison

policy as applied, the proper inquiry 1s 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 US. 989, 118 L. Ed. 2d 398, 112 S. Ct. 1682 (1992)

(citing [**22] Thornburgh v. Abbowt, 490 U.S 401, 104

L. Ed. 2d 459, 109 S. Ct. 1874 (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 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 [**23]} 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. nS See Spies, [(*484)

173 F.3d at 403 (citing Turner, 482 U.S. at 89). These

factors are not necessarily weighed evenly, see /73 F.3d

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 at.” Turner. 482 US at 89 (quotation omitted).

[A] regulanion cannot be sustained where the logical

connection between the regulation and the asserted goal

1s So remote as to render [**24] the policy arbitrary or

rational.” Id at 89-90)

nS Judge Nelson's reliance on Spies ¥.

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, 104 L.

Ed. 2d 459, 109 S. Ct. 1874 (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 plamtiffs’ as- _

applied challenges conceming 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 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 III.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 II.C.2.

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2001 FED App. 0047P (6th Cir.)

[**25]

The final three Turner factors should be balanced

together. The second Turner factor to consider 1s

“whether there are alternative means of exercising the

night that remain open to prison inmates.” Turner. c482

( S at 90 The third Turner factor we consider “1s the

mpact accommodation of the asserted constitutional

right will have on guards and other mmates. and on the

allocation of prison resources generally.” Id. “When

accommodation of an asserted right will have a

significant ‘npple effect’ on fellow mmates or on prison

staff. courts should be particularly deferential to the

informed discretion of corrections officials.” Id. With

respect to the fourth Turner factor. “the absence of

ready alternatives 1s evidence of the reasonableness of a

prison regulation.” Id. Likewise. "the existence of

obvious, easy alternatives may be evidence that the

regulation 1s not reasonable. but is an ‘exaggerated

response’ to prison concerns.” Id. “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

[**26] complaint.” Jd. at 90-9]. However, "if an inmate

claimant can point to an alternative that fully

accommodates the prisoner's nights 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.” Id. at 9/

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 US. at 89 (quotation omitted). Defendant Wingard

stated that the prison grooming regulation is necessary

because “long hair and thick, [*485] full beards and

sideburns provide good hiding places for such

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

Aff., P 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, P 4).

However, with respect to Flagner specifically, no

contraband has ever been recovered by prison staff

during any search of his beard and sidelocks. [**27]

The defendants next assert that the grooming

regulation is necessary to promote their “compelling

interest 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., P 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 Hai Length Regulations were not

consistently enforced.” J.-A. at 82 (Wingard Aff. P 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. [**28}] 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 th. regulation

“furthers 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., P 8). This

rationale, however, 1s comp!etely 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 approximately two

to three seconds to perform. Furthermore, the defendants

have only searched Flagner's beard and sidelocks on a

few occasions. Assuming that "the 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 [**29] Aff., P 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,

P 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., P 21). Although it may be true

that the challenged grooming regulation, as a general

AR pele R ee nc MGR

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2001 FED App. 0047P (6th Cir.)

matter, helps alleviate the proliferaion of “gang

identifiers.” there is no evidence im the record that

Flagner's beard and sidelocks have ever been mistaken

fora “gang identifier.”

Next. the defendants assert that the grooming

regulation 1s needed to promote ready identification of

escaped inmates. [*486] Allowing an inmate [**30] 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., P 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 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., P 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

[**31] would help to identify him because they show a

range of his possible appearances.

Finally, the defendants argue that “long hair can lead

to increased plumbing problems by making clogged

drains more frequent." J.A. at 91 (Wingard Aff., P 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

Flagnér's beard and sidelocks have ever clogged the

sinks or showers of the prison.

2. Turner Factors Two, Three, and Four.

Looking to the second Turner factor, there are no

alternatives that remain open to [**32] Flagner in the

exercise of his rehgion 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 plainuff 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 plainuff 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 [**33] that fully accommodates

the plaintiff at de minimis cost to valid penological

interests." Id. at 9/. The defendants have already

admitted that the accommiodation of Flagner and the four

Native American inmates did not cause the [*487]

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 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 conceming 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 [**34] that "as 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 v. Johnson, 743 F.2d 408,

412-13 (6th Cir. 1/984), cert. denied sub nom.

Inosencio v. Johnson, 469 U.S. 1215, 84 L. Ed. 2d 336,

105 S. Ct. 1190 (1985). However, we afford no deference

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2001 FED App. 0047P (6th Cir.)

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, 4/7 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 11 was invalid." Whitney, S82 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." Id. at /074. Like the

defendants in Whitney. [**35] the defendants here have

articulated a list of generalized concerns regarding the

impact of exempting Flagner from the grooming

regulation. Flagner, however. has demonstrated the

absence of a factual basis for these pendlogical concerns

and has thereby called into question the credibility of

those assertions. Resolution of these credibility issues

can be best 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 MaCi, 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 [**36] 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 [*488] for the regulation. We therefore

REMAND to the district court to allow Flagner's as-

applied challenge seeking declaratory and injunctive

relief to proceed.

CONCURBY:

DAVID A. NELSON (In Part)

DISSENTBY:

DAVID A. NELSON (In Part)

DISSENT:

DAVID A. NELSON, Circuit Judge. concurring in

part and dissenting in part. ] 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

{**37] regarding facial hair. But because | believe that

the defendants are entitled to prevail at the first stage of

the qualified immunity analysis - i.e., because | 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. *** Plainuff 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. | 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 Mr. Flagner.

Even under the restrictive statutory standard rejected

by the Supreme Court in City of Boerne v. Flores, 52]

U.S. 507, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997),

[**38] the constitutionality of regulations such as Ohio's

was routinely upheld. See, for example, Harris v.

Chapman, 97 F.3d 499, 504 (I1th Cir. 1996), and

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

Boerne decisions, of course, have reached the same

result. See, e.g., Green v. Polunsky, 229 F.3d 486 (Sth

Cir. 2000), and Kimbrough v. 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);

or CALEY

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2001 FED App. 0047P (6th Cir.)

Brown v. Wilkerson. No. 94-4014 (6th Cir. 1995):

Pollock v. Marshall, 845 F.2d 656 (6th Cir 1988). See

also Mays v. Wilkinson, 1999 US) App LEXIS 8380.

No. 98-3341 (6th Cir. 1999) (unpublished order)

(affirming dismissal for failure to state a clam where

Ohio hair regulation was challenged under consttutional

provisions other than the Free Exercise Clause).

1 do not read Turner v. Safley, 482 U.S. 78. 96 L

Ed. 2d 64, 107 S§. Ct. 2254 (1987), [**39] 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 "running 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, "prison

administration is ... a task that has been committed to the

responsibility of those branches, and separation of

powers concems counsel a policy of judicial restraint.”

Id. 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 the ground that, as a matter of law, it

was "reasonably related to legitimate security [*489]

interests." Id. at 9]. The same sort of categorical analysis

led the Turner [**40] 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

impact 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

[**41] of prison administration, and avoid{] unnecessary

intrusion of the judiciary into problems particularly ill

suited to resolution by decree.’ O'Lone: 482 US. at 349

(quotation marks omitted). Penal authorities may need a

clear rule for dealing with certain continuing or recurming

situations, even when that rule could be better-tailored to

the rights of individual prisoners through a court's

flexible. case-by-case analysis." Spies v. Voinovich, 13

F 3d 398, 403-04 (6th Cir 1999)

It may be true. | suppose. that 1f 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 [**42] 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, | 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 implied invitation to challenge the regulation

on grounds comparable to those Mr. Flagner is being

[**43] 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

(*490] within the province and professional expertise of

corrections officials ....'"" 482 U.S. at 86 (quoting Pell v.

Procunier, 417 U.S. 817, 827, 41 L. Ed. 2d 495, 94S. Ct.

2800) (1974).

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2001 FED App. 0047P (6th Cir.)

The conclusion that Mr. Flagner's claim is without

legal merit finds support. | believe. in Employment

Division, Department of Human Resources of Oregon

ve Smith, 494 US. 872. 108 Lo kd 2d 876, 110 8S C1

1595 (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

ingesung a prohibited hallucinogen (peyote) in

connection with sacramental activities at a Native

American church. The Supreme Court answered in the

affirmative, [**44] reasoning that where the state's

object is not to prohibit or burden the exercise of

religion, and any burden imposed by the state 1s “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,

96 L. Ed. 2d 282, 107 S. Ct. 2400 (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 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 [**45}]

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. nl] This reading is_ 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 [*491] general rule was mandated by

the First Amendment:

"But to say that a nondiscnminatory 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 1s a law unto itself or in which

[**46] judges weigh the social importance of all laws

avainst the centrality of all religious beliefs.” Smith. 494

US at 890

nl It as 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 instituuonal 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 US

401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989)

But I do not read Thornburgh v. Abbott as

justifying a remand in the case at bar.

Here, as in Turner vy. Safley. the plainuffs

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 concems, given

the alleged existence of "obvious. casy

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 ...." Jd. at 9/. But our court has already

held, in a Free Exercise Clause 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 wamed against.” Id.

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 I 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.

[**47}

Insofar as my colleagues on the panel have

concluded that the courts can and should discern

TENT SESE BRE

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241 F.3d 475, *: 2001 U.S. App. LEXIS 2560. *.

2001 FED App. 0047P (6th Cir.)

appropriate occasions for waiving Ohio's prison hair

regulation on a case-by-case basis. | respectfully dissent