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Ohio prisoner can sue state over grooming policy

By The Associated Press

12.11.01

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WASHINGTON — The Supreme Court refused yesterday to intervene in a dispute over prison grooming rules in Ohio, allowing the state to be sued for cutting the beard of a Jewish inmate.

Ohio leaders argued that the case could provoke thousands of lawsuits.

In prisons around the country inmates are forced to follow grooming rules intended to control contraband and gang activity. Courts have generally sided with authorities in rules fights.

But in this case, Wilkinson v. Flagner, an appeals court said Hbrandon Lee Flagner, a Hasidic Jew, had a legitimate case that he was wronged by officials who twice cut his beard and sideburns.

Justices refused to take Ohio's appeal in the case that pits public safety against an individual's freedom of religion.

Flagner claims he is not a security risk and has a First Amendment right to follow his religious beliefs and traditions, including letting his facial hair grow.

Twenty states joined Ohio in urging the Supreme Court to consider the case. Attorneys for those states said if exemptions are allowed, "the ability of prison officials to maintain security will inevitably falter, thereby placing the safety and welfare of prison staff, inmates, and the general public at risk."

Ohio requires inmates to have neatly groomed mustaches, beards and sideburns, cut within a half inch of the skin to keep inmates from hiding weapons or drugs.

Officials put Flagner, a convicted murderer, in isolation for refusing to follow the rule, then eventually cut his hair.

Although a divided three-judge panel of the 6th U.S. Circuit Court of Appeals sided with Flagner in ordering a trial, the judges said he could not try to collect damages from prison officials who have immunity.

A trial challenging the rule has been on hold, pending the high court's decision.

Flagner is incarcerated in the Ross Correctional Institution near Chillicothe. He was sent to prison in 1986 after being convicted in Cuyahoga County of aggravated murder and kidnapping.

Flagner claims to have molested hundreds of girls. He is serving a life sentence in the 1980 disappearance of an 8-year-old girl who was last seen at a convenience store, wearing a T-shirt that read, "Let's face it, I'm cute." Flagner confessed to killing her, but her body was never found.

He became a Hasidic Jew in 1991 while in prison and was at times exempted from the prison's grooming regulations. He said his beard and sideburns were cut against his will in 1996 and 1998.

Ohio Attorney General Betty Montgomery said if Flagner wins this case, other inmates will file challenges of rules dealing with things like library access, visiting procedures, drug testing, job assignments and housing.

"That judgment carries significant real-world adverse consequences for prison administrators," Montgomery told the justices in court filings. "The reactive-not-proactive approach to rule-making and rule-enforcement in the prison context is both dangerous and unworkable."

Yeshiva University law professor Daniel Pollack said prison managers have to balance security with inmates' religious practices.

"When push comes to shove, they're much more concerned about safety issues than what they might consider spiritual niceties," Pollack said.

In 1979, the Supreme Court upheld federal prison restrictions on books and packages for inmates, finding that prison officials must ensure safety. Ohio argues that this case is very similar.

There have been multiple recent court fights over prison restrictions.

In this case, the Cincinnati-based 6th Circuit said that an essential facet of Flagner's religion involves his facial hair and "enforcement of the grooming regulation would require the plaintiff to violate this very tenant."

Previous

Federal appeals panel: Jewish inmate can sue Ohio over forced shaving
Judges say prisoner presented enough evidence about officials’ on-again, off-again attitude toward cutting his beard that case should go to trial.  02.26.01

Related

2001-2002 Supreme Court term coverage
Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.  11.01.01

Federal appeals panel upholds Texas inmate grooming policy
Muslim prisoner had argued that rule regulating beard length violated his free-exercise rights.  10.24.00

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