874 F.2d 69 (2nd Cir. 1989), 717, Fromer v. Scully

Docket Nº:717, Docket 88-7885.
Citation:874 F.2d 69
Party Name:Yevgen FROMER, Plaintiff-Appellee, v. Charles J. SCULLY, Harold J. Smith, Walter Kelly, Everett W. Jones, Thomas A. Coughlin, III, and Hirshel Jaffee, Defendants-Appellants.
Case Date:April 14, 1989
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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874 F.2d 69 (2nd Cir. 1989)

Yevgen FROMER, Plaintiff-Appellee,


Charles J. SCULLY, Harold J. Smith, Walter Kelly, Everett W.

Jones, Thomas A. Coughlin, III, and Hirshel

Jaffee, Defendants-Appellants.

No. 717, Docket 88-7885.

United States Court of Appeals, Second Circuit

April 14, 1989

Argued Feb. 9, 1989.

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Joel W. Sternman, New York City (Jean Simonoff Marx, Rosenman & Colin, New York City, of counsel), for plaintiff-appellee.

Martha O. Shoemaker, Asst. Atty. Gen., State of N.Y., New York City (Robert Abrams, Atty. Gen. of the State of N.Y., Howard L. Zwickel, Chief, Litigation Bureau, State of N.Y., New York City, of counsel), for defendants-appellants.

Before FEINBERG, KEARSE and WINTER, Circuit Judges.

WINTER, Circuit Judge:

This is an appeal from Judge Stewart's decision holding a regulation of the Department of Correctional Services of New York State ("DOCS") concerning the length of inmates' beards unconstitutional as applied to appellee Yevgen Fromer. This matter has been before both the district court and this court before. The district court originally held the regulation in question unconstitutional in Fromer v. Scully, 649 F.Supp. 512 (S.D.N.Y.1986) ("Fromer I "). We affirmed that decision in Fromer v. Scully, 817 F.2d 227 (2d Cir.1987) ("Fromer II "). The Supreme Court, however, vacated that judgment and remanded, Fromer v. Scully, --- U.S. ----, 108 S.Ct. 254, 98 L.Ed.2d 211 (1987), for further consideration in light of O'Lone v. Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), and Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). We in turn remanded. Fromer v. Scully, 837 F.2d 1086 (2d Cir.1987). On remand, the district court reaffirmed its prior decision. Fromer v. Scully, 693 F.Supp. 1536 (S.D.N.Y.1988) ("Fromer III "). We now reverse on the ground that the district court misapplied O'Lone and Turner.


Because the detailed facts are reported in Fromer I and Fromer II, only a brief summary is necessary.

DOCS Directive No. 4914, inter alia, forbids inmates from wearing beards exceeding one inch in length. Until 1976, DOCS rules prohibited inmates from wearing any beard at all, see Phillips v. Coughlin, 586 F.Supp. 1281, 1283 (S.D.N.Y.1984), and Directive No. 4914 resulted from litigation brought in 1976 by two groups of plaintiffs. Monroe v. Bombard, 422 F.Supp. 211 (S.D.N.Y.1976). The first group consisted of Sunni Moslem inmates who challenged the prohibition as an infringement of their right to exercise their religion. The second group consisted of inmates who claimed that medical necessity required them to grow beards and that the prohibition violated the Eighth Amendment. During the pendency of the Monroe litigation, the Commissioner of DOCS promulgated the original version of Directive No. 4914, which provided, inter alia, that after an initial shave and haircut, Sunni Moslems, but not other inmates, could grow beards

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to a length of one inch. Shortly thereafter, the district court held the prior no-beard rule unconstitutional. Monroe, 422 F.Supp. at 215 n. 5, 218. In 1977, Directive No. 4914 was modified to apply to all inmates.

Directive No. 4914 was then challenged by Moslem and other inmates who sought to wear groomed beards in accordance with their religious beliefs or were required to grow beards for medical reasons. Webb v. Dalsheim, 80 Civ. 7141 (S.D.N.Y.) (LBS); Farrad v. Walters, 81 Civ. 2705 (S.D.N.Y.) (LBS). Those suits resulted in a settlement approved by the district court. That settlement formed the basis for the final version of Directive No. 4914 that is challenged here, which allows all inmates to maintain a one-inch beard following an initial clean shave identification photograph.

Appellee Fromer's challenge to Directive No. 4914 is founded on his claimed right of the free exercise of the Jewish religion. Raised in a small Jewish community in the Ukraine, Soviet Union, Fromer has, for most of his life, been an Orthodox Jew. After emigrating to the United States, he became involved in the Lubavitch Hasidic movement. He lapsed in his observance of Jewish laws in 1980, however, at which time he shaved off his beard. In 1983, he was convicted of selling cocaine. During his subsequent imprisonment, he decided to return to the observance of Jewish laws.

Fromer understood Jewish law to require him neither to trim nor to shave his beard, a belief that brought him afoul of Directive No. 4914. A series of disciplinary confrontations with DOCS ensued, and in August 1984 Fromer filed a pro se complaint alleging generally the deprivation of his religious freedom. After the appointment of counsel, he filed an amended complaint which, inter alia, specifically challenged Directive No. 4914.

A six-day bench trial followed, in which the district court heard testimony from a DOCS witness that the one-inch limit on beards was necessitated by a variety of government interests. First, the DOCS witness testified that beards longer than one inch would cause prison officials difficulty in identifying inmates. Fromer I, 649 F.Supp. at 519-20. Second, he stated that contraband of various types could be hidden in beards longer than one-inch. 649 F.Supp. at 520-21. Third, he testified that the one-inch regulation was "a neutral, consistent rule that can be understood easily by both staff and inmates," and that alternative regulations were likely to breed resentment among inmates as well as confrontations between inmates and guards. Id. at 521. Finally, he testified that untrimmed beards presented safety and hygiene hazards when worn by inmates assigned to food service or to the operation of machinery. Id. Fromer offered expert testimony tending to disprove the existence of the governmental interests claimed by DOCS.

In evaluating Fromer's claims, the district court applied the then-prevailing rule of this circuit enunciated in Wali v. Coughlin, 754 F.2d 1015 (2d Cir.1985). The Wali decision had established three different standards to be applied in specified circumstances. Where the right asserted was inherently inconsistent with established penological objectives, Wali required nearly absolute judicial deference to the judgment of corrections officials. Where the activity sought to be engaged in was presumptively dangerous, Wali called for broad, though not categorical, deference. Finally, where the activity sought to be engaged in was not presumptively dangerous, Wali required prison officials to show "that a particular restriction is necessary to further an important governmental interest, and that the limitations on freedoms occasioned by the restriction are no greater than necessary to effectuate the governmental objective involved." Id. at 1033.


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