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Fromer v. Scully

decided: April 24, 1987.

YEVGEN FROMER, APPELLEE,
v.
CHARLES J. SCULLY, HAROLD J. SMITH, WALTER KELLY, EVERETT W. JONES, THOMAS J. COUGHLIN, AND HIRSHEL JAFFEE, APPELLANTS



Appeal from a judgment entered in the Southern District of New York, Charles E. Stewart, Jr., District Judge, 649 F. Supp. 512 (S.D.N.Y. 1986), declaring a beard length directive unconstitutional as applied to an Orthodox Jewish state prison inmate and permanently enjoining state prison officials from enforcing the directive against the inmate or punishing him for his noncompliance.

Feinberg, Chief Judge, Timbers and Altimari, Circuit Judges.

Author: Timbers

TIMBERS, Circuit Judge:

Appellants Charles J. Scully and others (collectively "appellants") appeal from a judgment entered January 29, 1987 in the Southern District of New York, Charles E. Stewart, Jr., District Judge, Fromer v. Scully, 649 F. Supp. 512, which granted appellee Yevgen Fromer ("appellee") declaratory and injunctive relief after a bench trial on his claim under 42 U.S.C. § 1983 (1982).

Appellee is an inmate in the custody of the New York Department of Correctional Services ("the Department"). In his amended complaint in the instant § 1983 action, appellee challenged among other things the constitutionality as applied to him of a Department Directive ("the Directive") which requires inmates to shave or trim their beards to a length of no more than one inch. Appellee claimed that his religious beliefs as an Orthodox Jew prohibit him from shaving, trimming, or cutting his facial hair and therefore that application of the Directive to him violated his right to free exercise of religion under the First and Fourteenth Amendments to the United States Constitution.

The district court, after finding that appellee held a sincere religious belief, declared the Directive unconstitutional as applied to appellee and permanently enjoined appellants from enforcing it against him or punishing him for his noncompliance.

On appeal, appellants claim, first, that the district court applied the wrong standard in evaluating the constitutionality of the Directive; and, second, that the Directive is constitutional even when evaluated under the standard applied by the district court. Appellants do not challenge the district court's finding that appellee's religious belief regarding his beard was sincere.

We hold, first, that the district court applied the correct standard; and, second, that the court did not err in its application of that standard.

We affirm, and we do so substantially for the reasons set forth in Judge Stewart's excellent opinion.

I.

Judge Stewart's opinion contains a comprehensive recital of the facts. Fromer, supra, 649 F. Supp. at 513-17. We assume familiarity with that opinion. We summarize here certain facts which warrant emphasis and those additional facts believed necessary to an understanding of the issues raised on appeal.

Appellee grew up in a small Orthodox Jewish Community in the Ukraine, Soviet Union. In 1975, after moving to Brooklyn, New York, he became involved in the Lubavitch Hasidic movement. He lived and studied at a Lubavitch yeshiva until late 1977. In 1980, his observance of Jewish laws began to deteriorate. In June 1982, he was arrested on a charge of selling cocaine. He has been in the custody of the Department since his conviction on the narcotics charge in March 1983. Soon after his incarceration began, he became convinced that his criminal activity was attributable to his failure to observe Jewish laws.

While incarcerated at the Attica Correctional Facility, appellee commenced the instant action pro se on August 8, 1984. His present counsel was appointed in November 1984. After his transfer to the Great Meadow Correctional Facility in January, 1985, he was disciplined twice for disobeying orders to trim his beard.

Appellee filed an amended complaint in the instant action on February 3, 1985. The amended complaint names as defendants appellant Thomas J. Coughlin, who is the commissioner of the Department, and appellant Hirshel Jaffee, who is a Jewish Chaplain at one of the prisons at which appellee has been incarcerated. Each of the other defendants -- appellants in this Court -- is a Superintendent of a prison at which appellee has been or is incarcerated.

The amended complaint contains nine claims, each alleging that appellants denied appellee certain constitutional rights in violation of § 1983. The Ninth Claim -- the only one relevant to the instant appeal -- alleges that the Directive is unconstitutional as applied to appellee to the extent that it prohibits inmates from growing facial hair in excess of one inch.

On April 8, 1985, appellants filed a motion pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to ...


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