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FROMER v. SCULLY

November 25, 1986

YEVGEN FROMER, Plaintiff,
v.
CHARLES J. SCULLY, HAROLD J. SMITH, WALTER KELLY, EVERETT W. JONES, THOMAS A COUGHLIN III, and HIRSCHEL JAFFE, Defendants



The opinion of the court was delivered by: STEWART

STEWART, District Judge:

Plaintiff Yevgen Fromer, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), challenges the constitutionality of DOCS Directive #4914 to the extent that it requires him to shave or trim his beard to a length of no more than one inch. *fn1" Fromer, an Orthodox Jew, claims that his religious beliefs prohibit him from shaving or trimming his facial hair. During the six days of trial in this action, we heard from numerous witnesses regarding the sincerity of Fromer's religious beliefs and the concerns of DOCS that underlie the beard regulation. We now conclude that Fromer is entitled to the injunctive and declaratory relief that he seeks. Our findings of fact and conclusions of law are set forth below.

SINCERITY OF RELIGIOUS BELIEF

 Directive #4914 establishes basic grooming standards for inmates in the New York state prison system. Pl. Ex. 1. The directive provides that upon being committed to the custody of DOCS, inmates must get a haircut and shave "for reasons of health and sanitation as well as to permit the taking of the initial identification photograph." Thereafter, however, "[a]ll inmates may grow a beard and/or mustache not to exceed one (1) inch in length."

 In order to establish his first amendment interest in challenging Directive #4914, Fromer, as an initial matter, must demonstrate that his beliefs are sincerely held and "are, in his own scheme of things, religious." United States v. Seeger, 380 U.S. 163, 185, 13 L. Ed. 2d 733, 85 S. Ct. 850 (1965); see also Furqan v. Georgia State Board of Offender Rehabilitation, 554 F. Supp. 873, 876 (N.D. Ga. 1982). In evaluating the religious nature of Fromer's beliefs, this court must not employ an objective, content-based approach to defining religious belief but rather must examine the plaintiff's "inward attitudes towards a particular belief system." Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984).

 Plaintiff asserts that his refusal to trim his beard is based on the Torah, specifically, on a passage in Leviticus, one of the five books of Moses, which states that one should not mar the corners of the beard. Tr. 104. Fromer testified that he views the wearing of an untrimmed beard as "the main bulwark that would be used against evil," Tr. 103, in that the beard is a physical, unalterable, public symbol of observance of Jewish law "to the highest degree." Tr. 103-04, 234-35. Fromer further stated that he wants to leave his beard untrimmed to prevent myself from any further breaking the law, civil law or Jewish law or any law, and stay with the hundred percent way of Judaism." Tr. 114.

 We find that Fromer has met his burden of showing that his refusal to obey Directive #4914 is grounded in a sincere religious belief that trimming the beard violates Jewish law. Fromer's refusal to trim his beard is consistent with his religious background and training and is rooted in a body of Jewish law. Furthermore, we find Fromer's testimony regarding his religious beliefs to be credible and find his conduct since he entered prison to be consistent with his professed beliefs.

 Fromer was born in 1959 in a town in the Ukraine, Soviet Union, where he lived until the age of fifteen. Tr. 81-82. As Orthodox Jews, Fromer's family members observed "all the practices. . . most orthodox Jews do" in the United States, including, for example, keeping Passover strictly. Tr. 83. Members of Fromer's family were leaders in the town's small Jewish community, and weekly religious services were held in Fromer's house. Fromer himself as a child learned how to read Hebrew and studied the Bible with various teachers. At age thirteen he had a bar mitzvah and began to observe the religious practices imposed upon adult men. Tr. 83-88.

 While he was in the Soviet Union, Fromer did not receive religious instruction regarding the maintenance of a beard. On cross-examination, Fromer admitted that before he left the Ukraine, the general practice of his male relatives was to either trim or shave their beards. Tr. 164. However, Fromer also testified that he was told that the rabbi grandfather after whom he was named had an untrimmed beard all his life. Tr. 166. Also, one of the two shoctim, or religious officials, in his community had an untrimmed beard. Tr. 165. Fromer resolved in his youth that "one day when I will be able to I will have a beard." Tr. 89.

 In 1975, Fromer and his mother arrived in Brooklyn. Tr. 90. Shortly after his arrival, Fromer enrolled in two yeshivas associated with the Lubavitch Hasidic movement. He moved into a Lubavitch dormitory, where he lived untillate 1977. Tr. 90-91. During this period he did not discuss with any of his teachers or relatives whether trimming the beard was permitted. Tr. 174. Fromer knew that at least some of his uncles trimmed their beards. However, he observed that all the teachers at his yeshivas had long untrimmed beards and that none of the boys who lived in his dormitory trimmed their facial hair. Tr. 91-92, 94, 96-97, 224.

 Around late 1977, Fromer became a bus driver for schools operated by the Lubavitch movement. Fromer continued his religious studies with two men, who told him that Orthodox Jews were forbidden to disturb their beards. Tr. 94. In early 1978, Fromer went to Los Angeles to assist a rabbi in starting a Lubavitch camp for Russian immigrants. Tr. 96. Fromer returned to Brooklyn in late 1978 and started a transportation business that primarily serviced yeshivas. Tr. 97.

 During the years when Fromer was enrolled in the yeshivas and was in Los Angeles, he maintained an untrimmed beard. Tr. 97. However, around 1980, he experienced a business setback and decided that if he became more assimilated into the society around him, he would be able to gain more customers. Accordingly, he began trimming his beard and then shaved it off entirely. In addition, he grew his hair longer, shortened his prayers, and wore his yarmulke sporadically. Tr. 98-99. During this period, he engaged in the criminal activity that led to his incarceration.

 Fromer testified that in early 1982 he decided that he wanted to resume Jewish religious practices. He began to grow his beard again and vowed that he would completely return to Judaism after his financial problems were over. Tr. 100. At the time of his arrest on a charge of selling cocaine in June 1982, he was bearded. Tr. 102.

 During the eight months Fromer spent in the Brooklyn House of Detention prior to his sentencing, he did not trim his beard. Fromer testified that he came to believe that he had ended up in prison because he had failed to abide by Jewish law. Accordingly, he began to study Judaism and observe religious practices that he had previously abandoned. Tr. 103-04.

 Fromer entered the custody of DOCS in March 1983. Upon his admission to Downstate Correctional Facility, he was told that he was required to remove his beard. Fromer testified that he requested that an electric shaver rather than a razor be used if he had to be shaved, Tr. 105-07, because he believed that using an electric shaver was less of a violation of Jewish law than using a razor. See Tr. 180. As a result of his request, Fromer stated, he was handcuffed and prodded with a stick by one correction officer while another shaved him with a razor. Tr. 107.

 After this initial shave, Fromer let his beard grow undisturbed until an officer at Green Haven Correctional Facility, where Fromer had been transferred, told him to bring his beard into compliance with the one-inch regulation. Fromer then requested that his mother send him an electric shaver, which he used to shave the upper part of his cheeks and neck. However, Fromer did not shave his jaw or near his ears in order to comply with the biblical prohibition on marring "the five corners of the beard." Tr. 109-10.

 In the summer of 1983, Fromer was transferred to a different cellblock within Green Haven. At that time, Fromer stopped shaving and trimming his beard completely, both because no correction officer pressured him and because his conviction that his beard should not be trimmed became strengthened. Tr. 113-14. Fromer had intensified his study of Judaism and had attended a sermon by a Lubavitcher regarding the reasons why Jews have untrimmed beards. Tr. 220, 226. In addition, Fromer was influenced by the fact that Sheldon Silver, an attorney and rabbi with whom Fromer met to discuss religious practices at Green Haven, had a long untrimmed beard. Tr. 226-28.

 In April 1984, Fromer was transferred to Attica Correctional Facility, where he was told to trim his beard to one inch. Tr. 121. Fromer wrote to Superintendent Harold J. Smith to protest that the application of Directive #4914 to him violated his first amendment rights. Pl. Ex. 7A. Fromer stated that as an Orthodox Jew, he considered his beard part of his "religious dress." He added that he did "not claim exemption in the cutting of my beard out of personal appearance objectives, but rather out of religious tenets." After Smith denied Fromer an exemption, Fromer filed a grievance with the Attica inmate grievance committee. Pl. Ex. 7B. ...


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