Brushing up on the Eighth Amendment


Toothpaste for inmates should be a no-brainer.

Prison isn’t supposed to be, and hardly ever is, a cakewalk.

But, according to a Sixth Circuit panel, it shouldn’t cost a prisoner a tooth because he couldn’t buy toothpaste for 337 days.

Jerry Flanory was an inmate at the Newberry Correctional Facility (NCF). Officials there decided that Flanory should work toward obtaining a General Equivalent Degree (GED).

Flanory said that was pointless because he already had one and also had an associate’s degree from a community college. Check my presentence report (PSIR), he said, it’s all right there.

You’ll attend GED classes anyway, was the response. The PSIR isn’t proof that you’ve actually been educated, we need better documentation, they said.

Flanory grieved the decision and signed a waiver to be removed from the program. Fine, said the officials, if you won’t go to school, we’re going to send you to your room.

One consequence of Flanory’s room restriction was a loss of his indigency status. Here’s what happened next:

As a result, he was not able to purchase personal hygiene items, including toothpaste. In response to Flanory’s grievance concerning the situation, Davis, NCF Warden, denied Flanory’s grievance appeal, stating that Flanory would be ineligible for indigent status for a period of 12 months, and that certain hygiene items, including bars of soap, shampoo, tooth swabs, and toilet paper, were available in the housing units. Flanory then requested these items from Potts, NCF Assistant Resident Unit Supervisor, who responded that the items were not available. Toothpaste was among the hygiene items listed by Davis as only available for purchase in the prisoner store.

Flanory v. Bonn, et al.

Eventually, cooler heads prevailed. A new principal took over NCF’s GED program. Flanory spoke with him. The new principle contacted Flanory’s community college and verified his degree. Flanory was taken off room restriction and placed into the work pool. He spent some of his earnings to obtain documentation that he had, in fact, earned a GED at another facility.

When Flanory had regular access to toothpaste, his teeth and gums were in good shape. But 337 days without toothpaste had taken their toll. About two months before he was placed in the work pool, he complained of a toothache. An examination revealed peridontal gum disease. The prison dentist had to pull a tooth.

Flanory filed his Eighth Amendment lawsuit in the U.S. District Court at Marquette. Judge R. Allan Edgar dismissed it for failure to state a claim upon a magistrate judge’s report and recommendation.

The Sixth Circuit reversed. Judge Algenon L. Marbley, sitting by designation, explained:

Dental needs fall into the category “of serious medical needs” because “[d]ental care is one of the most important needs of inmates.” …

The Seventh Circuit has recognized the ability of prisoners to state a cognizable Eighth Amendment claim where they were denied oral hygiene supplies, specifically toothpaste. Board v. Farnham, 394 F.3d 469, 481 (7th Cir. 2005). In Board, the court found that certain prison officials were not entitled to qualified immunity when they denied prisoners toothpaste for a three-and-a-half week period.

Marbley noted that for an Eighth Amendment claim to go
forward, there must be more than a temporary de minimus injury. Flanory’s situation definitely qualified:

Given that the deprivation of toothpaste in this case allegedly spanned 337 days, after which Flanory was diagnosed with peridontal disease of the gums and one tooth was extracted, Flannory has shown both that the deprivation was not temporary and that he suffered physical injury.

Remember, this all started when Flanory, who had a community college degree under his belt, balked when prison officials decided he needed to go back to school to earn a GED that he already had.

But it seems there were a few other folks who really did need to retake of some of their classes — to brush up on the Eighth Amendment.

And that’s the tooth of the matter.

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