Ex-inmate denied toothpaste wins appeal to sue

May 9, 2010

Noting that dental health is of "great importance," an appellate court in Michigan has ruled that a former inmate who was denied toothpaste for nearly a year can sue prison officials for violating his constitutional rights.

Jerry Flanory, 58, of Flint, MI, said he developed periodontal disease and had a tooth extracted in 2005 because he had no access to toothpaste at the Newberry Correctional Facility for a year, according to a complaint he filed in 2008. Flanory, who served five years for assault, said the problem was related to a dispute over his education. He had refused to participate in classes toward a General Educational Development (GED) certificate because he claimed he already had one, along with an associate degree from a community college.

As a result, the prison disciplined Flanory by discontinuing his indigent status, which meant he had to pay for his own toothpaste. But he had no money to buy it, he said, and after going without toothpaste for 337 days, in the fall 2005, Flanory's associate degree was finally confirmed by the prison. By then, he already had periodontal disease and a tooth on the bottom left side was later removed.

Flanory's lawsuit alleges that prison officials violated his Eighth Amendment right to be free from cruel and unusual punishment by denying his access to dental hygiene supplies, including toothpaste, which led to his periodontal disease, the suit stated.

However, the lawsuit was dismissed for "failure to state a claim." Flanory subsequently appealed the ruling to the U.S. Court of Appeals for the Sixth Circuit, which reversed the lower court's decision on May 6.

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

The appeals court found "dental health to be of great importance" and that "denying an inmate toothpaste for 337 days bespeaks an indifference to basic hygiene needs." The panel reinstated his lawsuit against officials at the Newberry prison.

The lawsuit now returns to a federal judge in Marquette.