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Ex-Inmate Can Sue for Cruel and Unusual Punishment Over No Toothpaste

Jerry Flanory

Jerry Flanory (AP2007)

DETROIT -- Prison can be tough on the gums.

A former Michigan inmate who claims he was denied toothpaste for nearly a year can sue prison officials, tooth his constitutional right against cruel and unusual punishment, a federal appeals court said.

Jerry Flanory, of Flint, says he developed gum disease and had a tooth removed in 2006 as a result of no toothpaste. The appeals court reinstated his lawsuit Thursday against officials at the Newberry prison in Michigan's Upper Peninsula.

"This court has found dental health to be of great importance," a three-judge panel said, citing a past decision from the 6th U.S. Circuit Court of Appeals.

Flanory, 58, said the problem was related to a dispute over his education. He refused to participate in classes toward a GED, or general equivalent degree, because he already had one. In fact, he also had an associate degree from a community college.

Flanory was disciplined by losing his indigent status at Newberry prison, which meant he had to pay for his own toothpaste. He said he couldn't afford it.

Nearly a year later, in fall 2005, Flanory's associate degree was finally confirmed by the prison. By then, he already had gum disease, and a tooth on the bottom left side was later removed.

The lack of "toothpaste for 337 days and resulting health problems amount to more than a mere inconvenience or a harmless deprivation of hygiene products," the appeals court said.

Flanory, who is acting as his own lawyer and is seeking at least $350,000 in damages, has been on parole since December after serving five years in prison for assault. His home phone was not answered Friday.

Michigan prisons spokesman John Cordell said he was not familiar with the case "but it sounds like an anomaly." The lawsuit now returns to a federal judge in Marquette, who dismissed it as frivolous in 2009.

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