           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Toms, et al. v. Taft, et al.               No. 01-4035
        ELECTRONIC CITATION: 2003 FED App. 0263P (6th Cir.)
                    File Name: 03a0263p.06                                                    _________________
                                                                                                   COUNSEL
UNITED STATES COURT OF APPEALS
                                                                          ARGUED: Arnold S. White, WHITE & FISH, Columbus,
                  FOR THE SIXTH CIRCUIT                                   Ohio, for Appellants. Todd R. Marti, OFFICE OF THE
                    _________________                                     ATTORNEY GENERAL, CORRECTIONS LITIGATION
                                                                          SECTION, Columbus, Ohio, for Appellees. ON BRIEF:
 LAURA TOMS and IRA                X                                      Arnold S. White, WHITE & FISH, Columbus, Ohio, for
 CHAIFFETZ,                         -                                     Appellants. Todd R. Marti, OFFICE OF THE ATTORNEY
                                                                          GENERAL, CORRECTIONS LITIGATION SECTION,
          Plaintiffs-Appellants, -                                        Columbus, Ohio, Linda L. Woeber, Ralph E. Burnham,
                                    -  No. 01-4035
                                    -                                     MONTGOMERY, RENNIE & JONSON, Cincinnati, Ohio,
            v.                       >                                    Jeffrey Lynn Glasgow, Tracie M. Boyd, FRANKLIN
                                    ,                                     COUNTY PROSECUTING ATTORNEY’S OFFICE,
                                    -                                     Columbus, Ohio, for Appellees.
 BOB TAFT ; REGINALD J.             -
 WILKINSON; ANTHONY J.              -                                        GIBBONS, J., delivered the opinion of the court, in which
 BRIGANO ; LAWRENCE                 -                                     POLSTER, D. J., joined. GILMAN, J. (pp. 19-26), delivered
 BELSKIS; MARK CLARK,               -                                     a separate opinion concurring in part and dissenting in part.
         Defendants-Appellees. -
                                    -                                                         _________________
                                   N
       Appeal from the United States District Court                                               OPINION
      for the Southern District of Ohio at Columbus.                                          _________________
  No. 00-00190—Edmund A. Sargus, Jr., District Judge.
                                                                             JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-
                   Argued: February 5, 2003                               appellants Laura Toms and Ira Chaiffetz, a prisoner, sought
                                                                          to marry, but were unable to obtain a marriage license
               Decided and Filed: July 31, 2003                           because Chaiffetz’s incarceration made it impossible for him
                                                                          to comply with an Ohio statute requiring both applicants for
        Before: GILMAN and GIBBONS, Circuit Judges;                       a marriage license to appear personally before the probate
                  POLSTER, District Judge.*                               court. Toms and Chaiffetz sued various state officials under
                                                                          42 U.S.C. § 1983, alleging a violation of their constitutional
                                                                          right to marry and seeking injunctive relief, monetary
                                                                          damages, and attorney’s fees. With the district court’s
                                                                          supervision, the parties reached a settlement with respect to
                                                                          the claims for injunctive relief, and Toms and Chaiffetz
    *
     The Ho norable Dan Aaron Polster, United States District Judge for   married. After the settlement was obtained, the district court
the Northern District of O hio, sitting by designation.

                                  1
No. 01-4035                        Toms, et al. v. Taft, et al.       3    4    Toms, et al. v. Taft, et al.                No. 01-4035

entered an order stating that plaintiffs’ request for an                   Court, however, indicated that he was willing to assist
injunction was moot. The district court also granted summary               plaintiffs by appointing either an employee of WCI
judgment in favor of defendants on the ground that they were               designated by the warden, or an employee of the Warren
protected by qualified immunity and refused to award                       County Probate Court, to serve as a deputy clerk of the
attorney’s fees because plaintiffs were not prevailing parties             Franklin County Probate Court for the purpose of issuing the
within the meaning of 42 U.S.C. § 1988. Plaintiffs appeal on               marriage license.       Belskis later memorialized these
four grounds, arguing that the district court erred by                     possibilities in an order issued December 30, 1999.
(1) granting summary judgment before discovery had
commenced; (2) finding that the defendants were entitled to                   Toms wrote to Anthony Brigano, warden of WCI, on
qualified immunity; (3) refusing to award monetary damages                 July 12, 1999, asking him to provide assistance in appointing
without considering evidence on the issue; and (4) refusing to             someone to act as a deputy clerk and suggesting that
award attorney’s fees. For the reasons set forth below, we                 Chaiffetz’s attorney could serve in that capacity if Brigano
affirm the judgment of the district court on all four issues.              preferred not to designate a WCI employee. Brigano declined
                                                                           this request in a letter, stating, “I do not see myself or the
                                   I.                                      institution being involved in this process,” other than
                                                                           allowing a brief marriage ceremony during normal visiting
  Ira Chaiffetz and Laura Toms (now Laura Chaiffetz)                       hours if the couple obtained a marriage license.
became engaged while Chaiffetz was incarcerated at the
Warren Correctional Institution (WCI) in Warren County,                       Toms and Chaiffetz obtained counsel, who wrote to
Ohio. Like most states, Ohio requires prospective spouses to               Brigano on September 20, 1999, again requesting that he
obtain marriage licenses. In order to do so, “[e]ach of the                designate an employee of WCI to serve as a deputy clerk to
persons seeking a marriage license shall personally appear in              issue the marriage license. Brigano denied this request, citing
the probate court within the county where either resides” to               a policy of the Ohio Department of Rehabilitation and
apply for a license. Ohio Rev. Code Ann. § 3101.05(A). The                 Correction (ODRC) that specifies that “all preparatory
statute provides for a waiver of the personal appearance                   obligations, such as securing a marriage license, are the sole
requirement in cases involving “illness or other physical                  responsibility of the couple to wed.” Plaintiffs received a
disability,” but there is no provision for a waiver due to                 similar response from Reginald Wilkinson, the director of the
incarceration.                                                             ODRC, who wrote, “It is not the responsibility of ODRC to
                                                                           obtain marriage licenses for the inmates in its custody . . . .
  Plaintiffs asked the probate courts of both Warren County                The issuance of a marriage license is a function assigned by
and Franklin County, where Toms resides and where                          statute to the probate courts in Ohio.” Wilkinson also quoted
Chaiffetz resided before his incarceration, to waive the                   and attached the policy stating that securing a marriage
personal appearance requirement, but both courts declined.1                license is the couple’s responsibility.
Judge Lawrence Belskis of the Franklin County Probate
                                                                             Plaintiffs also sought to avail themselves of Judge Belskis’
                                                                           second option, a deputy clerk from the Warren County
    1
      Pro bate courts in other Ohio counties apparently interpret the      Probate Court who would travel to the correctional institution.
personal appearance requirement more liberally, and at least 129 inmates
in the Ohio Department of Rehabilitation and Co rrection’s custody were
married in 1998 and 1999.
No. 01-4035                      Toms, et al. v. Taft, et al.      5    6    Toms, et al. v. Taft, et al.                 No. 01-4035

They wrote to Judge Mark Clark of that court.2 Clark                    minds.” Plaintiffs accepted the outcome and asked that their
declined to designate a clerk for that purpose, stating that            request for injunctive relief be withdrawn as moot. The same
“due to the numerous requests this Court receives and the               day, March 31, 2000, the district court responded to this
hardship it places on our clerks, it is our policy that we do not       request by entering an order stating that “[t]he parties to this
send employees to the correctional facilities located in our            matter have resolved their differences. The pending Motion
County.” Finally, plaintiffs sought assistance from Ohio                for Preliminary and Permanent Injunction is therefore moot.”
Governor Bob Taft, in a letter dated October 29, 1999.                  Approximately two weeks later, plaintiffs were married.
Governor Taft forwarded the request to the ODRC, and
administrative assistant Stacha Doty responded that “Warden                The issues of damages and attorney’s fees were not
Brigano is correct in not deputizing an employee to serve the           resolved at the conference. After the conference, all
marriage license on the inmate. That is not a part of the               defendants moved for summary judgment. Plaintiffs opposed
mission [of the ODRC].” Doty also wrote that:                           summary judgment and sought discovery. In an order dated
                                                                        January 4, 2001, the district court denied plaintiffs’ motion
  No one is denying you the right to get married. You are               for discovery because the defendants’ arguments “were based
  responsible to obtain a marriage license. I am aware that             on matters of law, namely whether the individual defendants
  Franklin County will not issue a marriage license without             are entitled to immunity.” In the same order, the court
  both parties present. It is the policy of the [ODRC] not              granted the defendants’ motions for summary judgment,
  to transport inmates for the purpose of gaining a marriage            finding that they were entitled to qualified immunity because,
  license.                                                              even if the plaintiffs’ rights to marry and to access to the
                                                                        courts were violated, neither right was “so clearly established
  On February 18, 2000, Toms and Chaiffetz filed suit under             that a reasonable official would understand that his actions
42 U.S.C. § 1983 against Taft, Brigano, Wilkinson, Belskis,             violate[d] that right.”
and Clark, claiming violations of their right to marry and right
to access to the courts and seeking injunctive and monetary                The district court’s January 4, 2001, order did not address
relief.                                                                 the issue of attorney’s fees. The parties therefore briefed the
                                                                        issue. The district court denied plaintiffs’ request for
  The district court scheduled a settlement conference for              attorney’s fees, finding that plaintiffs were not prevailing
March 31, 2000. At the conference, defendants agreed that               parties under 42 U.S.C. § 1988 (as explained by the Supreme
the Franklin County Probate Court would deputize an                     Court in Buckhannon Board and Care Home, Inc. v. West
employee of the “central office” of the ODRC (specifically,             Virginia Department of Health and Human Resources, 532
an Assistant Attorney General) as a clerk to issue the                  U.S. 598 (2001)). Plaintiffs timely appealed, contending that
marriage license to Chaiffetz at WCI.                                   the district court erred by (1) granting summary judgment
                                                                        before discovery had begun, (2) finding that defendants were
  The district court then recited this arrangement into the             protected by qualified immunity, (3) denying monetary
record to make sure the parties had reached “a meeting of the           damages without considering evidence on the issue, and (4)
                                                                        denying plaintiffs’ request for attorney’s fees.

    2
    Judge Clark was retired at that time, but no other judge had been
named to replace him.
No. 01-4035                     Toms, et al. v. Taft, et al.     7    8     Toms, et al. v. Taft, et al.                 No. 01-4035

                                II.                                   B. Qualified immunity
A. Grant of summary judgment before discovery                           The Chaiffetzes’ second argument is that the district court
                                                                      erred in finding that the defendants were protected by
   First, the Chaiffetzes contend that the district court erred by    qualified immunity. Because this is a question of law, it is
granting summary judgment before they had conducted                   reviewed de novo. Bell, 308 F.3d at 601. Moreover, this
discovery. We review for abuse of discretion. See Emmons              court examines de novo all appeals arguing that summary
v. McLaughlin, 874 F.2d 351, 356 (6th Cir. 1989).                     judgment was improperly granted. Summar v. Bennett, 157
                                                                      F.3d 1054, 1057 (6th Cir. 1998).
   In this case, the district court did not abuse its discretion by
granting summary judgment before discovery had                           Generally, government officials performing discretionary
commenced. The basis for the district court’s decision was its        functions are shielded from liability for civil damages unless
finding that defendants were protected by qualified immunity,         their conduct violates clearly established statutory or
a purely legal question. Bell v. Johnson, 308 F.3d 594, 601           constitutional rights of which a reasonable person would have
(6th Cir. 2002) (“qualified immunity is a question of law”).          known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In
To resolve that issue, the only question was whether                  order for a right to be “clearly established,” it must be
plaintiffs’ rights were “clearly established,” thus putting           established in a particularized, relevant sense: the “contours
defendants on notice that they may have been violating those          of the right must be sufficiently clear that a reasonable official
rights. Although the Chaiffetzes cite various areas they              would understand that what he is doing violates that right.”
would have investigated through discovery, such as the state’s        Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[I]n the
treatment of other prisoners who wished to marry, this                light of pre-existing law the unlawfulness must be apparent.”
information does not bear on the dispositive question of              Id. Government officials are shielded from civil damages
whether the prisoner’s right to marry was “clearly                    liability “as long as their actions could reasonably have been
established.” Moreover, it is proper to decide the qualified          thought consistent with the rights they are alleged to have
immunity issue at the threshold of each case, before                  violated.” Id. at 638. Thus, officials are “entitled to qualified
burdening potentially immune defendants with discovery.               immunity [when] their decision was reasonable, even if
Where the defendant seeks qualified immunity and the                  mistaken.” Hunter v. Bryant, 502 U.S. 224, 229 (1991).
defense is dispositive, a ruling on that issue should be made         Qualified immunity “provides ample protection to all but the
early in the proceedings so that the costs and expenses of trial      plainly incompetent or those who knowingly violate the law.”
are avoided. Saucier v. Katz, 533 U.S. 194, 200 (2001);               Malley v. Briggs, 475 U.S. 335, 341 (1986).
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)
(“[W]e repeatedly have stressed the importance of resolving              This court evaluates qualified immunity claims using a
immunity questions at the earliest possible stage in                  three-part inquiry. First, we determine whether the facts
litigation.”); Criss v. City of Kent, 867 F.2d 259, 261 (6th Cir.     viewed in the light most favorable to the plaintiffs show that
1988) (“[D]iscovery in litigation against government officials        a constitutional violation has occurred. Feathers v. Aey, 319
should be halted until the threshold question of immunity is          F.3d 843, 848 (6th Cir. 2003). Second, we determine whether
resolved.”). Thus, the district court did not abuse its               the right that was violated was a clearly established right of
discretion in granting summary judgment on the basis of               which a reasonable person would have known. Id. Finally,
qualified immunity before allowing discovery.                         we determine whether the plaintiff has alleged sufficient facts,
No. 01-4035                     Toms, et al. v. Taft, et al.    9    10       Toms, et al. v. Taft, et al.                       No. 01-4035

and supported the allegations by sufficient evidence, to             inmate marriage licenses.3 Thus, we cannot determine
indicate that what the official allegedly did was objectively        whether the ODRC policy violated plaintiffs’ rights. Rather,
unreasonable in light of the clearly established constitutional      we note that the ODRC policy, although it does not
rights. Id.; Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.          affirmatively prohibit the exercise of the right to marry, is a
1999).                                                               regulation that must be justified under Turner’s test.
   It is undisputed that the right to marry is protected by the         The second part of the qualified immunity inquiry asks
Due Process Clause of the Fourteenth Amendment. Zablocki             whether the constitutional right was clearly established such
v. Redhail, 434 U.S. 374, 383 (1987). “The freedom to marry          that reasonable officials would know that their conduct
has long been recognized as one of the vital personal rights         violated the right. Plaintiffs have the burden of showing that
essential to the orderly pursuit of happiness by free men.”          a right is clearly established. Pray v. City of Sandusky, 49
Loving v. Virginia, 388 U.S. 1, 12 (1967) (quoting Skinner v.        F.3d 1154, 1158 (6th Cir. 1995). The right must be clearly
Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)). It           established in a particularized sense, as discussed above.
is also undisputed that the right to marry extends to prisoners.     However, as the Supreme Court has explained, “officials can
Turner v. Safley, 482 U.S. 78, 95 (1987). However, the right         still be on notice that their conduct violates established law
is not unfettered. Turner holds that a prisoner’s right to marry     even in novel factual circumstances.” Hope v. Pelzer, 526
may be restricted where the restriction is reasonably related        U.S. 730, 741 (2002). “Although earlier cases involving
to a legitimate penological interest. Id. at 96-97. Applying         ‘fundamentally similar’ facts can provide especially strong
that test, the Turner Court held unconstitutional a Missouri         support for a conclusion that the law is clearly established,
regulation that prohibited prisoners from marrying unless the        they are not necessary to such a finding.” Id. In determining
superintendent found compelling reasons for allowing the             whether a right is clearly established, “we look first to the
marriage. Id. at 97-98. The Court noted that “legitimate             decisions of the Supreme Court, then to the decisions of this
security concerns” may require placing restrictions on an            court and other courts within our circuit, and finally to
inmate’s right to marry, id. at 97, and that the right “is subject   decisions of other circuits.” Bell v. Johnson, 308 F.3d 594,
to substantial restrictions as a result of incarceration,” id. at    602 (6th Cir. 2002). The district court, analyzing relevant
95. Therefore, Turner recognizes a prisoner’s right to marry,        law, determined that a prisoner’s “right to marry in this
but also recognizes that the right can be curtailed for              context was not so clearly defined that a reasonable person
penological reasons. In short, “when a prison regulation             would have known that it was being violated by the
impinges on inmates’ constitutional rights, the regulation is        defendant[s’] actions.”
valid if it is reasonably related to legitimate penological
interests.” Id. at 89.
                                                                          3
  We hold that refusal to aid a prisoner in exercising his right            The dissent would fault Brigano for failing thus far to articulate a
                                                                     legitimate penological interest justifying the ODR C policy. Judge Gilman
to marry, where such refusal completely frustrates the right,        states, “Brigano has not asserted before the district court or on appeal that
can amount to a “prison regulation” under Turner. Therefore,         his refusal to allow anyone at W CI to be deputized for matrimonial
such refusals must be reasonably related to legitimate               purposes was related to a legitimate penological interest.” (Diss. Op. at
penological interests. In this case, summary judgment was            3.) It is premature at this point, however, to extract any meaning from
granted before state defendants were required to articulate a        defendants’ failure to assert a legitimate penological interest. The
                                                                     litigation simply has not proceeded to the stage at which defendants are
legitimate penological interest to justify their policy regarding    required to do so .
No. 01-4035                    Toms, et al. v. Taft, et al.   11    12       Toms, et al. v. Taft, et al.                     No. 01-4035

   The Chaiffetzes argue that, in light of Turner, a prisoner’s     although Chaiffetz had the constitutional right to marry, there
right to marry was sufficiently well-established that               was no clearly established right to enlist the affirmative
defendants should have known they were required to take             assistance of prison and judicial officials in attempting to
affirmative steps to assist the plaintiffs in obtaining a           exercise that right. When a prisoner is incarcerated, a “large
marriage license. They also cite Carter v. Dutton, No. 93-          number of rights are significantly curtailed because of the fact
5703, 1994 U.S. App. LEXIS 1268 (6th Cir. Jan. 21, 1994)            that the prisoner is not at physical liberty to make
(unpublished). In Carter, the Sixth Circuit held that a             arrangements that would be possible were the prisoner able to
Tennessee regulation imposing a one-year waiting period on          travel in the community.” Id.
inmates who wished to marry was unconstitutional, but also
found that the defendants were entitled to qualified immunity          Because the case law fails to show that an inmate’s right to
because Turner had not clearly defined the boundaries of the        marry was so clearly established that an official reasonably
right to marry such that they knowingly violated it. In Carter,     would believe that declining to assist an inmate in obtaining
this court stated that “[t]he underlying issue is to what extent    a marriage license is unconstitutional, the Chaiffetzes have
an inmate’s marriage may be controlled by the state; and upon       failed to meet their burden. We affirm the finding of
that issue there is no binding precedent.” Id. at *2.               qualified immunity. 4 However, in order to provide more
Therefore, Turner had not “clearly established” the law such        guidance to officials in the future, we note that Turner’s test
that state officials would know a one-year waiting period           extends to situations in which an inmate’s right to marry will
violated an inmate’s right to marry. The Chaiffetzes cite no        be completely frustrated without prison officials’ affirmative
authority other than Turner and Carter to demonstrate that a        assistance.     Although it was not previously clearly
prisoner’s right to assistance in obtaining a marriage license      established, we now hold that the distinction between actively
was clearly established. Although both cases recognize that         prohibiting an inmate’s exercise of his right to marry and
the constitutional right to marry extends to prisoners, neither     failing to assist is untenable in a case in which the inmate’s
defines the contours of the right. Specifically, neither case       right will be completely frustrated without officials’
discusses whether prison officials and judges must                  involvement. Therefore, where an inmate will be unable to
affirmatively aid prisoners in their efforts to marry.              marry without prison officials’ affirmative assistance,
                                                                    Turner’s strictures apply. The inmate’s right to marry may be
   The lack of prior authority imposing a duty upon officials       curtailed only where the officials’ refusal to assist the inmate
to act affirmatively to aid an inmate in exercising his right to    is reasonably related to legitimate penological interests.
marry indicates that qualified immunity is appropriate here.
In Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991), an
inmate brought suit alleging that prison officials violated her
constitutional rights by not enabling her to have an abortion.
The Sixth Circuit stated that “[t]he actions that Gibson thinks          4
                                                                          The dissent would affirm the grant of summary judgment on the
the prison officials should have performed fall, in our             basis of qua lified imm unity to all defendants exc ept Brigano, who in
opinion, closer to a failure to act than a prohibition [of her      Judge Gilm an’s view “should have known that his actions violated Ira
exercise of the right].” Gibson, 926 F.2d at 536. While there       Chaiffetz’s clearly established constitutional rights.” (Diss. Op . at 1.)
may have been a right to abortion, there was no clearly             However, the dissent fails to explain why Brigano would be treated
established right of a prisoner “to require the aid of prison       differently than Taft or Wilkinson, who both also received
                                                                    correspondence from plaintiffs and who b oth presumably had the
officials in procuring an abortion.” Id. Similarly, in this case,   authority to alter the policy at issue.
No. 01-4035                    Toms, et al. v. Taft, et al.   13    14       Toms, et al. v. Taft, et al.                        No. 01-4035

   The dissent asserts that the action/inaction dichotomy is “a     not read Turner to eradicate the action/inaction distinction.
distinction without a difference in this context.” (Diss. Op. at    Indeed, this court did not consider Turner to have done so, as
4.) We agree that the action/inaction distinction should not        its opinion in Gibson reveals. Nor would a reasonable warden
ultimately relieve officials from liability where they              necessarily believe that ODRC’s policies for handling inmate
knowingly violated the prisoner’s constitutional right through      weddings, under which more than one hundred Ohio inmates
inaction rather than through affirmatively prohibiting the          were able to marry in 1998 and 1999, were unconstitutional.5
exercise of the right. We have set forth this principle in order    The dissent cites no additional cases in support of its
to establish it more clearly for government officials in the        argument that the right at issue was clearly established. The
future. We do not, however, believe that this principle was         reasoning of an applicable precedent, even if its facts are not
sufficiently clearly established in a particularized, relevant      fundamentally similar, can make obvious a government
sense during the time period in which Brigano acted (or failed      official’s legal obligations, as the dissent notes and as Hope
to act). See Anderson, 483 U.S. at 640. In Gibson, this court       v. Pelzer, 536 U.S. 730, 741 (2002), explains. But Turner did
held that the law had not clearly established that prison           not make clear that Brigano was required to affirmatively
officials were required to facilitate prisoners in their requests   assist Chaiffetz in his attempts to obtain a marriage license.
for abortions, although prior cases had held that prisoners had
the right not to be prevented from having an abortion.              C. Monetary Damages
Gibson, 926 F.2d at 535. Thus, if Brigano considered
Gibson, he could reasonably have believed that Chaiffetz had          The Chaiffetzes’ third contention is that the district court
no constitutional right to require officials’ affirmative           “erred in its summary judgment order by denying appellants
assistance in marrying simply because one case, Turner, had         without a hearing their right to show that they were entitled to
held unconstitutional a policy prohibiting marriages.               money damages.” However, an award of monetary damages
                                                                    is unavailable, given that the defendants are entitled to
   The dissent argues that one can view Turner as clearly           qualified immunity. The effect of qualified immunity is to
establishing the right at issue, if one characterizes the           protect government defendants from liability, including
regulation in Turner as “a failure by prison officials to           monetary liability. Harlow, 457 U.S. at 818 (qualified
‘affirmatively aid’ inmates in marrying.” (Diss. Op. at 4.)         immunity shields eligible officials from liability for civil
The Supreme Court, however, characterized the rule as a             damages). Therefore, it was not error for the district court to
“prohibition.” Turner, 482 U.S. at 97. The dissent’s reading        decline to hold a hearing.
of the Turner regulation as “a failure by the prison’s
superintendent to provide a chaplain to perform marriages
                                                                         5
. . . ”, Diss. Op. at 4, does not find support in the Supreme             Although courts engaging in qualified immunity analyses often
Court’s opinion. It included no discussion of the logistics of      consider only case law when determining whether the right at issue was
prison marriage ceremonies, other than to affirm that prison        clearly established, the Supreme Co urt in Hope also considered a
                                                                    Department of Justice report and an Alabama D epartment of Corrections
officials may regulate the time and circumstances under             regulation in deciding whether the officials were on notice tha t their
which the ceremonies take place. Turner, 482 U.S. at 99.            conduct violated the plaintiff’s rights. Hope, 536 U.S. at 744 -45. In this
The regulation at issue did not amount to a mere “failure to        case, therefore, w hile not dispositive, it is appropriate to consider the
provide . . . a chaplain”; rather it banned all inmate weddings     OD RC’s policy, on which Brigano apparently relied, that “all preparatory
absent the superintendent’s express permission, given only for      obligations, such as securing a marriage license, are the so le responsibility
                                                                    of the couple to wed,” in determining whether he knowingly violated
compelling reasons. A reasonable government official would          plaintiffs’ rights.
No. 01-4035                    Toms, et al. v. Taft, et al.   15   16   Toms, et al. v. Taft, et al.                 No. 01-4035

D. Attorney’s fees                                                 necessary to permit an award of attorney’s fees.” Id. at 604
                                                                   (internal quotation marks omitted). Private settlement
  Finally, the Chaiffetzes contend that the district court erred   agreements do not confer prevailing party status. Id. at 604
in declining to award attorney’s fees pursuant to 42 U.S.C.        n. 7 (“Private settlements do not entail the judicial approval
§ 1988. The statute, 42 U.S.C. § 1988, provides that a court       and oversight involved in consent decrees.”).
may grant attorney’s fees to “the prevailing party.” The
Supreme Court has limited the term “prevailing party” to a            In this case, plaintiffs obtained defendants’ “voluntary
party who obtains either “a judgment on the merits” or a           change in conduct,” when the state defendants agreed to allow
“court-ordered consent decree.” Buckhannon Bd. and Care            an employee of the ODRC to be deputized in order to issue
Home, Inc. v. W. Va. Dept. of Health and Human Resources,          the marriage license. However, plaintiffs did not obtain a
532 U.S. 598, 600 (2001). Because the Chaiffetzes obtained         “judgment on the merits.” The only judgment on their
neither a “judgment on the merits” nor a “court-ordered            request for injunctive relief declared that the request was
consent decree,” they are not eligible for attorney’s fees.        mooted by the parties’ voluntary actions. Nor did plaintiffs
                                                                   obtain a “court-ordered consent decree.” Although the
   In Buckhannon, the plaintiff obtained the result it was         settlement conference occurred at the district court, with the
seeking when the West Virginia legislature, which was not a        district judge’s involvement, the resulting settlement did not
party to the lawsuit, changed a statute. The Court held that       bear the necessary “judicial imprimatur.” For example, no
the plaintiff was not a prevailing party in that lawsuit, thus     judicial oversight was involved in enforcing the settlement,
precluding it from obtaining attorney’s fees. The Court            and the district court did not issue any order altering the
stated:                                                            defendants’ conduct. The district court itself did not consider
                                                                   its action to be a “consent decree” leading to prevailing party
  Numerous federal statutes allow courts to award                  status under Buckhannon. The district court stated:
  attorney’s fees and costs to the “prevailing party.” The
  question presented here is whether this term includes a            [T]here has not been a court ordered consent decree.
  party that has failed to secure a judgment on the merits or        Although the parties settled the Plaintiff’s [sic] claim for
  a court-ordered consent decree, but has nonetheless                injunctive relief at a Court sponsored settlement
  achieved the desired result because the lawsuit brought            conference, the record is clear that the agreement was
  about a voluntary change in the defendant’s conduct. We            purely a private one that resulted in no Court ruling or
  hold that it does not.                                             Order on the merits. Moreover . . . the fact that the
                                                                     Court’s Opinion and Order on summary judgment
532 U.S. at 600. In order to “prevail,” and thus to become           indicates a potential violation of the Constitution is of no
eligible for attorney’s fees, a party must have obtained a           moment under Buckhannon because the Court has
“judicially sanctioned change in the legal relationship of the       ordered no judicial relief in this case. As no judicial
parties.” Id. at 605. “A defendant’s voluntary change in             relief was granted in this case, nor was any consent
conduct, although perhaps accomplishing what the plaintiff           decree issued, the court concludes that the Plaintiffs are
sought to achieve by the lawsuit, lacks the necessary judicial       not prevailing parties . . . .
imprimatur on the change.” Id. Only “enforceable judgments
on the merits and court-ordered consent decrees create the
material alteration of the legal relationship of the parties
No. 01-4035                          Toms, et al. v. Taft, et al.       17     18   Toms, et al. v. Taft, et al.              No. 01-4035

In light of the Chaiffetzes’ failure to obtain a judgment on the               Buckhannon in deciding whether to grant attorney’s fees. The
merits or a court-ordered consent decree, they are not entitled                Sixth Circuit and other courts have similarly applied the
to attorney’s fees under Buckhannon.                                           Buckhannon prevailing party rule to cases that were pending
                                                                               when Buckhannon was decided. See Chambers v. Ohio Dept.
  The Chaiffetzes contend that Buckhannon should not apply                     of Human Serv., 273 F.3d 690, 692-93 (6th Cir. 2001); N.Y.
to this case because it was initiated before Buckhannon was                    State Fed’n of Taxi Drivers, Inc. v. Westchester County Taxi
decided.6 Buckhannon was decided on May 29, 2001. The                          and Limousine Comm’n, 272 F.3d 154, 158-59 (2d Cir.
district court, having been apprised of Buckhannon by the                      2001); Johnson v. Rodriguez, 260 F.3d 493, 495 (5th Cir.
judicial defendants, issued its order denying attorney’s fees on               2001); Bennett v. Yoshina, 259 F.3d 1097, 1100-01 (9th Cir.
September 7, 2001.                                                             2001).
  The Chaiffetzes’ argument fails. There is no authority for                      Therefore, the district court was correct in applying
the Chaiffetzes’ suggestion that Buckhannon should not apply                   Buckhannon to this case. Because the Chaiffetzes were not
to their case. The case they cite in support of their position,                prevailing parties under Buckhannon, the district court was
Chevron Oil v. Huson, 404 U.S. 97 (1971), has been                             also correct in determining that the Chaiffetzes were not
overruled to the extent that it permits the selective                          eligible for attorney’s fees.
prospective-only application of a new rule of law. See
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995).                                                  III.
Instead, we apply the following principle announced by the
Supreme Court:                                                                   For the foregoing reasons, we affirm the judgment of the
                                                                               district court in all respects.
  When this Court applies a rule of federal law to the
  parties before it, that rule is the controlling interpretation
  of federal law and must be given full retroactive effect in
  all cases still open on direct review and as to all events,
  regardless of whether such events predate or postdate our
  announcement of the rule.
Harper v. Va. Dept. of Taxation, 509 U.S. 86, 97 (1993).
Under this rule, it was proper for the district court to consider


    6
       The Chaiffetzes instead ask that this court apply pre-Buckhannon
law to their request for attorney’s fees. Before Buckhannon, courts
applied the so-called “catalyst theory.” Under the “catalyst theory,” a
plaintiff who obtained relief through a settlement was a prevailing party
if the plaintiff could (1) dem onstrate that his or her lawsuit was causally
related to securing the relief obtained and (2) establish some minimum
basis in law for the relief secured. Johnston v. Jago, 691 F.2d 283, 286
(6th C ir. 198 2). Buckhannon struck d own the catalyst theory.
No. 01-4035                   Toms, et al. v. Taft, et al.   19   20   Toms, et al. v. Taft, et al.                 No. 01-4035

 ______________________________________________                     anyone that you would find acceptable to serve as
                                                                    Deputy Clerk, and will pay him or her for his services.
  CONCURRING IN PART, DISSENTING IN PART
 ______________________________________________                   Brigano replied that he was denying Toms’s request. He gave
                                                                  no explanation other than to state that “I do not see myself or
   RONALD LEE GILMAN, Circuit Judge, concurring in part           the institution being involved in this process . . . .” Scott P.
and dissenting in part. I concur in the majority’s conclusion     Bellinger, an attorney retained by Toms, then raised the issue
that Bob Taft, Reginald J. Wilkinson, Lawrence Belskis, and       in a second letter to Brigano. Brigano again denied the
Mark Clark are entitled to summary judgment. Based upon           request with little explanation:
the present record, however, I believe that Warden Anthony
J. Brigano should have known that his actions violated Ira          Your request that we assist by designating a staff person
Chaiffetz’s clearly established constitutional rights, thus         as a “deputy clerk to issue the marriage license” for Ms.
precluding his entitlement to summary judgment on the basis         Toms and inmate Chaiffetz must be denied. Our policy
of qualified immunity. I therefore respectfully dissent from        regarding inmate marriages which is attached for your
the majority’s conclusion to the contrary.                          review states “all preparatory obligations, such as
                                                                    securing a marriage license, are the sole responsibility of
  The facts in this case that are pertinent to Brigano’s claim      the couple to wed.”
of qualified immunity are not in dispute. Ira Chaiffetz sought
to marry Laura Toms while he was an inmate at the Warren          Brigano’s refusal to allow anyone, WCI employee or not, to
Correctional Institution (WCI). Ohio statutory law, however,      serve as a deputy clerk resulted in Chaiffetz’s inability to
mandates that in order to receive a marriage license, “[e]ach     marry.
of the persons seeking a marriage license shall personally
appear in the probate court within the county where either          The Supreme Court, on the other hand, has declared that
resides.” Ohio Rev. Code § 3101.05(A).                            prisoners retain their fundamental right to marry. Turner v.
                                                                  Safley, 482 U.S. 78, 95 (1987). Further, where a prison
  Chaiffetz and Toms investigated various avenues for             regulation impinges upon this right, the regulation is valid
satisfying the personal-appearance requirement. A judge of        only “if it is reasonably related to legitimate penological
the Franklin County Probate Court informed them that              interests.” Id. at 89. The prison regulation in the present
someone at WCI could be deputized as an official of the court     case—that “all preparatory obligations, such as securing a
for that purpose. Toms therefore wrote a letter to WCI            marriage license, are the sole responsibility of the couple to
Warden Brigano, explaining:                                       wed”—completely thwarted Chaiffetz’s constitutional right
                                                                  to marry. Unless the regulation was reasonably related to a
  I spoke at length with the Magistrate at the Franklin           legitimate penological interest, therefore, Chaiffetz’s
  County Probate Court and was told that the appointed            constitutional rights were violated by Brigano’s application
  Deputy Clerk need not be a prison employee; it can be           of the prison policy; that is, by Brigano’s refusal to allow
  anyone the Warden is willing to allow to act in this            anyone to serve as a deputy clerk.
  manner. With your assistance, I believe we can find a
  workable solution. I am willing to cooperate with                  In light of Turner, any reasonable prison warden under the
                                                                  circumstances should have recognized the unlawfulness of
No. 01-4035                   Toms, et al. v. Taft, et al.   21   22    Toms, et al. v. Taft, et al.                 No. 01-4035

applying a policy that completely denied a prisoner the right     itself takes place. On this record, however, the almost
to marry. Brigano has not asserted before the district court or   complete ban on the decision to marry is not reasonably
on appeal that his refusal to allow anyone at WCI to be           related to legitimate penological objectives.” Id. at 99
deputized for matrimonial purposes was related to a               (citation omitted).
legitimate penological interest.
                                                                     Nothing in the Court’s analysis depended on the precise
   The majority nevertheless concludes that Brigano is entitled   method by which the prison officials made marriage
to qualified immunity because the policy prohibiting inmates      impossible. In fact, one could easily characterize the prison
from marrying (by preventing them from obtaining marriage         regulation at issue in Turner as a failure by the prison’s
licenses) did so implicitly, rather than explicitly. According    superintendent to provide a chaplain to perform marriages
to the majority, “neither [Turner nor an unpublished Sixth        unless he agreed that there were compelling reasons to do so.
Circuit case] discusses whether prison officials and judges       Thus viewed, Turner itself involved a failure by prison
must affirmatively aid prisoners in their efforts to marry.”      officials to “affirmatively aid” inmates in marrying. The
(Maj. Op. at 11) But neither do these cases relieve a prison      action/inaction dichotomy, in other words, is a distinction
official from liability for enforcing regulations that            without a difference in this context. Even the majority
completely frustrate an inmate’s right to marry simply            recognizes that “the distinction between actively prohibiting
because the official chooses to “stick his head in the sand.”     an inmate’s exercise of his right to marry and failing to assist
                                                                  is untenable . . . .” (Maj. Op. at 12) (Emphasis added.) One
   To marry under Ohio law, a couple must obtain a marriage       wonders how a reasonable official could believe himself to be
license and then have their union solemnized by an authorized     complying with Supreme Court precedent by relying upon an
official. Ohio Rev. Code §§ 3101.05 (marriage license) and        “untenable” distinction.
3101.08 (who may solemnize). Take away either the license
or the official, and one cannot marry. The prison regulation         The primary answer to this question, according to the
applied by Brigano to Chaiffetz in this case effectively told     majority, is that this court’s decision in Gibson v. Matthews,
the prisoner: “Sure you can marry. You just can’t have the        926 F.2d 532 (6th Cir. 1991), generally sanctions the
required license.” That is doublespeak. No warden could           action/inaction distinction in the context of prison regulations.
reasonably believe that he was complying with Turner’s            (See Maj. Op. at 13) (“Thus, if Brigano considered Gibson, he
command by adopting the position taken by Brigano in this         could reasonably have believed that Chaiffetz had no
case.                                                             constitutional right to require officials’ affirmative assistance
                                                                  in marrying simply because one case, Turner, had held
   The regulation challenged in Turner “permit[ted] an inmate     unconstitutional a policy prohibiting marriages.”) (Emphasis
to marry only with the permission of the superintendent of the    in original). In Gibson, the court considered the § 1983 claim
prison, and provide[d] that such approval should be given         of a prisoner who had “wanted to have an abortion and was
only ‘when there are compelling reasons to do so.’” 482 U.S.      not enabled to do so as a result of the actions of different
at 82. According to the Supreme Court, the constitutional         federal officials.” 926 F.2d at 533. This court concluded that
issue was whether that “regulation impermissibly burden[ed]       summary judgment for the defendants was appropriate
the right to marry.” Id. at 97. The Court concluded: “It is       because they were entitled to qualified immunity.
undisputed that Missouri prison officials may regulate the
time and circumstances under which the marriage ceremony
No. 01-4035                    Toms, et al. v. Taft, et al.   23    24    Toms, et al. v. Taft, et al.                  No. 01-4035

  In my opinion, Gibson does not support the majority’s             such a finding.” Hope v. Pelzer, 122 S. Ct. 2508, 2516
analysis. Part of the problem may be the way the majority           (2002). The rationale of applicable precedent, at least as
summarizes Gibson, which is as follows: “In Gibson, this            much as the precise facts of the case, is sufficient to give
court held that the law had not clearly established that prison     officials fair notice concerning their legal obligations. Id. at
officials were required to facilitate prisoners in their requests   2517. In Hope itself, for example, the Supreme Court held
for abortions, although prior cases had held that prisoners had     that prison guards could not reasonably believe that it was
the right not to be prevented from having an abortion.” Maj.        constitutional to wantonly hitch prisoners to a post for hours
Op. at 13 (citing Gibson, 926 F.2d at 535) (Emphasis in             on end, even though circuit precedent dealt only with hitching
original). The second half of the majority’s recitation is          prisoners to fences. Id. Similarly, no warden could have
incorrect. What the Gibson court actually said was: “At the         reasonably doubted the unconstitutionality of a regulation that
time these events took place, there were no reported cases          banned inmates from marrying (by preventing them from
regarding the abortion rights of prisoners.” 926 F.2d at 535        getting marriage licenses) on the basis that the regulation in
(emphasis added). In the present case, on the other hand,           Turner banned inmates from marrying by another means (by
Turner clearly set forth the right of prisoners to marry prior to   subjecting the request to the unfettered discretion of the
Brigano’s actions.                                                  superintendent). The Supreme Court clearly stated in Hope
                                                                    “that officials can still be on notice that their conduct violates
  The Gibson court did discuss the right of citizens generally      established law even in novel factual situations.” Id. at 2516.
(not prisoners) to abortions, and it recognized that although
certain Supreme Court decisions had held “that the                     I am therefore of the opinion that we should reverse the
government cannot restrict access to abortions [where] the          district court’s grant of summary judgment to Brigano. If his
government acted wholly in a prohibitory manner,” other             refusal to appoint a probate court deputy clerk at WCI was in
cases established “that the government was not under an             furtherance of a legitimate penological interest, he can
obligation to facilitate abortions.” Id. at 536. But I cannot       develop the facts supporting such an argument on remand.
conceive that the court’s discussion would have given               The district court would remain free to grant him judgment as
Brigano cause to think that he could deny, for no penological       a matter of law on the ground of qualified immunity should
reason, a prisoner the right to marry so long as the policy he      such facts be developed. On the present record, however,
was enforcing was phrased in terms of inaction. This is due         Brigano is not entitled to qualified immunity because he
to the fact that a physician can provide an abortion without        applied a prison regulation to completely deny an inmate’s
the aid of the state, whereas a marriage does not exist without     right to marry without any apparent penological justification.
the state. That an action/inaction distinction has currency in      I would therefore reverse the portion of the district court’s
the context of abortion, therefore, provides no reason to           judgment that grants Brigano qualified immunity and remand
suppose that it has meaning in the context of the right to          for further proceedings.
marry. Indeed, as explained above, the action/inaction
distinction in this context amounts to no more than                   Finally, a word of explanation is in order as to why I
sophisticated wordplay.                                             believe that summary judgment in favor of Bob Taft and
                                                                    Reginald J. Wilkinson was proper, but was not proper as to
  “Although earlier cases involving ‘fundamentally similar’         Brigano. The majority expresses puzzlement that “Brigano
facts can provide especially strong support for a conclusion        would be treated differently than Taft or Wilkinson, who both
that the law is clearly established, they are not necessary to      also received correspondence from plaintiffs and who both
No. 01-4035                    Toms, et al. v. Taft, et al.   25    26   Toms, et al. v. Taft, et al.                No. 01-4035

presumably had the authority to alter the policy at issue.”           Analysis of Bob Taft’s actions leads to a similar
(Maj. Op. at 12 n.4) There are, however, material differences       conclusion. As governor of Ohio, Taft was not responsible
in the actions taken by each of these gentlemen vis-a-vis the       for applying prison regulations to any particular inmate.
Chaiffetzes.                                                        Toms nevertheless sent him a letter dated October 29, 1999
                                                                    that sought his assistance. He forwarded the letter to the Ohio
   Section 1983 makes liable only the “person who, under            Department of Rehabilitation and Correction. I am aware of
color of any statute . . . subjects, or causes to be subjected,     no case law identifying this action as constitutionally
any citizen of the United States . . . to the deprivation of any    problematic, much less clearly so.
rights . . . secured by the Constitution.” 42 U.S.C. § 1983.
The Chaiffetzes brought suit against many officials, but “[i]f        Summary judgment was therefore proper for Wilkinson and
any one of them is to be held liable, it must be based on the       Taft, neither of whom actually applied a prison regulation to
actions of that defendant in the situation that the defendant       Chaiffetz. But Brigano, on his own authority and without any
faced.” Gibson, 926 F.2d at 535. Section 1983 plaintiffs            direct order from Wilkinson, Taft, or any other superior, did
cannot prevail on a theory of respondeat superior. Combs v.         so act. In light of Turner, I believe that he should have
Wilkinson, 315 F.3d 548, 557-58 (6th Cir. 2002) (“Plaintiffs        known better. I therefore respectfully dissent from the
essentially seek to impose respondeat superior liability            majority’s contrary conclusion.
against the supervisory officers, ManCI, ODRC, and/or the
state of Ohio for the actions of these unidentified officers. It
is well settled that § 1983 liability will not be imposed solely
on the basis of respondeat superior.”).
  I first turn to Wilkinson’s claim of immunity. He is the
Director of the Ohio Department of Rehabilitation and
Correction. This supervisory position does not require him to
actually apply prison regulations to any particular inmate.
Wilkinson’s direct involvement in this case is in fact very
limited. After receiving no relief from Brigano, the attorney
for Toms wrote a letter to Wilkinson on September 24, 1999.
The first sentence of the letter stated: “The purpose of this
correspondence is to inquire as to the State of Ohio’s
procedures for inmates to exercise their constitutional right
and obtain a marriage license while incarcerated outside of
their county of residence.” Assistant Chief Counsel T. Austin
Scott replied to this letter on Wilkinson’s letterhead, attaching
a copy of the Ohio policy on inmate marriages. Replying to
this request for information did not violate any clearly
established constitutional rights.
