DLD-184                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 15-3481
                                      ___________

                  KENNETH MILLER; TINA R. TURNER-MILLER

                                            v.

                              MICHAEL WENEROWICZ


                                          Kenneth Miller,
                                                  Appellant
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. Civ. No. 2-12-cv-01720)
                       District Judge: Honorable Joel H. Slomsky
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                    March 17, 2016

     Before: CHAGARES, GREENAWAY, JR., and SLOVITER**, Circuit Judges

                              (Opinion filed: May 2, 2016)
                                      _________

                                       OPINION*

*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
** The Honorable Dolores K. Sloviter participated in the decision in this case. Judge
Sloviter assumed inactive status on April 4, 2016 after the submission date, but before the
filing of the opinion. This opinion is filed by a quorum of the panel pursuant to 28
U.S.C. § 46(d) and Third Circuit I.O.P. Chapter 12.
                                        _________
PER CURIAM

       Kenneth Miller appeals from the District Court’s entry of summary judgment in

favor of the defendant, Michael Wenerowicz. We will affirm.

                                             I.

       The following facts are taken from the summary judgment record as viewed in the

light most favorable to Miller. Miller is serving a Pennsylvania sentence of life

imprisonment and, at all relevant times, has been confined at SCI-Graterford.

Wenerowicz is SCI-Graterford’s Superintendent. Miller and his wife, Tina Turner-

Miller, filed suit against Wenerowicz complaining that he arbitrarily withheld approval of

their marriage for approximately eleven months.

       Miller first requested permission to marry in April 2011, but Wenerowicz denied

the request with leave to re-apply after six months. Wenerowicz asserts that he did so

because Miller recently had incurred a disciplinary violation. Miller renewed his request

in October of 2011, and Wenerowicz again denied it. Wenerowicz asserts that he did so

because Miller had been assigned “Z-code” status after incurring another disciplinary

violation for exposing himself to a female corrections officer, which suggested the

potential need for sex-offender therapy. Wenerowicz also notified Turner-Miller that

Miller could again renew his request after six months.




                                             2
       After further investigation, however, Wenerowicz determined that these

circumstances posed no impediment to marriage. Thus, on January 31, 2012, he wrote to

Miller and suggested that Miller reapply. Miller did so on March 8, 2012, Wenerowicz

approved the marriage on March 20, 2012, and Miller and Turner-Miller were married on

April 27, 2012.

       Miller filed suit pro se after Wenerowicz approved the marriage but before the

wedding occurred. The District Court appointed counsel and permitted Miller to amend

his complaint to add Turner-Miller as a plaintiff (though we refer hereafter only to

Miller’s claims because Turner-Miller did not file a notice of appeal and thus is not a

party to this appeal). Miller asserted claims under 42 U.S.C. § 1983 for: (1) deprivation

of the right to marry in violation of the Fourteenth Amendment; (2) retaliation for his

exercise of that right; and (3) tortious interference with contract.

       Wenerowicz filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The District

Court dismissed Miller’s second and third claim because Miller expressly withdrew them

at oral argument, but it allowed his first claim to proceed. Following discovery,

Wenerowicz filed a motion for summary judgment and argued, among other things, that

he was entitled to qualified immunity. The District Court agreed and entered summary

judgment in his favor. Miller appeals pro se.1


1
 We have jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary review of the
District Court’s grant of summary judgment and the legal issues underpinning a claim of
qualified immunity.” Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). In doing so,
we view the evidence in the light most favorable to the non-moving party and determine
                                               3
                                               II.

       We will affirm substantially for the reasons explained by the District Court. To

summarize and restate them somewhat, prisoners retain the fundamental right to marry

while in prison. See Turner v. Safley, 482 U.S. 78, 95-96 (1987). But “[t]he right to

marry . . . is subject to substantial restrictions as result of incarceration,” id. at 95, and

“legitimate security concerns may require placing reasonable restrictions upon an

inmate’s right to marry, and may justify requiring approval of the superintendent,” id. at

97. Thus, a restriction on the right to marry does not violate the Constitution if the

restriction is “reasonably related to legitimate penological interests.” Id. at 89.2 Even if a

prison official’s restriction on the right to marry is unconstitutional under the Turner test,

however, the official is immune from suit unless the right at issue was “clearly

established.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012). In determining whether

the right at issue was clearly established, the right must be defined at an appropriate level

of specificity. See id. at 2094 & n.5.

       Miller argued below that Wenerowicz violated his right to marry by delaying

authorization for arbitrary reasons and for an unreasonable period of time. Even if he




whether there is any genuine dispute as to any material fact and whether the movant is
entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56(a).
2
  Turner-Miller has not appealed, but we note that the Turner standard governed her
claims as well even though she was not a prisoner. See Thornburgh v. Abbott, 490 U.S.
401, 410 n.9 (1989).

                                                4
were correct, which we do not decide,3 the right at issue was not clearly established.

Properly defined, Miller claims the right to immediate approval of his marriage request

regardless of his admitted disciplinary violations. No United States Supreme Court (or

Third Circuit) precedent addresses a delay in approval of a marriage request, let alone

clearly establishes that a delay under these specific circumstances violates the

Constitution. See Toms v. Taft, 338 F.3d 519, 526 (6th Cir. 2003) (noting previous

ruling that the right to avoid a mandatory one-year waiting period for marriage is not

clearly established because “the underlying issue is to what extent an inmate’s marriage

may be controlled by the state [under Turner]; and upon that issue there is no binding

precedent”) (quotation marks omitted).

       Even if a “robust consensus” of persuasive authority could clearly establish a

right, Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quotation marks omitted), there

does not appear to be any such consensus on this issue and Miller has not argued

otherwise. To the contrary, one Court of Appeals has held that a one-year delay in

approving a marriage application following a disciplinary violation did not violate a

prisoner’s clearly established rights. See Martin v. Snyder, 329 F.3d 919, 921-22 (7th



3
  Miller argued that Wenerowicz’s initial denials were arbitrary because the version of
the relevant Department of Corrections policy then in place did not specifically authorize
the denial of authorization for the reasons that Wenerowicz invoked or for any other.
Thus, Miller appears to claim that the policy obligated Wenerowicz to automatically and
immediately approve his marriage request. We do not decide that issue in light of our
disposition, but we note that the policy goes on to provide that “[t]his policy does not
create rights in any person” and “should be interpreted to have sufficient flexibility to be
                                             5
Cir. 2003). As that Court explained, Turner does not address delays and other decisions

suggest that certain delays are permissible. See id. at 922. Indeed, “[t]here have been

other protests about delay in marriage, and wardens have won all of the appellate

decisions we could locate.” Id. Moreover, Turner itself recognizes that a prisoner’s right

to marry is subject to restriction and the approval of the superintendent. Against this

legal backdrop, it would have been at least reasonable for an officer in Wenerowicz’s

position to believe that delaying approval of Miller’s marriage for less than one year did

not violate the Constitution.

       The only decision that Miller has cited in support of his position is Engel v. Ricci,

No. 07-5354, 2008 WL 2167994 (D.N.J. May 22, 2008). A single non-precedential

District Court decision, by itself, does not clearly establish a right. See Mammaro v. N.J.

Div. of Child Prot. & Permanency, — F.3d —, No. 15-1448, 2016 WL 683637, at *4 n.2

(3d Cir. Feb. 19, 2016). Even if it could, Engel held only that a claim regarding a

nineteen-month delay survived Rule 12(b)(6) dismissal under otherwise distinguishable

circumstances. See Engel, 2008 WL 2167994, at *5-6. Engel also did not address a

defense of qualified immunity.

                                            III.

       For these reasons, we will affirm the judgment of the District Court.




consistent with law and to permit the accomplishment of the purpose(s) of the policies of
the Department of Correction.” (ECF No. 53-9 at 4.)
                                             6
