Laura Toms and Ira Chaiffetz v. Bob Taft Reginald J. Wilkinson Anthony J. Brigano Lawrence Belskis Mark Clark

GILMAN, Circuit Judge,

concurring in part and dissenting in part.

I concur in the majority’s conclusion that Bob Taft, Reginald J. Wilkinson, Lawrence Belskis, and Mark Clark are entitled to summary judgment. Based upon the present record, however, I believe that Warden Anthony J. Brigano should have known that his actions violated Ira Chaif-fetz’s clearly established constitutional rights, thus precluding his entitlement to summary judgment on the basis of qualified immunity. I therefore respectfully dissent from the majority’s conclusion to the contrary.

The facts in this case that are pertinent to Brigano’s claim of qualified immunity are not in dispute. Ira Chaiffetz sought to marry Laura Toms while he was an inmate at the Warren Correctional Institution (WCI). Ohio statutory law, however, mandates that in order to receive a marriage license, “[e]ach of the persons seeking a marriage license shall personally appear in the probate court within the county where either resides.” Ohio Rev.Code § 3101.05(A).

Chaiffetz and Toms investigated various avenues for satisfying the personal-appearance requirement. A judge of the Franklin County Probate Court informed them that someone at WCI could be deputized as an official of the court for that purpose. Toms therefore wrote a letter to WCI Warden Brigano, explaining:

I spoke at length with the Magistrate at the Franklin County Probate Court and was told that the appointed Deputy Clerk need not be a prison employee; it can be anyone the Warden is willing to allow to act in this manner. With your assistance, I believe we can find a workable solution. I am willing to cooperate with anyone that you would find acceptable to serve as Deputy Clerk, and will pay him or her for his services.

Brigano replied that he was denying Toms’s request. He gave no explanation other than to state that “I do not see myself or the institution being involved in this process.... ” Scott P. Bellinger, an attorney retained by Toms, then raised the issue in a second letter to Brigano. Briga-no again denied the request with little explanation:

*531 Your request that we assist by designating a staff person as a “deputy clerk to issue the marriage license” for Ms. Toms and inmate Chaiffetz must be denied. Our policy regarding inmate marriages which is attached for your review states “all preparatory obligations, such as securing a marriage license, are the sole responsibility of the couple to wed.”

Brigano’s refusal to allow anyone, WCI employee or not, to serve as a deputy clerk resulted in Chaiffetz’s inability to marry.

The Supreme Court, on the other hand, has declared that prisoners retain their fundamental right to marry. Turner v. Safley, 482 U.S. 78, 95 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987). Further, where a prison regulation impinges upon this right, the regulation is valid only “if it is reasonably related to legitimate penological interests.” Id. at 89 , 107 S.Ct. 2254 . The prison regulation in the present case — that “all preparatory obligations, such as securing a marriage license, are the sole responsibility of the couple to wed” — completely thwarted Chaiffetz’s constitutional right to marry. Unless the regulation was reasonably related to a legitimate penological interest, therefore, Chaiffetz’s constitutional rights were violated by Brigano’s application of the prison policy; that is, by Brigano’s refusal to allow anyone to serve as a deputy clerk.

In light of Turner , any reasonable prison warden under the circumstances should have recognized the unlawfulness of applying a policy that completely denied a prisoner the right to marry. Brigano has not asserted before the district court or on appeal that his refusal to allow anyone at WCI to be deputized for matrimonial purposes was related to a legitimate penological interest.

The majority nevertheless concludes that Brigano is entitled to qualified immunity because the policy prohibiting inmates from marrying (by preventing them from obtaining marriage licenses) did so implicitly, rather than explicitly. According to the majority, “neither [Turner nor an unpublished Sixth Circuit case] discusses whether prison officials and judges must affirmatively aid prisoners in their efforts to marry.” (Maj. Op. at 526) But neither do these cases relieve a prison official from liability for enforcing regulations that completely frustrate an inmate’s right to marry simply because the official chooses to “stick his head in the sand.”

To marry under Ohio law, a couple must obtain a marriage license and then have their union solemnized by an authorized official. Ohio Rev.Code §§ 3101.05 (marriage license) and 3101.08 (who may solemnize). Take away either the license or the official, and one cannot marry. The prison regulation applied by Brigano to Chaiffetz in this case effectively told the prisoner: “Sure you can marry. You just can’t have the required license.” That is doublespeak. No warden could reasonably believe that he was complying with Turner’s command by adopting the position taken by Brigano in this case.

The regulation challenged in Turner “permit[ted] an inmate to marry only with the permission of the superintendent of the prison, and provide[d] that such approval should be given only ‘when there are compelling reasons to do so.’ ” 482 U.S. at 82 , 107 S.Ct. 2254 . According to the Supreme Court, the constitutional issue was whether that “regulation imper-missibly burden[ed] the right to marry.” Id. at 97 , 107 S.Ct. 2254 . The Court concluded: “It is undisputed that Missouri prison officials may regulate the time and circumstances under which the marriage ceremony itself takes place. On this record, however, the almost complete ban on the decision to marry is not reasonably related to legitimate penological objec *532 tives.” Id. at 99 , 107 S.Ct. 2254 (citation omitted).

Nothing in the Court’s analysis depended on the precise method by which the prison officials made marriage impossible. In fact, one could easily characterize the prison regulation at issue in Turner as a failure by the prison’s superintendent to provide a chaplain to perform marriages unless he agreed that there were compelling reasons to do so. Thus viewed, Turner itself involved a failure by prison officials to “affirmatively aid” inmates in marrying. The action/inaction dichotomy, in other words, is a distinction without a difference in this context. Even the majority recognizes that “the distinction between actively prohibiting an inmate’s exercise of his right to marry and failing to assist is untenable ....” (Maj. Op. at 527) (Emphasis added.) One wonders how a reasonable official could believe himself to be complying with Supreme Court precedent by relying upon an “untenable” distinction.

The primary answer to this question, according to the majority, is that this court’s decision in Gibson v. Matthews, 926 F.2d 532 (6th Cir.1991), generally sanctions the action/inaction distinction in the context of prison regulations. (See Maj. Op. at 527) (“Thus, if Brigano considered Gibson , he could reasonably have believed that Chaiffetz had no constitutional right to require officials’ affirmative assistance in marrying simply because one case, Turner , had held unconstitutional a policy prohibiting marriages.”) (Emphasis in original). In Gibson , the court considered the § 1983 claim of a prisoner who had “wanted to have an abortion and was not enabled to do so as a result of the actions of different federal officials.” 926 F.2d at 533 . This court concluded that summary judgment for the defendants was appropriate because they were entitled to qualified immunity.

In my opinion, Gibson does not support the majority’s analysis. Part of the problem may be the way the majority summarizes Gibson , which is as follows: “In Gibson , this court held that the law had not clearly established that prison officials were required to facilitate prisoners in their requests for abortions, although prior cases had held that prisoners had the right not to be prevented from having an abortion.” Maj. Op. at 527 (citing Gibson, 926 F.2d at 535 ) (Emphasis in original). The second half of the majority’s recitation is incorrect. What the Gibson court actually said was: “At the time these events took place, there were no reported cases regarding the abortion rights of prisoners.” 926 F.2d at 535 (emphasis added). In the present case, on the other hand, Turner clearly set forth the right of prisoners to marry prior to Brigano’s actions.

The Gibson court did discuss the right of citizens generally (not prisoners) to abortions, and it recognized that although certain Supreme Court decisions had held “that the government cannot restrict access to abortions [where] the government acted wholly in a prohibitory manner,” other cases established “that the government was not under an obligation to facilitate abortions.” Id. at 536 . But I cannot conceive that the court’s discussion would have given Brigano cause to think that he could deny, for no penological reason, a prisoner the right to marry so long as the policy he was enforcing was phrased in terms of inaction. This is due to the fact that a physician can provide an abortion without the aid of the state, whereas a marriage does not exist without the state. That an action/inaction distinction has currency in the context of abortion, therefore, provides no reason to suppose that it has meaning in the context of the right to *533 marry. Indeed, as explained above, the action/inaction distinction in this context amounts to no more than sophisticated wordplay.

“Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Hope v. Pelzer, 586 U.S. 730 , 122 S.Ct. 2508, 2516 , 153 L.Ed.2d 666 (2002). The rationale of applicable precedent, at least as much as the precise facts of the case, is sufficient to give officials fair notice concerning their legal obligations. Id. at 2517 . In Hope itself, for example, the Supreme Court held that prison guards could not reasonably believe that it was constitutional to wantonly hitch prisoners to a post for hours on end, even though circuit precedent dealt only with hitching prisoners to fences. Id. Similarly, no warden could have reasonably doubted the unconstitutionality of a regulation that banned inmates from marrying (by preventing them from getting marriage licenses) on the basis that the regulation in Turner banned inmates from marrying by another means (by subjecting the request to the unfettered discretion of the superintendent). The Supreme Court clearly stated in Hope “that officials can still be on notice that their conduct violates established law even in novel factual situations.” Id. at 2516.

I am therefore of the opinion that we should reverse the district court’s grant of summary judgment to Brigano. If his refusal to appoint a probate court deputy clerk at WCI was in furtherance of a legitimate penological interest, he can develop the facts supporting such an argument on remand. The district court would remain free to grant him judgment as a matter of law on the ground of qualified immunity should such facts be developed. On the present record, however, Brigano is not entitled to qualified immunity because he applied a prison regulation to completely deny an inmate’s right to marry without any apparent penological justification. I would therefore reverse the portion of the district court’s judgment that grants Bri-gano qualified immunity and remand for further proceedings.

Finally, a word of explanation is in order as to why I believe that summary judgment in favor of Bob Taft and Reginald J. Wilkinson was proper, but was not proper as to Brigano. The majority expresses puzzlement that “Brigano would be treated differently than Taft or Wilkinson, who both also received correspondence from plaintiffs and who both presumably had the authority to alter the policy at issue.” (Maj. Op. at 526 n. 4) There are, however, material differences in the actions taken by each of these gentlemen vis-a-vis the Chaiffetzes.

Section 1983 makes liable only the “person who, under color of any statute ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights ... secured by the Constitution.” 42 U.S.C. § 1983 . The Chaiffetzes brought suit against many officials, but “[i]f any one of them is to be held liable, it must be based on the actions of that defendant in the situation that the defendant faced.” Gibson, 926 F.2d at 535 . Section 1983 plaintiffs cannot prevail on a theory of respondeat superior. Combs v. Wilkinson, 315 F.3d 548, 557-58 (6th Cir.2002) (“Plaintiffs essentially seek to impose respondeat superior liability 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 *534 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.

Analysis of Bob Taft’s actions leads to a similar conclusion. As governor of Ohio, Taft was not responsible for applying prison regulations to any particular inmate. Toms nevertheless sent him a letter dated October 29, 1999 that sought his assistance. He forwarded the letter to the Ohio Department of Rehabilitation and Correction. I am aware of no case law identifying this action as constitutionally problematic, much less clearly so.

Summary judgment was therefore proper for Wilkinson and Taft, neither of whom actually applied a prison regulation to Chaiffetz. But Brigano, on his own authority and without any direct order from Wilkinson, Taft, or any other superior, did so act. In light of Turner , I believe that he should have known better. I therefore respectfully dissent from the majority’s contrary conclusion.