LAURA TOMS and IRA CHAIFFETZ v. Bob Taft; Reginald J. Wilkinson; Anthony J. Brigano; Lawrence Belskis; Mark Clark

*The Honorable Dan Aaron Polster, United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0263P (6th Cir.)
File Name: 03a0263p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LAURA TOMS and IRA
CHAIFFETZ,
Plaintiffs-Appellants,
v.
BOB TAFT; REGINALD J.
WILKINSON; ANTHONY J.
BRIGANO; LAWRENCE
BELSKIS; MARK CLARK,
Defendants-Appellees.
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No. 01-4035
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 00-00190—Edmund A. Sargus, Jr., District Judge.
Argued: February 5, 2003
Decided and Filed: July 31, 2003
Before: GILMAN and GIBBONS, Circuit Judges;
POLSTER, District Judge.*
2 Toms, et al. v. Taft, et al. No. 01-4035
_________________
COUNSEL
ARGUED: Arnold S. White, WHITE & FISH, Columbus,
Ohio, for Appellants. Todd R. Marti, OFFICE OF THE
ATTORNEY GENERAL, CORRECTIONS LITIGATION
SECTION, Columbus, Ohio, for Appellees. ON BRIEF:
Arnold S. White, WHITE & FISH, Columbus, Ohio, for
Appellants. Todd R. Marti, OFFICE OF THE ATTORNEY
GENERAL, CORRECTIONS LITIGATION SECTION,
Columbus, Ohio, Linda L. Woeber, Ralph E. Burnham,
MONTGOMERY, RENNIE & JONSON, Cincinnati, Ohio,
Jeffrey Lynn Glasgow, Tracie M. Boyd, FRANKLIN
COUNTY PROSECUTING ATTORNEY’S OFFICE,
Columbus, Ohio, for Appellees.
GIBBONS, J., delivered the opinion of the court, in which
POLSTER, D. J., joined. GILMAN, J. (pp. 19-26), delivered
a separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-
appellants Laura Toms and Ira Chaiffetz, a prisoner, sought
to marry, but were unable to obtain a marriage license
because Chaiffetz’s incarceration made it impossible for him
to comply with an Ohio statute requiring both applicants for
a marriage license to appear personally before the probate
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
married. After the settlement was obtained, the district court

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

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No. 01-4035 Toms, et al. v. Taft, et al. 5
2Judge Clark was retired at that time, but no other judge had been
named to replace him.
They wrote to Judge Mark Clark of that court.2 Clark
declined to designate a clerk for that purpose, stating that
“due to the numerous requests this Court receives and the
hardship it places on our clerks, it is our policy that we do not
send employees to the correctional facilities located in our
County.” Finally, plaintiffs sought assistance from Ohio
Governor Bob Taft, in a letter dated October 29, 1999.
Governor Taft forwarded the request to the ODRC, and
administrative assistant Stacha Doty responded that “Warden
Brigano is correct in not deputizing an employee to serve the
marriage license on the inmate. That is not a part of the
mission [of the ODRC].” Doty also wrote that:
No one is denying you the right to get married. You are
responsible to obtain a marriage license. I am aware that
Franklin County will not issue a marriage license without
both parties present. It is the policy of the [ODRC] not
to transport inmates for the purpose of gaining a marriage
license.
On February 18, 2000, Toms and Chaiffetz filed suit under
42 U.S.C. § 1983 against Taft, Brigano, Wilkinson, Belskis,
and Clark, claiming violations of their right to marry and right
to access to the courts and seeking injunctive and monetary
relief.
The district court scheduled a settlement conference for
March 31, 2000. At the conference, defendants agreed that
the Franklin County Probate Court would deputize an
employee of the “central office” of the ODRC (specifically,
an Assistant Attorney General) as a clerk to issue the
marriage license to Chaiffetz at WCI.
The district court then recited this arrangement into the
record to make sure the parties had reached “a meeting of the
6 Toms, et al. v. Taft, et al. No. 01-4035
minds.” Plaintiffs accepted the outcome and asked that their
request for injunctive relief be withdrawn as moot. The same
day, March 31, 2000, the district court responded to this
request by entering an order stating that “[t]he parties to this
matter have resolved their differences. The pending Motion
for Preliminary and Permanent Injunction is therefore moot.”
Approximately two weeks later, plaintiffs were married.
The issues of damages and attorney’s fees were not
resolved at the conference. After the conference, all
defendants moved for summary judgment. Plaintiffs opposed
summary judgment and sought discovery. In an order dated
January 4, 2001, the district court denied plaintiffs’ motion
for discovery because the defendants’ arguments “were based
on matters of law, namely whether the individual defendants
are entitled to immunity.” In the same order, the court
granted the defendants’ motions for summary judgment,
finding that they were entitled to qualified immunity because,
even if the plaintiffs’ rights to marry and to access to the
courts were violated, neither right was “so clearly established
that a reasonable official would understand that his actions
violate[d] that right.”
The district court’s January 4, 2001, order did not address
the issue of attorney’s fees. The parties therefore briefed the
issue. The district court denied plaintiffs’ request for
attorney’s fees, finding that plaintiffs were not prevailing
parties under 42 U.S.C. § 1988 (as explained by the Supreme
Court in Buckhannon Board and Care Home, Inc. v. West
Virginia Department of Health and Human Resources, 532
U.S. 598 (2001)). Plaintiffs timely appealed, contending that
the district court erred by (1) granting summary judgment
before discovery had begun, (2) finding that defendants were
protected by qualified immunity, (3) denying monetary
damages without considering evidence on the issue, and (4)
denying plaintiffs’ request for attorney’s fees.

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No. 01-4035 Toms, et al. v. Taft, et al. 7
II.
A. Grant of summary judgment before discovery
First, the Chaiffetzes contend that the district court erred by
granting summary judgment before they had conducted
discovery. We review for abuse of discretion. See Emmons
v. McLaughlin, 874 F.2d 351, 356 (6th Cir. 1989).
In this case, the district court did not abuse its discretion by
granting summary judgment before discovery had
commenced. The basis for the district court’s decision was its
finding that defendants were protected by qualified immunity,
a purely legal question. Bell v. Johnson, 308 F.3d 594, 601
(6th Cir. 2002) (“qualified immunity is a question of law”).
To resolve that issue, the only question was whether
plaintiffs’ rights were “clearly established,” thus putting
defendants on notice that they may have been violating those
rights. Although the Chaiffetzes cite various areas they
would have investigated through discovery, such as the state’s
treatment of other prisoners who wished to marry, this
information does not bear on the dispositive question of
whether the prisoner’s right to marry was “clearly
established.” Moreover, it is proper to decide the qualified
immunity issue at the threshold of each case, before
burdening potentially immune defendants with discovery.
Where the defendant seeks qualified immunity and the
defense is dispositive, a ruling on that issue should be made
early in the proceedings so that the costs and expenses of trial
are avoided. Saucier v. Katz, 533 U.S. 194, 200 (2001);
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)
(“[W]e repeatedly have stressed the importance of resolving
immunity questions at the earliest possible stage in
litigation.”); Criss v. City of Kent, 867 F.2d 259, 261 (6th Cir.
1988) (“[D]iscovery in litigation against government officials
should be halted until the threshold question of immunity is
resolved.”). Thus, the district court did not abuse its
discretion in granting summary judgment on the basis of
qualified immunity before allowing discovery.
8 Toms, et al. v. Taft, et al. No. 01-4035
B. Qualified immunity
The Chaiffetzes’ second argument is that the district court
erred in finding that the defendants were protected by
qualified immunity. Because this is a question of law, it is
reviewed de novo. Bell, 308 F.3d at 601. Moreover, this
court examines de novo all appeals arguing that summary
judgment was improperly granted. Summar v. Bennett, 157
F.3d 1054, 1057 (6th Cir. 1998).
Generally, government officials performing discretionary
functions are shielded from liability for civil damages unless
their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have
known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In
order for a right to be “clearly established,” it must be
established in a particularized, relevant sense: the “contours
of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[I]n the
light of pre-existing law the unlawfulness must be apparent.”
Id. Government officials are shielded from civil damages
liability “as long as their actions could reasonably have been
thought consistent with the rights they are alleged to have
violated.” Id. at 638. Thus, officials are “entitled to qualified
immunity [when] their decision was reasonable, even if
mistaken.” Hunter v. Bryant, 502 U.S. 224, 229 (1991).
Qualified immunity “provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986).
This court evaluates qualified immunity claims using a
three-part inquiry. First, we determine whether the facts
viewed in the light most favorable to the plaintiffs show that
a constitutional violation has occurred. Feathers v. Aey, 319
F.3d 843, 848 (6th Cir. 2003). Second, we determine whether
the right that was violated was a clearly established right of
which a reasonable person would have known. Id. Finally,
we determine whether the plaintiff has alleged sufficient facts,

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No. 01-4035 Toms, et al. v. Taft, et al. 9
and supported the allegations by sufficient evidence, to
indicate that what the official allegedly did was objectively
unreasonable in light of the clearly established constitutional
rights. Id.; Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.
1999).
It is undisputed that the right to marry is protected by the
Due Process Clause of the Fourteenth Amendment. Zablocki
v. Redhail, 434 U.S. 374, 383 (1987). “The freedom to marry
has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men.”
Loving v. Virginia, 388 U.S. 1, 12 (1967) (quoting Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)). It
is also undisputed that the right to marry extends to prisoners.
Turner v. Safley, 482 U.S. 78, 95 (1987). However, the right
is not unfettered. Turner holds that a prisoner’s right to marry
may be restricted where the restriction is reasonably related
to a legitimate penological interest. Id. at 96-97. Applying
that test, the Turner Court held unconstitutional a Missouri
regulation that prohibited prisoners from marrying unless the
superintendent found compelling reasons for allowing the
marriage. Id. at 97-98. The Court noted that “legitimate
security concerns” may require placing restrictions on an
inmate’s right to marry, id. at 97, and that the right “is subject
to substantial restrictions as a result of incarceration,” id. at
95. Therefore, Turner recognizes a prisoner’s right to marry,
but also recognizes that the right can be curtailed for
penological reasons. In short, “when a prison regulation
impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological
interests.” Id. at 89.
We hold that refusal to aid a prisoner in exercising his right
to marry, where such refusal completely frustrates the right,
can amount to a “prison regulation” under Turner. Therefore,
such refusals must be reasonably related to legitimate
penological interests. In this case, summary judgment was
granted before state defendants were required to articulate a
legitimate penological interest to justify their policy regarding
10 Toms, et al. v. Taft, et al. No. 01-4035
3The dissent would fault Brigano for failing thus far to articulate a
legitimate penological interest justifying the ODR C policy. Judge Gilman
states, “Brigano has not asserted before the district court or on appeal that
his refusal to allow anyone at W CI to be deputized for matrimonial
purposes was related to a legitimate penological interest.” (Diss. Op. at
3.) It is premature at this point, however, to extract any meaning from
defendants’ failure to assert a legitimate penological interest. The
litigation simply has not proceeded to the stage at which defendants are
required to do so .
inmate marriage licenses.3 Thus, we cannot determine
whether the ODRC policy violated plaintiffs’ rights. Rather,
we note that the ODRC policy, although it does not
affirmatively prohibit the exercise of the right to marry, is a
regulation that must be justified under Turner’s test.
The second part of the qualified immunity inquiry asks
whether the constitutional right was clearly established such
that reasonable officials would know that their conduct
violated the right. Plaintiffs have the burden of showing that
a right is clearly established. Pray v. City of Sandusky, 49
F.3d 1154, 1158 (6th Cir. 1995). The right must be clearly
established in a particularized sense, as discussed above.
However, as the Supreme Court has explained, “officials can
still be on notice that their conduct violates established law
even in novel factual circumstances.” Hope v. Pelzer, 526
U.S. 730, 741 (2002). “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.” Id. In determining
whether a right is clearly established, “we look first to the
decisions of the Supreme Court, then to the decisions of this
court and other courts within our circuit, and finally to
decisions of other circuits.” Bell v. Johnson, 308 F.3d 594,
602 (6th Cir. 2002). The district court, analyzing relevant
law, determined that a prisoner’s “right to marry in this
context was not so clearly defined that a reasonable person
would have known that it was being violated by the
defendant[s’] actions.”

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No. 01-4035 Toms, et al. v. Taft, et al. 11
The Chaiffetzes argue that, in light of Turner, a prisoner’s
right to marry was sufficiently well-established that
defendants should have known they were required to take
affirmative steps to assist the plaintiffs in obtaining a
marriage license. They also cite Carter v. Dutton, No. 93-
5703, 1994 U.S. App. LEXIS 1268 (6th Cir. Jan. 21, 1994)
(unpublished). In Carter, the Sixth Circuit held that a
Tennessee regulation imposing a one-year waiting period on
inmates who wished to marry was unconstitutional, but also
found that the defendants were entitled to qualified immunity
because Turner had not clearly defined the boundaries of the
right to marry such that they knowingly violated it. In Carter,
this court stated that “[t]he underlying issue is to what extent
an inmate’s marriage may be controlled by the state; and upon
that issue there is no binding precedent.” Id. at *2.
Therefore, Turner had not “clearly established” the law such
that state officials would know a one-year waiting period
violated an inmate’s right to marry. The Chaiffetzes cite no
authority other than Turner and Carter to demonstrate that a
prisoner’s right to assistance in obtaining a marriage license
was clearly established. Although both cases recognize that
the constitutional right to marry extends to prisoners, neither
defines the contours of the right. Specifically, neither case
discusses whether prison officials and judges must
affirmatively aid prisoners in their efforts to marry.
The lack of prior authority imposing a duty upon officials
to act affirmatively to aid an inmate in exercising his right to
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
the prison officials should have performed fall, in our
opinion, closer to a failure to act than a prohibition [of her
exercise of the right].” Gibson, 926 F.2d at 536. While there
may have been a right to abortion, there was no clearly
established right of a prisoner “to require the aid of prison
officials in procuring an abortion.” Id. Similarly, in this case,
12 Toms, et al. v. Taft, et al. No. 01-4035
4The dissent would affirm the grant of summary judgment on the
basis of qua lified imm unity to all defendants exc ept Brigano, who in
Judge Gilm an’s view “should have known that his actions violated Ira
Chaiffetz’s clearly established constitutional rights.” (Diss. Op . at 1.)
However, the dissent fails to explain why Brigano would be treated
differently than Taft or Wilkinson, who both also received
correspondence from plaintiffs and who b oth presumably had the
authority to alter the policy at issue.
although Chaiffetz had the constitutional right to marry, there
was no clearly established right to enlist the affirmative
assistance of prison and judicial officials in attempting to
exercise that right. When a prisoner is incarcerated, a “large
number of rights are significantly curtailed because of the fact
that the prisoner is not at physical liberty to make
arrangements that would be possible were the prisoner able to
travel in the community.” Id.
Because the case law fails to show that an inmate’s right to
marry was so clearly established that an official reasonably
would believe that declining to assist an inmate in obtaining
a marriage license is unconstitutional, the Chaiffetzes have
failed to meet their burden. We affirm the finding of
qualified immunity.4 However, in order to provide more
guidance to officials in the future, we note that Turner’s test
extends to situations in which an inmate’s right to marry will
be completely frustrated without prison officials’ affirmative
assistance. Although it was not previously clearly
established, we now hold that the distinction between actively
prohibiting an inmate’s exercise of his right to marry and
failing to assist is untenable in a case in which the inmate’s
right will be completely frustrated without officials’
involvement. Therefore, where an inmate will be unable to
marry without prison officials’ affirmative assistance,
Turner’s strictures apply. The inmate’s right to marry may be
curtailed only where the officials’ refusal to assist the inmate
is reasonably related to legitimate penological interests.

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No. 01-4035 Toms, et al. v. Taft, et al. 13
The dissent asserts that the action/inaction dichotomy is “a
distinction without a difference in this context.” (Diss. Op. at
4.) We agree that the action/inaction distinction should not
ultimately relieve officials from liability where they
knowingly violated the prisoner’s constitutional right through
inaction rather than through affirmatively prohibiting the
exercise of the right. We have set forth this principle in order
to establish it more clearly for government officials in the
future. We do not, however, believe that this principle was
sufficiently clearly established in a particularized, relevant
sense during the time period in which Brigano acted (or failed
to act). See Anderson, 483 U.S. at 640. 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.
Gibson, 926 F.2d at 535. 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.
The dissent argues that one can view Turner as clearly
establishing the right at issue, if one characterizes the
regulation in Turner as “a failure by prison officials to
‘affirmatively aid’ inmates in marrying.” (Diss. Op. at 4.)
The Supreme Court, however, characterized the rule as a
“prohibition.” Turner, 482 U.S. at 97. The dissent’s reading
of the Turner regulation as “a failure by the prison’s
superintendent to provide a chaplain to perform marriages
. . . ”, Diss. Op. at 4, does not find support in the Supreme
Court’s opinion. It included no discussion of the logistics of
prison marriage ceremonies, other than to affirm that prison
officials may regulate the time and circumstances under
which the ceremonies take place. Turner, 482 U.S. at 99.
The regulation at issue did not amount to a mere “failure to
provide . . . a chaplain”; rather it banned all inmate weddings
absent the superintendent’s express permission, given only for
compelling reasons. A reasonable government official would
14 Toms, et al. v. Taft, et al. No. 01-4035
5Although courts engaging in qualified immunity analyses often
consider only case law when determining whether the right at issue was
clearly established, the Supreme Co urt in Hope also considered a
Department of Justice report and an Alabama D epartment of Corrections
regulation in deciding whether the officials were on notice tha t their
conduct violated the plaintiff’s rights. Hope, 536 U.S. at 744 -45. In this
case, therefore, w hile not dispositive, it is appropriate to consider the
OD RC’s policy, on which Brigano apparently relied, that “all preparatory
obligations, such as securing a marriage license, are the so le responsibility
of the couple to wed,” in determining whether he knowingly violated
plaintiffs’ rights.
not read Turner to eradicate the action/inaction distinction.
Indeed, this court did not consider Turner to have done so, as
its opinion in Gibson reveals. Nor would a reasonable warden
necessarily believe that ODRC’s policies for handling inmate
weddings, under which more than one hundred Ohio inmates
were able to marry in 1998 and 1999, were unconstitutional.5
The dissent cites no additional cases in support of its
argument that the right at issue was clearly established. The
reasoning of an applicable precedent, even if its facts are not
fundamentally similar, can make obvious a government
official’s legal obligations, as the dissent notes and as Hope
v. Pelzer, 536 U.S. 730, 741 (2002), explains. But Turner did
not make clear that Brigano was required to affirmatively
assist Chaiffetz in his attempts to obtain a marriage license.
C. Monetary Damages
The Chaiffetzes’ third contention is that the district court
“erred in its summary judgment order by denying appellants
without a hearing their right to show that they were entitled to
money damages.” However, an award of monetary damages
is unavailable, given that the defendants are entitled to
qualified immunity. The effect of qualified immunity is to
protect government defendants from liability, including
monetary liability. Harlow, 457 U.S. at 818 (qualified
immunity shields eligible officials from liability for civil
damages). Therefore, it was not error for the district court to
decline to hold a hearing.

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No. 01-4035 Toms, et al. v. Taft, et al. 15
D. Attorney’s fees
Finally, the Chaiffetzes contend that the district court erred
in declining to award attorney’s fees pursuant to 42 U.S.C.
§ 1988. The statute, 42 U.S.C. § 1988, provides that a court
may grant attorney’s fees to “the prevailing party.” The
Supreme Court has limited the term “prevailing party” to a
party who obtains either “a judgment on the merits” or a
“court-ordered consent decree.” Buckhannon Bd. and Care
Home, Inc. v. W. Va. Dept. of Health and Human Resources,
532 U.S. 598, 600 (2001). Because the Chaiffetzes obtained
neither a “judgment on the merits” nor a “court-ordered
consent decree,” they are not eligible for attorney’s fees.
In Buckhannon, the plaintiff obtained the result it was
seeking when the West Virginia legislature, which was not a
party to the lawsuit, changed a statute. The Court held that
the plaintiff was not a prevailing party in that lawsuit, thus
precluding it from obtaining attorney’s fees. The Court
stated:
Numerous federal statutes allow courts to award
attorney’s fees and costs to the “prevailing party.” The
question presented here is whether this term includes a
party that has failed to secure a judgment on the merits or
a court-ordered consent decree, but has nonetheless
achieved the desired result because the lawsuit brought
about a voluntary change in the defendant’s conduct. We
hold that it does not.
532 U.S. at 600. In order to “prevail,” and thus to become
eligible for attorney’s fees, a party must have obtained a
“judicially sanctioned change in the legal relationship of the
parties.” Id. at 605. “A defendant’s voluntary change in
conduct, although perhaps accomplishing what the plaintiff
sought to achieve by the lawsuit, lacks the necessary judicial
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
16 Toms, et al. v. Taft, et al. No. 01-4035
necessary to permit an award of attorney’s fees.” Id. at 604
(internal quotation marks omitted). Private settlement
agreements do not confer prevailing party status. Id. at 604
n. 7 (“Private settlements do not entail the judicial approval
and oversight involved in consent decrees.”).
In this case, plaintiffs obtained defendants’ “voluntary
change in conduct,” when the state defendants agreed to allow
an employee of the ODRC to be deputized in order to issue
the marriage license. However, plaintiffs did not obtain a
“judgment on the merits.” The only judgment on their
request for injunctive relief declared that the request was
mooted by the parties’ voluntary actions. Nor did plaintiffs
obtain a “court-ordered consent decree.” Although the
settlement conference occurred at the district court, with the
district judge’s involvement, the resulting settlement did not
bear the necessary “judicial imprimatur.” For example, no
judicial oversight was involved in enforcing the settlement,
and the district court did not issue any order altering the
defendants’ conduct. The district court itself did not consider
its action to be a “consent decree” leading to prevailing party
status under Buckhannon. The district court stated:
[T]here has not been a court ordered consent decree.
Although the parties settled the Plaintiff’s [sic] claim for
injunctive relief at a Court sponsored settlement
conference, the record is clear that the agreement was
purely a private one that resulted in no Court ruling or
Order on the merits. Moreover . . . the fact that the
Court’s Opinion and Order on summary judgment
indicates a potential violation of the Constitution is of no
moment under Buckhannon because the Court has
ordered no judicial relief in this case. As no judicial
relief was granted in this case, nor was any consent
decree issued, the court concludes that the Plaintiffs are
not prevailing parties . . . .

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No. 01-4035 Toms, et al. v. Taft, et al. 17
6The 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.
In light of the Chaiffetzes’ failure to obtain a judgment on the
merits or a court-ordered consent decree, they are not entitled
to attorney’s fees under Buckhannon.
The Chaiffetzes contend that Buckhannon should not apply
to this case because it was initiated before Buckhannon was
decided.6 Buckhannon was decided on May 29, 2001. The
district court, having been apprised of Buckhannon by the
judicial defendants, issued its order denying attorney’s fees on
September 7, 2001.
The Chaiffetzes’ argument fails. There is no authority for
the Chaiffetzes’ suggestion that Buckhannon should not apply
to their case. The case they cite in support of their position,
Chevron Oil v. Huson, 404 U.S. 97 (1971), has been
overruled to the extent that it permits the selective
prospective-only application of a new rule of law. See
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995).
Instead, we apply the following principle announced by the
Supreme Court:
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
18 Toms, et al. v. Taft, et al. No. 01-4035
Buckhannon in deciding whether to grant attorney’s fees. The
Sixth Circuit and other courts have similarly applied the
Buckhannon prevailing party rule to cases that were pending
when Buckhannon was decided. See Chambers v. Ohio Dept.
of Human Serv., 273 F.3d 690, 692-93 (6th Cir. 2001); N.Y.
State Fed’n of Taxi Drivers, Inc. v. Westchester County Taxi
and Limousine Comm’n, 272 F.3d 154, 158-59 (2d Cir.
2001); Johnson v. Rodriguez, 260 F.3d 493, 495 (5th Cir.
2001); Bennett v. Yoshina, 259 F.3d 1097, 1100-01 (9th Cir.
2001).
Therefore, the district court was correct in applying
Buckhannon to this case. Because the Chaiffetzes were not
prevailing parties under Buckhannon, the district court was
also correct in determining that the Chaiffetzes were not
eligible for attorney’s fees.
III.
For the foregoing reasons, we affirm the judgment of the
district court in all respects.

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No. 01-4035 Toms, et al. v. Taft, et al. 19
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
RONALD LEE 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
Chaiffetz’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
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.
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. Brigano again denied the
request with little explanation:
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 (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. 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

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No. 01-4035 Toms, et al. v. Taft, et al. 21
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 11) 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. According to the Supreme Court, the constitutional
issue was whether that “regulation impermissibly burden[ed]
the right to marry.” Id. at 97. The Court concluded: “It is
undisputed that Missouri prison officials may regulate the
time and circumstances under which the marriage ceremony
22 Toms, et al. v. Taft, et al. No. 01-4035
itself takes place. On this record, however, the almost
complete ban on the decision to marry is not reasonably
related to legitimate penological objectives.” Id. at 99
(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 12) (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 13) (“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.

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No. 01-4035 Toms, et al. v. Taft, et al. 23
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 13 (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
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
24 Toms, et al. v. Taft, et al. No. 01-4035
such a finding.” Hope v. Pelzer, 122 S. Ct. 2508, 2516
(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 Brigano 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

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No. 01-4035 Toms, et al. v. Taft, et al. 25
presumably had the authority to alter the policy at issue.”
(Maj. Op. at 12 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 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.
26 Toms, et al. v. Taft, et al. No. 01-4035
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.

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