IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
EL-SHABAZZ AHKEEN, ) ) ) FILED Plaintiff/Appellant, ) Lauderdale Circuit No. 5072 ) January 10, 2000 VS. ) Appeal No. W1998-00640-COA-R3-CV ) Cecil Crowson, Jr. TONY PARKER, et al, ) Appellate Court Clerk ) ) Defendants/Appellees. )
APPEAL FROM THE CIRCUIT COURT OF LAUDERDALE COUNTY AT RIPLEY, TENNESSEE THE HONORABLE JOSEPH H. WALKER, JUDGE
EL-SHABAZZ AHKEEN, pro se Henning, Tennessee
PAUL G. SUMMERS Attorney General and Reporter MICHAEL E. MOORE Solicitor General STEPHANIE REEVERS Senior Counsel Civil Rights and Claims Division Nashville, Tennessee Attorney for Appellees
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
DAVID R. FARMER, J. HOLLY KIRBY LILLARD, J.
Ahkeen appeals the trial court’s dismissal of his 42 U.S.C. § 1983 civil rights action. For the
following reasons, the trial court is reversed in part and affirmed in part.
Facts and Procedural History
Ahkeen is an inmate in the custody of the Tennessee Department of Correction (“TDOC”)
serving a life sentence at the West Tennessee High Security Facility (“WTHSF”). On January 8,
1998, Ahkeen filed a prison grievance against an officer at WTHSF, Turner. Ahkeen alleged that
Turner used unprofessional conduct such as cursing, threatening, and directing racial epithets against
Ahkeen.
The following week, a WTHSF supervisor, Chapius, approached Ahkeen at his job site to
speak with him about the grievance. Chapius assured Ahkeen that Turner had been told to refrain
from such actions in the future. As a result, Ahkeen agreed to sign an “Informal Resolution Contact
Sheet” that effectively eliminated the grievance action. After Ahkeen signed the resolution sheet,
Chapius told him that “it” better not happen again.1
On January 20, 1998, Reynolds, another WTHSF officer, attempted to confiscate a gold cross
earring worn by Ahkeen.2 Reynolds told Ahkeen that Chapius had instructed him to confiscate the
earring. When Ahkeen pointed out that other inmates were wearing earrings, Reynolds stated that
he was ordered only to take Ahkeen’s earring, not the other inmates’ earrings. While seeking out
Chapius to discuss the confiscation, Turner approached Ahkeen and told him that the confiscation
was “just something to think about when you [Ahkeen] want to file another grievance.”
Chapius ordered Ahkeen to give up the earring pursuant to TDOC policy 504.01, which
allowed only female prisoners to wear earrings. Chapius did not require any other inmates wearing
1 Ahkeen was uncertain whether the “it” Chapius used referred to Turner’s conduct or Ahkeen’s filing of a grievance.
2 Ahk een ’s left ear was pierced prior to his incarceration. He has continually worn an earring in that ear through out his pris on term . Ahk een allege s tha t he b ega n we aring the e arrin g in qu estio n in 19 92 w hile incarcerated at Tennessee State Prison in Nashville. At that time, male prisoners were allowed to wear one earring.
2 earrings to give them up at that time.
After his earring was confiscated, Ahkeen inserted a small pin into his ear in order to keep
the earring hole open. He was then approached by Reynolds, who ordered him to remove the pin
and not to use any other object to keep the earring hole from closing. Reynolds told Ahkeen that he
was to allow the hole to mend pursuant to Chapius’ orders.
Following the earring incident, Ahkeen filed a prison grievance alleging that Chapius and
Reynolds had acted in a retaliatory, arbitrary, and unconstitutional manner. Ahkeen based this
grievance on Chapius’ and Reynolds’ actions in confiscating his earring and preventing Ahkeen from
maintaining the earring hole with the pin. In the grievance, Ahkeen requested that he be allowed to
wear the earring as a religious expression. He also claimed that the actions of the officers violated
his Due Process, Equal Protection, freedom of religion, freedom of expression, and property rights.
On February 10, 1998, the WTHSF’s grievance committee recommended that “until such a
time that all inmates are required to turn in earrings and said policy is institutionally implemented,
inmate [Ahkeen] should get his earring back and not be required to let the hole close up.” Pursuant
to the committee’s recommendation, the earring was returned to Ahkeen the following day.
According to Ahkeen, Chapius warned him that the earring would be re-confiscated.
Shortly after Ahkeen’s earring was returned, WTHSF’s associate warden, Parker, issued an
institutional memo. The memo stated that TDOC policy 504.01 prohibited inmates from having
earrings at WTHSF.3 The memo also ordered all inmates to mail their earrings out. The memo
became effective on February 17, 1998, and warned that inmates who had not complied by March
15, 1998, would be subject to disciplinary action. The memo was posted on the inmate living units
as per prison procedure. In addition, Ahkeen received a copy of the memo personally delivered by
Chapius, at which time Chapius ordered Ahkeen to make arrangements to send out his earring before
3 TDOC 504.01 addressed the p erso nal pr ope rty that inm ates are a llowe d wh ile incarcerated. Section VI(D) of this policy refers to a list of p erm issib le property published by the TDOC C omm issioner each year. The list in effect at the time the cause of action arose provided that only fem ale inmates were allowed earrings. WT HSF is an all male prison.
3 the day was over.4
On March 9, 1998, Ahkeen filed suit in the Circuit Court of Lauderdale County. In his
complaint, Ahkeen alleged that his civil rights had been violated by Parker, Chapius, Reynolds, and
Turner. Ahkeen alleged that TDOC policy 504.01 had been selectively enforced against him as
retaliation for the grievance filed against Turner. In addition, Ahkeen asserted that the policy
discriminated on the basis of gender and interfered with his personal liberties. Ahkeen also asserted
that TDOC policy 504.01 contradicted policy 502.03 which allowed inmates freedom in their
grooming and dress, absent conflict with specific prison needs.5 Ahkeen based his claims on the
First, Fourth, and Fourteenth Amendments to the United States Constitution. He sought injunctive
and declaratory relief as well as monetary damages.
On March 24, 1998, Ahkeen filed a supplemental complaint which added an additional claim
based on Turner’s actions following Ahkeen’s original complaint. Ahkeen claimed that he was
verbally assaulted by Turner, threatened with solitary confinement, and subjected to racial and
religious slurs. Turner also apparently threatened to file false grievances against Ahkeen. According
to Ahkeen, Chapius and another inmate witnessed part of the altercation, but Chapius did nothing
to stop Turner. Based on these facts, Ahkeen added a claim for violation of his rights as guaranteed
by the First Amendment of the Tennessee Constitution, in addition to the previously alleged
violations of the United States Constitution. Ahkeen added the state law claims of civil rights
intimidation via malicious harassment and official oppression pursuant to Tenn. Code Ann. § 39-17-
309; § 4-21-701; and § 39-16-403.
Parker, Chapius, and Turner (“Defendants”) filed a motion for summary judgment, requesting
judgment as a matter of law because the compliant failed to state a claim upon which relief could
4 Ahkeen claims that no other prisoner was singled out to rece ive a cop y of the m emo or require d to send their earrings out before the deadline.
5 TDOC policy 502.03 states in relevant part: “Inmates shall be permitted freedom in personal grooming and dress as long as their appearance does not conflict with the institu tion’s requ irem ents for sa fety, security, iden tification, and hygiene.”
4 be granted.6 In addition, the Defendants moved to dismiss Ahkeen’s supplemental complaint for
failure to state a claim.7 The Defendants filed supporting affidavits contravening some of Ahkeen’s
allegations. Specifically, Chapius stated that he had previously required other inmates to remove
their earrings, and that he had personally sought out Ahkeen solely to prevent Ahkeen from getting
into trouble over the violation. Chapius and Parker both refuted Ahkeen’s allegations that their
actions were retaliatory. Defendants then filed a statement of undisputed facts that corroborated the
basic facts as provided in the complaints but did not contain any references to the alleged verbal
assaults suffered by Ahkeen.
In support of the summary judgment motion, Defendants asserted that Ahkeen did not
comply with Tenn. Code Ann. § 41-21-805, which required indigent inmates to file an affidavit of
inability to pay which included a history of the inmate’s prior lawsuits. Defendants also asserted that
Ahkeen had failed to provide probative evidence to support a retaliation claim. In addition,
Defendants challenged Ahkeen’s First Amendment claim regarding freedom of religion and
expression.8 Defendants argued that Fourth Amendment property, privacy, and Due Process claims
asserted by Ahkeen were unfounded because of the prison setting. Defendants also argued that
Ahkeen’s Equal Protection claims of selective enforcement and gender discrimination were
unfounded. Finally, Defendants alleged that Turner was not personally involved in the alleged 42
U.S.C § 1983 violations and was therefore not liable; that verbal harassment was not a cognizable
claim under § 1983; and that Defendants could not be sued under § 1983 because they were acting
in their official capacities.
Ahkeen challenged the Defendants’ Motion for Summary Judgment, alleging that genuine
issues of material facts were still in dispute, namely the alleged retaliatory motive of the Defendants,
as well as the alleged selective enforcement of TDOC policy 504.01. In the alternative, Ahkeen
6 Reynolds was also a named defendant in Ahke en’s com plaint. Reynolds later adopted the Motion for Summary Judgment filed by the other Defendants.
7 Defendant’s included this “motion to dismiss” within the language of their motion for summary judgm ent.
8 Defen dants argued that the prison’s interest in the safety of the inmates outweighed any first amendment right held by Ahkeen. According to Defendants, allowing inmates to “cross-dress” [wear an earring] would encourage sexual assaults in prison.
5 asked that summary judgment be granted in his favor if no such dispute existed.
On October 5, 1998, the trial court entered an order granting Defendants’ request for
summary judgment and dismissing the complaint for failure to comply with Tenn. Code. Ann. § 41-
21-801. The court found that Ahkeen did not state a retaliation claim, a first amendment claim, a
property, privacy, or due process claim, or an equal protection claim. In addition, the court found
that the Defendants were sued in their official capacity, and therefore did not qualify as “persons”
under § 1983. Pursuant to Tenn. Code. Ann. § 9-8-307(h), the court stated that state officers and
employees are absolutely immune from liability for acts or omissions within the scope of their office
or employment, except for certain types of actions that were not alleged by Ahkeen.
Ahkeen did not learn of the October 5, 1998 order until December 2, 1998. Due to the late
notice, Ahkeen’s subsequent Motion for Delayed Appeal was granted by the court. Ahkeen presents
five issues on appeal: whether the trial court erred in dismissing his complaint for failure to comply
with Tenn. Code Ann. § 41-21-805; whether the trial court erred in dismissing the complaint for
failure to state a claim; whether the trial court erred in denying Ahkeen’s complaint on summary
judgment; whether the court erred in dismissing the complaint based on the finding that Defendants
were sued in their official capacities; and, whether the court erred in dismissing the complaint on the
finding that Defendants were immune because of state law.
Analysis
We find it appropriate to note that some of the parties’ arguments are overlapping, therefore,
we have combined these issues as needed for clarity.
As a preliminary matter, we must determine the proper scope of review for this case. The
order granting Defendants’ Motion for Summary Judgment also includes and grants a Motion to
Dismiss. This Motion to Dismiss was included within the language of Defendants’ summary
judgment motion and a supporting memo.
I. Motion to Dismiss
6 A motion to dismiss for failure to state a claim upon which relief can be granted tests only
the legal sufficiency of the complaint, not the strength of a plaintiff's proof. Such a motion admits
the truth of all relevant and material averments contained in the complaint, but asserts that such facts
do not constitute a cause of action as a matter of law. TENN . R. APP . P. 13(d); Stein v. Davidson
Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997); Pursell v. First American Nat'l Bank, 937 S.W.2d 838,
840 (Tenn. 1996); Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994). From
our reading of the record, the Motion to Dismiss applies only to Defendants’ argument that Ahkeen’s
complaints should be dismissed for failure to comply with Tenn. Code Ann. § 41-21-805.
Tenn. Code Ann. § 41-21-805
The first issue raised by Ahkeen is whether the trial court erred in dismissing his complaint
for failure to comply with Tenn. Code Ann. § 41-21-805. This statute provides that in order for an
indigent inmate to proceed with a claim in state court, the inmate must file a list of every lawsuit or
claim he previously filed.9 While we agree with Defendants’ argument in the trial court that such
a filing is mandatory, we find no authority requiring the filing to be made simultaneously with the
filing of the initial complaint. Ahkeen made the mandatory filing before the order granting the
Defendants a summary judgment was entered. Defendants do not reargue this issue on appeal.
Therefore, for the reason stated above, we find that the trial court erred in dismissing Ahkeen’s
complaint for failure to comply with Tenn. Code Ann. § 41-21-805.
II. Whether Summary Judgment was proper
9 Tenn Code Ann. § 41-21-805 provides: (a) Any inm ate who files a claim with an affidavit of inability to pay costs shall file a sepa rate a ffida vit with the following information: (1) A complete list of ev ery law suit or claim previously filed by the inmate, without regard to whether the inmate was incarcerated at the time any claim or action was filed; and (2) For each claim or action listed in subsection (a): (A) Th e opera tive facts fo r which re lief was so ught; (B) The case name, case number and court in which the suit or claim was filed; (C) The legal theory on which the relief sought was based; (D) The identification of each party named in the action; and (E) The fina l result of the a ction, including dismissal as frivolous or malicious under this part or otherwise. (b) If the affidavit filed under this section states that a previous suit was dismissed as frivolous or ma licious , the a ffida vit m ust s tate th e dat e of th e fina l orde r affir min g the dism issa l. (c) The affid avit must be accompanied by a current certified copy of the inmate's trust account statem ent.
7 All other issues could be properly disposed of only through the Motion for Summary
Judgment. The trial court considered material outside of the pleadings, including supporting
affidavits and finding of facts in reaching its decision on the other issues. See Knierman v.
Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976). Summary judgment is the appropriate procedural
device to use when the trial court goes outside the pleadings to reach its decision. Therefore, we now
consider whether summary judgment was properly granted on the other issues in the court below.
The standards governing our review of a summary judgment motion are well settled. Our
inquiry involves purely a question of law; therefore, we review the record without a presumption
of correctness to determine whether the absence of genuine and material factual issues entitle the
movant to judgment as a matter of law. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997); Byrd
v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); TENN . R. CIV . P. 56.03. Our primary inquiry is whether
there are any genuine issues of material fact. It is only after a finding that no material facts are in
dispute that the movant must either affirmatively negate an essential element of the non-movant's
claim or conclusively establish an affirmative defense. Robinson, 952 S.W.2d at 426; Byrd, 847
S.W.2d at 215, n. 5. Id. If the movant successfully negates a claimed basis for the suit, the
non-movant may no longer simply rely upon the pleadings, but must then establish the existence of
the essential elements of the claim or the non-existence of the defense. Finister v. Humboldt General
Hosp., Inc., 970 S.W.2d 435, 437-438 (Tenn. 1998).
Under the standard stated above, we find that the preliminary finding necessary to grant a
motion for summary judgment was not met on all claims. As explained below, a genuine issue of
material fact regarding the actions of Defendant Turner remain in dispute. Accordingly, the trial
court should not have granted the Defendants’ motion as to all issues.
A. Retaliation Claim against Defendant Reynolds
Ahkeen argues on appeal that the trial court erred in finding that he did not make a viable
retaliation claim against Reynolds. Reynolds is the guard who attempted to confiscate Ahkeen’s
earring and then ordered him to remove the pin he had inserted to keep the hole open. Ahkeen
argues that Reynolds’ personal lack of a retaliatory motive is irrelevant, and that Reynolds is not
8 shielded simply because he was acting on a superior’s orders.
In establishing a retaliation claim under § 1983, a prisoner plaintiff’s burden is different from
that of a non-prisoner plaintiff. A prisoner plaintiff must show: (1) that he engaged in conduct
protected by the First Amendment; (2) a chronology of events from which retaliation may reasonably
be inferred; (3) that a sufficiently adverse prison action was taken against him and that such an action
would deter a person of “reasonable firmness” from continuing the protected conduct; and (4) a
causal connection between the conduct and the adverse action. See Thaddeus-X v. Blatter, 175 F.3d
378, 394 (6th Cir. 1999); Anderson v. Sundquist, 1 F.Supp. 2d 828, 832-833 (W.D. Tenn. 1998).
Even assuming that Ahkeen’s wearing of an earring may qualify as protected freedom of
expression First Amendment conduct, Ahkeen failed to meet the remaining requirements. There is
no clear chronology of events that creates a reasonable inference of retaliation. As stated above,
Reynolds was unaware of the grievance filed by Ahkeen. His actions, in merely carrying out the
order of a superior, do not imply a retaliatory motive and therefore do not create the required
chronology of events.
In addition, we do not find that the confiscation of Ahkeen’s earring qualifies as a sufficiently
serious adverse prison action. Ahkeen was allowed to contest the confiscation and gain the return
of the earring until the policy was uniformly applied. Under these circumstances, we cannot find that
the confiscation of an earring would deter a person of ordinary firmness from continuing protected
conduct.
Finally, we do not find the required causal connection between the conduct and the adverse
action. Ahkeen was only warned of the consequences of filing other grievances after his earring had
been returned, and this warning did not come from Reynolds. At no time did Defendant Reynolds
indicate that his actions were due to Ahkeen’s filing of a grievance.
We find that the trial court did not err in granting Defendants’ motion for summary judgment
regarding Ahkeen’s retaliation claim against Reynolds. Ahkeen has failed to raise any genuine issues
9 of material fact that would prevent the grant of a summary judgment. Defendants have fully met
their burden in proving that Ahkeen’s allegations do not meet the elements of a viable retaliation
claim. Accordingly, the trial court’s order is affirmed on this point.
B. Retaliation Claim against Defendant Turner
Ahkeen also asserted a retaliation claim against Defendant Turner. Ahkeen based this claim
on Turner’s use of racial and religious slurs as well as the verbal threats that Ahkeen would receive
harsh treatment unless he stopped filing grievances. Ahkeen alleges that Turner threatened him with
solitary confinement in addition to threatening to file false reports against him. This claim presents
a much closer question under the standard provided above. Although indicators of each required
factor are present, unanswered questions remain. In particular, the existence and content of the
exchanges between Turner and Ahkeen is in dispute. For this reason, we find that genuine issues
of material fact regarding Turner’s motive remain, and summary judgment was not proper on this
claim. Therefore, the trial court is reversed on this issue.
C. Freedom of Religion
Ahkeen basis his freedom of religion claim on the First Amendment of the United States
Constitution.10 While prison regulations are subject to the First Amendment, courts will not interfere
with the administration of a prison or its policies unless they are unreasonable or arbitrary. O’Lone
v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Dean v. Campbell, No.
02A019704CV00077, 1997 WL 401960 (Tenn. Ct. App. July 17, 1997). In addition, an inmate is
not exempted from a religion-neutral policy merely because his practice of religion is burdened by
application of the policy. Employment Div., Dept. of Human Resources of Oregon v. Smith, 494
U.S. 872, 110 S.Ct. 1595, 108 L.Ed. 2d 876 (1990). In a case such as this, where the inmate’s claim
is based on confiscation of an item, the inmate must prove that the article is essential or a central
tenant to his religion in order to prevail. See Dean.
Ahkeen’s allegations do not constitute viable claims for a violation of his rights to freedom
10 Ahkeen also a ttem pts to ass ert a f reed om of ex pres sion claim . This claim is interm ingled with h is freedom of religion claim and characterized as a freedom of religion and expression issue. For this reason, we a ddre ss th is iss ue on ly as a s ub-c ateg ory of the fr eed om of relig ion cla im.
10 of religion under the First Amendment. The policy in question is clearly religion-neutral; it prohibits
all types of earrings, not just those with religious connotations. This policy is neither unreasonable
nor arbitrary in light of the atmosphere inside the prison, where clothing and jewelry can take on
other meanings such as sexual orientation or gang affiliation. In addition, Ahkeen has failed to show
that the cross earring is essential to his practice of religion.
For the reasons stated above, the confiscation of the earring does not support a freedom of
religion claim under the First Amendment. The trial court did not err in granting Defendants’
summary judgment motion on this issue.
D. Fourteenth Amendment Due Process Claim
The Fourteenth Amendment guarantees that a person’s property will not be taken without due
process of law. However, a § 1983 claim is not the proper vehicle to recover for deprivation of the
property when state law provides a remedy for recovery. Daniels v, Williams, 474 U.S. 327, 106
S.Ct. 662, 88 L.Ed.2d 662 (1986). In this case, such a remedy is available under Tennessee state
law, pursuant to Tenn. Code. Ann. § 9-8-307(a)(1)(F).11 The existence of an adequate remedy under
state law renders any § 1983 claim untenable. Therefore, the trial court did not err in granting
summary judgment of this claim.
E. Right to Privacy Claim
Ahkeen asserts that the confiscation of his earring violated his Fourth Amendment right to
privacy. Ahkeen characterized this confiscation as an unreasonable invasion of his privacy. We are
unconvinced that this action triggers the protection afforded by the Fourth Amendment. However,
even assuming that Ahkeen’s right to privacy is jeopardized, we are unconvinced that he has stated
a viable claim for the following reasons.
11 Tenn. Code. Ann. § 9-8-307(a)(1)(F) provides: (a)(1) The commission or each commissioner sitting individ ually has ex clusive juris diction to de termin e all mo netary claim s agains t the state based on the ac ts or omissions of "state employees," as such term is defined in § 8-42-101(3), falling within one (1) or more of the following categories: (F) Ne gligent car e, custo dy or contro l of perso nal prope rty. . .
11 While prisoners are afforded the right to privacy under the Fourth Amendment, this right is
limited. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2804, 41 L.Ed.2d 495 (1974.) As the Supreme
Court stated in Hudson v. Palmer, “loss of freedom of choice and privacy are inherent incidents of
confinement.” Hudson, 468 U.S. 517 at 528, 104 S.Ct. 3194 at 3201, 82 L.Ed.2d 393. Certainly,
any right to privacy is subject to the overriding need of the prison to maintain security and order
through reasonable prison regulations. We find no support for Ahkeen’s allegations that the
confiscation violated his right to privacy. Therefore, the trial court did not err in granting summary
judgment on this claim.
F. Equal Protection Claim
Ahkeen asserts a Fourteenth Amendment Equal Protection claim based on the incidents
described above. According to Ahkeen, he was subjected to unjustified discrimination and unequal
treatment and was denied his right to equal protection under the law. Specifically, Ahkeen claims
that the prison regulation was selectively enforced against him and that the policy prohibiting male
prisoners from wearing earrings was a form of gender discrimination. See TDOC policy 504.01.
Defendants assert that the regulation was neither selectively enforced nor a form of gender
discrimination.
An Equal Protection claim will lie if a plaintiff can show that he has been burdened by state
action because he is a member of a suspect or quasi-suspect class or that his fundamental rights have
been burdened because he is a member of a government classification. Doe v. Sundquist, 943 F.
Supp. 886 (M.D. Tenn. 1996), aff’d., 106 F.3d 702 (6th Cir. 1996), cert. denied, 522 U.S. 810, 118
S. Ct. 54, 139 L.Ed. 2d 16 (1997). Defendants argue that Ahkeen has failed to claim discrimination
based on any classification and that he does not assert a violation of any fundamental right. While
we agree that Ahkeen’s argument regarding selective enforcement does not meet the threshold
requirement to present an equal protection claim, we are not persuaded that his claim of gender
discrimination warrants no discussion. Gender is a quasi-suspect class for equal protection purposes.
See Doe. With that in mind, we will now address whether Ahkeen’s discrimination claim was
properly subject to summary judgment.
12 We find it appropriate to note that although this court has not directly addressed this issue
before, other courts have previously held that different grooming regulations for male and female
inmates do not trigger the inmate’s Equal Protection rights. Hill v. Estelle, 537 F.2d 214, 215 (5th
Cir. 1976); Poe v. Werner, 386 F.Supp. 1014, 1016 (M.D. Pa. 1974). Indeed, the physical
differences between male and female inmates may require different regulation in order to promote
safety and hygiene. With this is mind, we consider Ahkeen’s status as a prisoner in relation to his
claim.
In order to be upheld, a prison regulation that infringes upon the Constitutional rights of
inmates must be reasonably related to a legitimate government interest. Turner v. Safely, 482 U.S.
78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). On appeal, Ahkeen claims that the Defendants have
failed to demonstrate that the regulation is reasonably related to any legitimate government interest.
We are unpersuaded by this argument for the following reasons.
In the court below, Defendants asserted that TDOC policy 504.01 was enacted to “promote
institutional security by discouraging transsexual dressing by inmates.” Defendants further argued
that by discouraging transsexual dressing and therefore discouraging sexual assaults, the policy helps
maintain safety and internal security at the prison. Ahkeen argues that there is no evidence of sexual
assaults occurring because inmates were wearing earrings and that consequently, the interest put
forth by the Defendants does not qualify under the test stated above. We disagree.
The Court recognizes that in general, a male wearing an earring does not immediately suggest
that the wearer is transsexual or invite sexual assault. However, the atmosphere among the inmates
in a prison undoubtedly contains greater tension, both sexual and otherwise, than the atmosphere
outside the prison walls. Therefore, we find that a policy restricting transsexual dressing, even in
what seems a minor way, is reasonably related to the legitimate government interest in the welfare
and safety of the inmates. Accordingly, the trial court did not err in granting summary judgment on
Ahkeen’s equal protection claims.
G. Verbal Harassment
We find it unnecessary to fully address Ahkeen’s verbal harassment claim. Ahkeen bases
13 his claims solely on the racial and religious slurs he was purportedly subjected to by Turner. These
allegations do not give rise to a claim under 42 U.S.C. § 1983. Verbal threats, no matter how
offensive, do not amount to an actionable violation of Ahkeen’s rights. See Emmons v. McLaughlin,
874 F.2d 351, 352 (6th Cir. 1989). We are unpersuaded that the threats were motivated by the desire
to punish Ahkeen for the exercise of a constitutional right. See Thaddeus-X v. Blatter, 175 F.3d 378,
at 386 (6th Cir. 1999) (verbal harassment may be actionable if it motivated in substantial part by a
desire to punish an individual for exercise of a Constitutional right). Instead, it appears that the on-
going antagonistic relationship between Turner and Ahkeen was the motivating factor in any verbal
exchange. Summary judgement was proper on this issue.
H. Discovery Issues
In addition to the validity of the claims themselves, Ahkeen basis his appeal on the idea
that summary judgement was not proper because discovery was on-going and motions were
pending at the time that the trial court granted Defendants’ motion. We find this argument to be
without merit.
The trial court may assign reasonable limitations on discovery when an inmate files a civil
suit. Bradfield v. Dotson, No. 02A01-9707-CV-00152, 1998 WL 63521 at *3 (Tenn. Ct. App.
February 17, 1998); Reid v. State of Tennessee, No. 02A01-9801-BC-002931999 WL 257628 (Tenn.
Ct. App. April 28, 1999). In addition, the trial court can limit discovery that is unreasonably
burdensome, duplicative, or cumulative in relation to the positions of the parties or the issues
asserted. See TENN . R. CIV . P. 26.02(1). From our review, we find that both parties were allowed
adequate discovery prior to the grant of summary judgment. Accordingly, the trial court did not err
on this issue.
III. Defendants’ Official Capacities
On appeal, Ahkeen asserts that the trial court erred in dismissing his complaint on the
grounds that Defendants were sued for money damages in their official capacities as state employees.
Ahkeen alleges that he is suing the Defendants in their individual capacities, and that his request for
14 r e l i e f i s n o t l i m i t e d t o m o n e y d a m a g e s .
A suit for money damages pursuant to 42 U.S.C. § 1983, cannot be maintained against states,
state agencies, or employees of the state in their official capacity. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Dean v. Campbell, No.
02A019704CV00077, 1997 WL 401960 (Tenn. Ct. App. July 17, 1997). In other words, state
employees sued in their official capacities for monetary damages do not qualify as “persons” under
42 U.S.C. § 1983. See 42 U.S.C. § 1983. Conversely, a state employee can be sued in his official
capacity for declaratory or injunctive relief. Will, at 70 n. 10. In addition to the limitations
mentioned above, Tennessee state law further shelters state employees from liability. See Tenn. 1 2 C o d e A n n . § 9 - 8 - 3 0 7 ( h ) .
We find no support for Ahkeen’s argument that he is suing the Defendants in their individual
rather than official capacity. For this reason, his claim for money damages must fail. However, it
is clear from the record that Ahkeen is seeking declaratory and injunctive relief in addition to any
money damages. Ahkeen’s claims for relief other than money damages falls within the ambit of §
9-8-307(h) of the Tennessee Code and are also prohibited, except as to Defendant Turner. As we
previously stated, there remain genuine issues of material fact which may indicate that Turner’s
actions are not protected under § 9-8-307(h). Accordingly, the trial court did not err in disposing
of these claims as to the Defendants other than Turner.
Conclusion
Based upon the foregoing, the judgment of the trial court is hereby affirmed in part, reversed
in part, and remanded to the trial court for such further proceedings as are necessary. Costs of the
appeal are assessed one-half to the appellant, El-Shabazz Ahkeen, and one-half to the appellee, Tony
Parker, et al., for which execution may issue if necessary.
12 Tenn. Code. Ann. § 9-8-307(h) provides in relevant part: State officers and employees are abs olute ly immune from liability for acts or omissions within the scope of the officer's or em ployee's office or emp loymen t, exc ept fo r willfu l, ma licious , or cr imin al acts or om issions or for acts or omissions done for person al gain.
15 HIGHERS, J.
FARMER, J.
LILLARD, J.