# FILED January 10, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON EL-SHABAZZ AHKEEN, ) ) ) Plaintiff/Appella

nt, ) Lauderdale Circuit No. 5072

) VS. ) Appeal No. W1998-00640-COA-R3-CV ) TONY PARKER, e

t al, )

) ) Defendants/App

ellees. )
APPEAL FROM THE CIRCUIT COURT OF L AUDERDALE 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 P

ART, REVERSED IN PART AND REMA

NDED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FARMER, J.1 Ahkeen was uncertain whether the “ it” Chapi us used referred t o Turner’s conduct

or Ahkeen’s fi ling of a griev

ance.
2 Ahk een ’s left ear

was pierced pri or to his incarcerat ion. He has cont inually worn an earring i n 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 incarcerat

ed at Tennessee State Pr ison in Nashvi lle. At that time, male pri soners were all owed to wear one earring. 2 HOLLY KIRBY LILLARD, J.
Ahkeenappeals the trial court’s dismissal of his 42 U.S.C. § 1983 civil rights action. For the following reas

ons, the trial cour

t is reversed in pa

rt and affirmed i

n part.
Facts and Procedural History Ahkeenis an inmate in the custody of the Tennessee Department of Correction (“TDOC”) serving a life sent ence 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 unpro fession al conduct such a s cursing, threa

tening, and dire

cting racial e

pithets against Ahkeen.

The following week, a WTHSF supervisor, Chapius, approached Ahkeen at his job site to speak with

him about the grievance. Chapius assured A hkeen that Turne

r had been told to r

efrain from such actions in

the future. As a result, Ahkeen agreed to sign an “Informa l Resolution Contact Sheet” that effectively eliminated the grievance action. After Ahkeen signed the reso

lution sheet, Chapius told him that “it” better not happen again. 1

On Ja nuary

20, 1998, Rey

nolds, another WTHS

F officer, atte

mpted to confisca

te a gold cross earring worn by Ahkeen. 2 Reynolds told Ahkeen that Chapius had instructed him to confiscate the earring. When Ahkeen pointe d out that other inma

tes were weari

ng earrings,

Reynolds stated that he wa s 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.”

Ch apius ordered Ahkeen to give up the earring pursuant to TDOC policy 504.01, which allowedonly female prisoners to wear earrings. Chapius did not require any other inmates wearing3 TDOC 504.01 addressed the p erso nal pr ope rty that inm ates are a llowe d wh ile incarcerat ed. Secti on VI(D) of thi s 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 t ime the cause of acti on arose provided t ha t only fem ale inmates were all owed earrings. WT HSF is an all male prison. 3 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 Reyno lds, who ordered h im to remove the pin andnotto use any other object to keep the earring hole from c losing. 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 alleg ing that Chapius and Reynolds had act ed i n a re tal iat ory, arbi tra ry, a nd unconstitutional manner. Ahkeen

based this griev ance on Chapius ’ and Reynolds ’ actions i n confiscat ing his earri ng and preven ting Ahkeen fro m maintaining the earring ho le with the pin. I

n the grievanc

e, Ahkeen reque

sted that he be all

owed to
wear the earring as

a religious expre

ssion. He also

claimed that the actions of the officers violated his Due Process, Equal Protection, freedom of religion, freedom of

expression, and pr

operty rig hts.

On February 10,1998, the WTHSF’s grievance committee recommended that “until such a time that all inmates are required to turn i n earrings and

said policy i

s institutionally implemented, inmate [ Ahkeen ] should get his earring back and not be required to let

the hole close up.” Pursuant to the committee’s r

ecomme ndat ion , th e ear rin g was ret urn ed t o Ah keen the fol low ing d ay. According to Ahkeen, Chapius warned him that the earring would be re-confisca ted.
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 orde red all inmat es to mail their ea

rrings out. The m

emo became effective on

February 17, 1998, and

warned that inmates who had not complied by March 15, 1998, would

be subject to disci

plinary ac tion. The memo was p

osted 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 befor e4 Ahkeen claims that no other pri soner was singl ed out to rece ive a cop y of the m emo or require d to

send their earrings out before the deadl ine.
5 TDOC policy

502.03 states in rel evant part : “Inmates shal l be permitt ed freedom in personal grooming and dress as long a s their ap pearance does not confl ict wi th the institu tion’s requ irem ents for sa fety, security, iden tification, and hygiene.” 4 the day was over. 4

On March 9, 1998, Ahk

een filed suit in the

Cir cu it Court of Laud

erdale County. In his complaint, Ahkeen alleged that his civil rights had been violated by Parker, Chapius, Reynolds, and Turner. Ahkeen allege

d that T DOC policy 504.01 had been selectively enf orced against him as retaliation for the grievance filed against Turne r. In a ddition, Ahkeen asserted that the policy discriminatedon the basis of gender and interfered with his personal liberties. Ahkeen also asserted that TDOC pol icy 5 04.01 contradict ed policy 50

2.03 which allowe

d inmates freedo

m in their grooming and d re ss, absent conflic t with specific pr

ison needs. 5 Ahkeen based his claims on the First, Fourth, and Fourteenth Amendments to the United States Constitution. He soughtinjunctive and declarator

y relief a s well as monetary

damages.

On March 24, 1998, Ahkeen filed a supplemental co

mplaint which adde

d an additional cla

im basedon Turner’s actions following Ah k een’s original complaint. Ahkeen claimed that he was verbally assaulted by Turner, threaten ed with solitary confinement, and subjected to racial and religious slurs. Turner

also apparently threatened to file false grieva nces 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 Amendme

nt of the Tennesse

e Constitution, in add

ition to the previou

sl y all eged violations of the United State s Constitution. Ahkee n added the state l

aw claims of civil r

ights 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, requestin g judgment as a matter of law

because the com

pliant failed to sta

te a cla im up on which relief c

ould6 Reynolds was also a named defendant in Ahke en’s com plaint. Reynolds l ater adopted the Motion for Summary Judgment filed b y the ot her Defendants.
7 Defendant ’s included t his “motion t o dismiss” wit hin the l anguage of thei r motion for summ ar y judgm ent.

8 Defen dants arg ued that t he prison’ s interest in the saf

ety of t he inmates outwei ghed any fi rst amendment right he ld by Ahkeen. According to Defendants, al lowing i nmates to “cross-dr ess ” [ we ar an earring ] would encour

age sexual assaul ts in pri son. 5 be granted. 6 In addition, the Defendants moved to dismiss Ahkeen’s supp lemental c omplaint 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 re quired other inmates to remove their earrings, and that he had personally sought out Ahkee n solely to prevent Ahkeen from getting into trouble over the v

iolation. Chapius an

d Parker both ref

uted Ahkeen’s al

legations that th

eir 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 an y r eferences 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 Ahkeenhad failed to prov ide probative evi

dence to support a

retaliation clai

m . In additio

n, Defendants

challenged Ahkeen’s First Amendment claim regarding free dom of religion and expression. 8 Defendants

argued that

Fourth Amendment

property, p

rivacy, an d Due Process cla

ims asserte d by Ahkeen w

ere unfounded be

cause of the pris

on setting. Defe

ndants also arg

ued th a t Ahkeen’s Equal Protection claims of selective enforcem ent and gender discrimination were unfounded. Finally, Defend ants alleg ed that Turner was not personally involved in the alleged 42 U.S.C § 1983 violations and was therefore not liable; that verba

l harassment was n

ot 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 alter native, Ahkeen6

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 Defe ndan ts’ 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 pro pert y, pri vacy, or due process c laim, or an equal p

rotection claim.

In addition, the court found that the Defendants were sued in their official capacity, a nd thereforedid not qualify as “persons” under § 1983. Pursuant to Tenn. Code. Ann. § 9-8-307(h), the court stated that state officers and employeesare absolutely

immune from liabilit

y for acts o

r omissions within the

scope of their

office or employment, except for certain types of actions that were not alleged by Ahkeen.

Ahkeendid notlearn of the October 5, 1998 order until December 2, 1998. Due to the late notice, Ahkeen’s subsequent Motion for Delayed Appeal was gra

nted by the c

ourt. Ahkeen pre

sents five issues on appeal: whether the trial court erred in dismissing his complaint for f

ailure to comply withTenn. Code Ann. § 41-21-805; whet her the trial court erred in dismissing the complaint for failure to state a claim; whether the t rial court erred in denying Ahkeen’s complaint on summary judgment; whether the court erred in dismissing the complaint based on the findin

g that Defenda

nts
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 appropria

te to note that

some of the parties’ arguments are overlapping, therefore, we h ave c omb ine d th ese i ssu es as need ed fo r cl ari ty.

As a preliminary matter, we must determine the proper scope of review for this case. The order granting D efendants’ Motio n for Summary

Judgment also inclu

des and grants a

Motion to Dismiss. This Motion to Dismiss w as i ncluded wi thin the language of Defendants’ summary judgment motion and a supporting memo.

I. Motion to Dism

iss9 Tenn Code Ann. § 41-21-805 pr ovides: (a) Any inm ate who fil es a claim wit h an affidav it of i nabili ty to pay costs shal l fil e a sepa rate a ffida vit with the follo wing info rmation: (1) A complete li st of ev ery law suit or clai m previously filedby the i nmate, without regard to whet her the inmate was i ncarcerated at the ti me any claim or acti on was fil ed; 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 i n which the suit or clai m was filed; (C) The legal theory on whi ch the rel ief sought was based; (D) The identificati on of each party named in the acti on; and (E) The fina l result of the a cti on, includi ng dismissal as f rivol ous or malici ous under thi s part or otherwise.

(b) If the af

fidav it fi led under t his secti on states t hat a previ ous suit was di smissed as frivol ous 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 curr ent certified copy

of the i nmate's trust account statem ent.

7 A motion to dismiss for

failure to state a

claim upon which r

elief can be g

ranted tests only the legal sufficie

ncy of the c

omplaint, not the strength o f a plaintiff's p

roof. Such a motion

admits the truth of

all relevant and material

averments conta

ined in the complai

nt, but asserts tha

t such facts do not constitute a cause of action as a matter of law. T ENN . R. A PP . P. 13(d ); Stein v. Davidson Hotel Co. , 945 S.W.2d 714, 716 (Tenn.199 7); Pursell v. First Ameri can 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 Motio

n to Dismiss applies o

nly 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 raisedby 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 r

equiring the fil

ing tobe made simultaneously with the filing of the initial complaint. Ahkeen made the mandatory filing before the order g ranting the Defendants

a summary judgment was entered. Defendants do not rea rgue this is sue on appeal. Therefore, for the reason stated above, we find that the trial court e rred in dismissing Ahkeen’s complaint for failure to comply with Tenn. Code Ann. § 41-21-805.

II. Whether Summ

ary Judgment was proper8

All other issues could be properly disposed of only throug h the Motion for Summary Judgment. The trial court c onsidered mate

rial outs ide of the pleadings, including supporting affidavits and finding of f

acts in reaching

its decision on the o

ther issu es. See Knierman v. Leatherwood , 542 S.W.2d 806, 808 (T enn. 1976). Summar

y judgment i

s the appropriate

procedural device to use when the trial court goes outside the

pleadings to rea

ch its decision. Therefore, we now consider whether sum mary judgm ent was properly granted on the other issues in the court below.

The st andards 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 (T enn.1993); T

ENN . R. C IV . P. 56.03. Our primary inquiry is whether there are any g

enuine issues of ma

terial fact. I

t is only afte

r a finding that n

o material facts ar e in dispute that the movant must either aff irma tively negate an essential element of t he non-mov ant's claim or conclusively establish an affir mative defense. Robinson , 952 S.W.2d at 426; Byrd , 847 S.W.2d at 215, n. 5. Id . If the movant successfu lly negates a claimed basis for the suit, the non-movant

may no long

er simply re

ly upon the pleadings, but must thenestablish the existence of the essential elemen

ts 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 necess

ary to gra nt a motion for summary

judgment was not m

et on all claims. As explained below, a genuine issue of material fact regarding the actions of Defendant Turner re main i n dispute. Accordingly, the trial court should not ha

ve granted the

Defendants’ moti

on as to all issues. A. Retaliation Cla

im against Defendant

Reynolds Ahkeenargues on appe

al that the trial c

ourt erred in fin

ding that he did no

t make a viable retaliation claim against Re ynolds. Rey

nolds is the guard

who att empted to confiscate Ahkeen’s earring and t hen ordered him to remove the pin he had inserted to keep the hole open. Ahk ee n argues that Reynolds ’ persona l lack of a retaliatory motive is irrelevant, and that Rey nolds is not9

shielded simply

because he was

acting on a supe

rior’s orders.

In establish ing a retaliation claim under § 1983, a prisoner plaintiff’s burden is different from that of a non-prisone

r plaintiff. A pris

oner plaintiff mus

t s how: (1) that h

e engaged in conduct protected by the First Am endment; ( 2) a chronol ogyof events from which retaliation may reason

ably 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 co nduc t; and (4) a causal connection between the conduct and the adverse action. See Thaddeus-X v. Blatter , 175 F.3d 378, 394 (6 th Cir. 1999); Anderson v. Sundqu ist , 1 F.Supp. 2d 828, 832-833 (W.D. Tenn. 1998).

Ev en assuming that Ahkeen’s wearing of an earring may qualify as p

rotected free

dom o f expression First Amendment conduct, Ahkeen failed to meet the remainin

g requirements . There is
no clear chronology of events that creates a reasonable inference o f retaliatio n. As stated above, Reynolds was unaware of the grievance filed by Ahkeen. His actions, in merely carry ing o ut the order of a superior, do not imply a re taliatorymotive 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 suf

ficiently serious adverse prison action. Ahkeen was allowed to contest the confiscation and gain the return of the earringuntil the policy was uniformly applied. Under these circumstances, we cannot find that the confiscation of an earring would deter a person of ordinary

firmnessfrom continuing protected conduct.

Fin all y, we do not find the requir ed causal conne

ction between the

conduct and the a

dverse action. Ahkeen was only warned of the consequences of f iling other grievan

ces 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. Ah keen has faile d to raise any genuine issues10 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 reli gion clai m and characteriz ed as a freedom of rel igion and e xpression 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 mat eri al f act tha t wo uld prev ent the gran t of a su mma ry judgment . Defendants have fully met their burden in proving that Ahkeen’s allegations do not mee t the el ements of a viable retaliation claim. According

ly, the trial

court’s order is

affirmed on this po

int.
B. Retaliation Claim against Defendant Turner Ahkeenalso 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 h

e stopped filing g

rievances. Ahkeen allege s that Turner thre

atened him with solitary confinement in

addition to threate

ning to file false

reports agains

t him. This claim presen

ts
a muc h closer question u nder the standar

d provided above.

Although indicat

ors of each req

uir e d factor are present, unanswered questions remain. In particular, the e xistence and content of the exchanges between Turner and Ahkeen is in dispute. Fo r 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 Ah keen basis his freedom of religion cla

im on the First Amen

dment of the United

St ate s Constitution. 10 While prison regulations are subject to the First Amendment, courts will not interfere withthe 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 (1 987); Dean v. Campbell , No. 02A019704CV00077, 1997 WL 401960 (Tenn. Ct. App. July 17, 1997). In addition, a n inmate is notexempted from a re

ligion-neutral

policy mere

ly because his practice of religion is burdened by application of the policy. Employment Div., Dept. of Human Res ources of Oreg

on v. Smith , 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed. 2d 876 (1 990). In a ca se such as this, whe

re the inmate’s c

laim is based on confisc

ation of an item, the

inmate must prove th

at the article is e

ssential o r a ce ntral tenant to his religion in order to prevail. See Dean
.

Ahkeen’s allegations do no t constitute viable

claims for a

violation of his rights to freedom11 Tenn. Code. Ann. § 9-8- 307(a)(1)( F) provides: (a)(1) The commission or each commissioner sitt ing

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 "stat

e employees," as such term is defi ned in § 8-42-101(3), falling within one (1) or more of the followi ng categori es:

(F) Ne gligent car e, custo dy or contro l of perso nal prope rty. . .
11 of religion under

the First Amendment. The po

licy in quest

ion is clearly

religion-neutr

al; it prohibits all types of earrings, not just those with religious connotations. This

policy is nei

ther unreasona

ble
no ra rbitrary in light of the atmosphere inside the prison, where clothing and je welry 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 religionclaim under the F irst A mendment. The trial court di d not err in gran

ting Defendant

s’ summary judgment motion on this issue.

D. Fourteenth Am

endment Due Pr

ocess Claim The Fourteenth Amend ment guarante es that a person’s property will not be taken without due processof law. However, a § 198 3 claim is not the pro per vehicle to

recover for deprivation of the pro perty when state law provides a remedy for recover y. Daniels v, Williams , 474 U.S. 327, 10 6 S.Ct. 662, 88 L.Ed.2d 662 (1986). In t his cas e, such a remedy

is available unde

r Tennessee sta

te law, pursuant to Tenn. Code. Ann. § 9-8-307(a)(1)(F). 11 The existence of an adequate remedy under state law renders any § 19 83 claim unte nable. Therefore, the trial court did not err in granting summary judg

ment of this claim.

E. Right to Privac y Claim Ahkeenasserts that

the confiscation of his earring violated his Fourth Amendme

nt right to pri vacy. 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.12

Whileprisoners are afforded t he right to

privacy un

der the Fourth Am

endment, this rig

ht is limited. Pell v. Procunier , 417 U.S. 817, 94 S.Ct. 2804, 41 L.Ed.2d 495 (1974.) As the S u preme Courtstated 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 . Ce rta inl y, any right to privacy

is subject to the ove

rriding need of

th e prison to maintain security and order th rough reasonable prison regulations. We find no support for Ahkeen’s allegations that th e confiscation vio lat ed h is r ight to p riv acy. Therefore, the trial court did not err in granting summary judgment on this cl

aim.
F. Equal Protec tion Claim Ah keen asserts a Fourte

enth Amendment Equ

al Protection cla

im based on the inci

dents described above. Accordingto Ahkeen, he was subjected to unjustified discrimination and unequal treatment and

was denied his right to equal protection under the law. Specificall

y, Ahkeen c

laims that the prison regu

lation was select

ively enfor

ced against him a

nd that the policy

prohibiting male prisoners from wearing earrings was a form of gender disc rimination. SeeTDOC policy 504.0 1
. Defendants asse rt that the regulation was neither selectively enforce d nor a form of gender discrimination.

An Equal Protection claim will lie if a plaintiff can show that he has been b urdened by

state action because he is a member of a suspect or quasi-suspect class or that his fundamental rights have been burd ened 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 (6 th 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 basedon any classification and that he does not assert a violation

of any fund

amental right. Wh

ile
we agree that Ahk een’s argumen t regarding sele ctive enforcem ent does not meet th

e threshold requirement

to present an equal protection claim, we are not persuade d that his cla

im of gender discrimination warrants no discussion. Gender is a quasi-suspect class for equal prot ection purpo ses. See Doe . With t hat in mi nd, we will now address whether Ahkeen’s discrimination claim was properly su

bject to summary

judgment.13

We find it appropriate to note that although this court has not directly addressed this issue before, other courts have

previously h

eld that differe

nt grooming re

gulatio ns for male and female inmates do not trigger the inmate’s Equal Protection rights. Hill v. Estelle , 537 F.2d 214, 215 (5 th Cir. 1976); Poe v. Werner , 386 F.Supp. 1014, 1016 (M.D. Pa. 1974). I ndeed, the physical differences between male and female inmates may requir e different re

gulation in order

to promote safety and hygie

ne. With this is mind, we consider Ahkeen’s status as a prisoner in relation to his claim.

I n or der to be upheld, a prison regulation that infringes upon the Constitutional rights of inmates must be reasonably related to a legitimate gov

ernment 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 failedto demonstrate that

the regulation i

s reasonably

related to any

legitimate gov

ernment interest

. We are unpersua

ded by this ar

gument for the f

ollowing reason

s.

In the court below, Defendants asserted that TDOC policy 504.01 was enacted to “ promote institutional security by discourag ing transsexual dressing by inmates.” Defendants further argued that by discoura

ging transsexua

l dressing and the

refore discour

aging sexual assaults, the policy helps maintain safety and internal security a t the prison. Ahkeen argues that there is no evidence of sexual assaultsoccurring because inmates were wearing earr ings and that conseque nt ly, the interest put forth by the Defendants does not qualify under the test stated above. We disagree.

Th e Court recogn izes that in general, a male wearin g an earring do es not imm ediately sugge s t 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 tra nssexual dressing, e ven in what seems a minor way, is reasonably related to the leg

itimate governme

nt interest in

the welfare andsafety of the inmates. Accordingly, the trial court did not err in granting summary judgment on Ahkeen’s equal protection claims. G. Verbal Harassm ent We find it unnecessary to fully address Ahke en’s verbalharassment claim. Ahkeen bases14

his claims solely

on the racial and

religious slurs h

e was purportedl

y subjected

to by Turner.

These allegations do not give ri se to a claim under 42 U.S.C. § 1983. Verbal threats, no matter how offensive, do not amount to an a ctionable violation of Ahkeen’s rights. See Emmons v. McLa ughlin , 874 F.2d 351, 352 (6 th 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 (6 th Cir. 1999) (verbal harassment may be acti

onable if i t mo tiv ate d in sub sta nti al p art by a desire to punish an individual for exercise of a Constitutional right). Instead, it appears that the ongoing antagonistic re

lationship 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 w

hen an inmate file

s a civil suit. Bradfield v. Dotson , No. 02A01-9707-CV-00152, 1998 WL 63521 at *3 (Tenn. Ct. App. February 17, 1998); Re id v. State of Tennessee , No. 02A 01-9801-BC-002931999 WL 257628 (Tenn. Ct. App. April 28, 1999) . In addition, t he trial court ca

n limit discovery

that is unreasona

bly burdensome, duplicative, or c umulative in relat

ion to the posi

tions of the parties or the issues asserted. See T ENN . R. C IV . 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 asse rts that the trial court erred in dismissing his complaint on the gr o unds that Defendants

were sued for mo

ney damag

es in their offici

al capacities a

s state employ

ees. Ahkeenalleges that he

is suing the Defendants in their individualcapacities, and that his request for12 Tenn. Code. Ann. § 9-8-307(h) provides in relevant part: State offi cers and employees are

abs olute ly immune from liabil ity for acts or omissions wit hin the scope of the offi cer'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 relief is not limited to money damag e s .

A suit for money damages pursuant to 42 U.S.C. § 1983, cannot be maintained ag

ainst states, state agencies, or e

mployees of

the state in

their official capacity. Will v. Michigan Dept. o f State Police , 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (19 89); Dean v. Campbell, No. 02A019704CV00077, 1997 WL 401960 (Tenn . Ct . App. July 17, 1 997). In other words, state employeessued in their official capacities for monetary damag es do not qualify as “persons” under 42 U.S.C. § 1983. See 42 U.S.C. § 1983 . Con vers ely, a state employee can be sued in his official capacity for declaratory or injunctive relief. Wi ll , at 70 n. 10 . In addition to the limitations mentioned above, Tennessee state law further shelters state em ployees fro m liability. See Tenn. Code Ann . § 9-8-3 07(h) 1 2

.

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 fa

il. However, it is clear from the record that Ahkeen is seeking declaratory andinjunctive 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 remai n 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 forego

ing, the judgme

nt of the trial cour

t is hereby af

firmed 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 whi ch ex ecut ion may i ssu e ifnece ssa ry.16 HIGH ERS, J.

CONCUR:

FARMER

, J.

LIL LARD, J.