                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  On-Briefs January 6, 2006

      SHERMAN ALEXANDER HENDERSON v. ROSS BATES, ET AL.

               A Direct Appeal from the Circuit Court for Lauderdale County
                    No. 5923    The Honorable Joseph H. Walker, Judge



                  No. W2005-01506-COA-R3-CV - Filed February 17, 2006


        Appellant is an inmate in the custody of the Tennessee Department of Correction. Appellant
filed a Title 42 U.S.C. §1983 claim against the Appellee/Associate Warden and Appellee/Pre-
Release Coordinator alleging a violation of the inmate’s civil rights arising from a change in
inmate’s custody status. The trial court granted the Appellees’ Tenn. R. App. P. 12.02 Motion to
Dismiss. Inmate appeals. We affirm.


      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Sherman A. Henderson, Pro Se

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solictor General and Bradley
W. Flippin, Assistant Attorney General for Appellee, Ross Bates and Paul Barrett

                                            OPINION

         Sherman Alexander Henderson (“Appellant”) is an inmate in the custody of the Tennessee
Department of Correction (the “TDOC”). Ross Bates is an Associate Warden with the TDOC. Paul
Barrett (together with Ross Bates, “Appellees”) is a Pre-Release Counselor with the TDOC. On
November 30, 2004, Mr. Henderson filed a “Complaint for Violation of Civil Rights Under Title 42
USC §1983" (the “Complaint”) against Messrs. Bates and Barrett. In his Complaint, Mr. Henderson
asserts that Messrs. Bates and Barrett conspired to deprive Mr. Henderson of his constitutional right
to equal protection under the law. Specifically, Mr. Henderson asserts that Messrs. Bates and Barrett
willfully and maliciously discriminated against Mr. Henderson by changing his custody status on
December 30, 2003. Mr. Henderson alleges that he was treated differently than similarly situated
inmates and that this differential treatment violated his right to equal protection under the law.
        On May 25, 2005, Messrs. Bates and Barrett filed a “Motion to Dismiss” (the “Motion”),
along with a Memorandum of Law in support thereof. In their Motion, Messrs. Bates and Barrett
assert that they have “absolute immunity from suit as [] state employee[s] and sovereign immunity
as [] officer[s] of the State.” Further, the Motion states that:

               ...Mr. Henderson fails to state an equal protection claim. An inmate
               has no constitutional right to avoid administrative segregation,
               placement in a particular unit of the prison, or a particular security
               classification. As Mr. Henderson fails to allege a fundamental
               constitutional right or liberty interest at stake, he fails to state an
               equal protection claim. Additionally, Mr. Henderson has not alleged
               that he was discriminated against based on a suspect classification.
               His movement and change in custody status was rationally related to
               penological interests.

By Order of May 26, 2005, the trial court granted the Motion to Dismiss and adopted the legal
analysis set out in the Memorandum of Law.

       Mr. Henderson appeals, pro se, and raises three issues for review as stated in his brief:

               1. Did the Circuit Trial Court err when it deemed defendants’ were
               absolutely immune from this §1983 action?

               2. Did the Circuit Trial Court err when it dismissed plaintiff’s civil
               right action before he could conduct civil discovery?

               3. Did the Circuit Trial Court err in not determining whether
               plaintiff[’s] agreement in signing Form CR-0996 “Department of
               Correction Assignment of Responsibility” form that he entered
               constituted a conditional contract in his Minimum Direct, Trusty
               custody and annex placement, so long as he maintain[ed] good
               behavior while housed at an annex?

        We perceive the sole issue to be whether the trial court erred in dismissing Mr. Henderson’s
Complaint for failure to state an equal protection claim. It is well settled in Tennessee that a motion
to dismiss a complaint for failure to state a claim upon which relief can be granted tests the legal
sufficiency of the complaint. It admits the truth of all relevant and material allegations but asserts
that such allegations do not constitute a cause of action as a matter of law. See Riggs v. Burson, 941
S.W.2d 44 (Tenn. 1997). Obviously, when considering a motion to dismiss for failure to state a
claim upon which relief can be granted, we are limited to the examination of the complaint alone.
See Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708 (Tenn. Ct. App. 1990). The basis for
the motion is that the allegations in the complaint considered alone and taken as true are insufficient
to state a claim as a matter of law. See Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975). In


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considering such a motion, the court should construe the complaint liberally in favor of the plaintiff,
taking all the allegations of fact therein as true. See Cook Uithoven v. Spinnaker’s of Rivergate,
Inc., 878 S.W.2d 934 (Tenn. 1994).

Equal Protection Claim

        The Supreme Court of Tennessee has stated that the Tennessee Constitution's equal
protection provisions confer "essentially the same protection" as the equal protection clause of the
United States Constitution. Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 152
(Tenn.1993). Equal protection requires that persons similarly situated be treated the same under the
law, or that the state treat persons under like circumstances and conditions the same. Genesco, Inc.
v. Woods, 578 S.W.2d 639, 641 (Tenn.1979), superseded on other grounds by Combustion Eng'g,
Inc. v. Jackson, 705 S.W.2d 655 (Tenn.1986); Jaami v. Conley, 958 S.W.2d 123, 126
(Tenn.Ct.App.1997). Nevertheless, "[t]he Fourteenth Amendment guarantees equal laws, not equal
results." Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d
870 (1979), aff'd, Feeney v. Personnel Adm'r of Mass., 445 U.S. 901, 100 S.Ct. 1075, 63 L.Ed.2d
317 (1980).

        Equal protection challenges are based upon governmental classifications. The classic analysis
for such challenges involves the application of differing standards depending upon the effect. That
analysis requires strict scrutiny only when the classification interferes with a fundamental right or
operates to the peculiar disadvantage of a suspect class. State v. Tester, 879 S.W.2d 823, 828
(Tenn.1994). The standard of reduced scrutiny applies in other situations requiring only that a
rational basis exist for the classification, or that the classification have a reasonable relationship to
a legitimate state interest. Id. Unless a suspect classification or denial of a fundamental right to a
particular class is involved, equal protection attacks on prison regulations are analyzed to determine
whether distinctions between groups have a rational basis, or, more particularly, whether they are
reasonably related to penological interests. Lee v. Young, No. 99-6012, 2002 WL 1781335 (6th Cir.
Nov. 6, 2000) (citing Williams v. Lane, 851 F.2d 867, 877 (7th Cir.1988)).

        It is well settled that prisoners do not have the constitutional right to be incarcerated in any
particular institution. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532 (1976). The United
States Supreme Court has repeatedly held that the ability to transfer prisoners is essential to prison
management, and that requiring hearings for such transfers would impermissibly interfere with
prison administration. See, e.g., Ward v. Dyke, 58 F.3d 271 at 274 (citing Meachum v. Fano, 427
U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct.
1741, 75 L.Ed.2d 813 (1983); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466
(1976)). “Whatever expectation the prisoner may have in remaining at a particular prison so long
as he behaves himself, it is ephemeral and insubstantial to trigger procedural due process protections
as long as prison officials have discretion to transfer him for whatever reason or for no reason at all."
Ward v. Dyke, 58 F.3d 271 (citing Meachum v. Fano, 42 U.S. at 228, 96 Sup.Ct. at 2540).




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        Absent an allegation of interference with a fundamental right or discriminatory treatment
based on suspect classification, a plaintiff cannot maintain an equal protection claim because he or
she was treated differently from others alleged to be similarly situated. Booher v. U.S. Postal Serv.,
843 F.2d 943, 944 (6th Cir.1988). In Booher, a discharged probationary employee alleged that he
was "singled out" for discharge and other probationary employees with worse attendance records
were not discharged. Id. The Sixth Circuit noted that Booher sought to make out a violation of equal
protection by claiming he was treated differently from other similarly situated employees. The Court
concluded that Booher’s claim ultimately failed because there was no claim that Booher was
victimized because of some suspect classification, which is an essential element of an equal
protection claim, and that, even assuming there was an unjustified action taken against Booher, this
single action, without more, cannot form the basis of an equal protection claim. Id. The Booher
Court reiterated that the equal protection concept does not create a classification of persons who
received better treatment. Id. In other words, an equal protection claim does not arise simply because
of differing treatment.

        This reasoning has been applied in the context of a prisoner challenging his reclassification
and transfer by prison officials. Newell v. Brown, 981 F.2d 880 (6th Cir.1992), cert. denied, 510 U.S.
842, 114 S.Ct. 127, 126 L.Ed.2d 91 (1993). After first determining that the prisoner did not have a
constitutionally protected liberty interest, the court held that "the plaintiff could not make out a
violation of his equal protection rights simply by showing that other inmates were treated
differently." Id. Relying upon Booher, the Newell Court held that the prisoner would have to show
he was reclassified because of some suspect classification. Id. Similarly, a prisoner alleging
selective enforcement of a prison regulation cannot sustain an equal protection claim absent an
assertion and a showing of some purposeful discrimination. Fletcher v. Chartrand, 869 F.2d 1490
(6th Cir.1989) (citing McCleskey v. Kemp, 481 U.S. 279, 109 S.Ct. 1756 (1987)).

        In the instant case, not only does Mr. Henderson not have a constitutional right to a particular
placement in the prison system, but he also has not alleged that he was treated more harshly than
others because he is a member of a suspect class. Mr. Henderson only alleges that he was “singled
out and victimized because of his classification within his group of prisoners convicted of first
degree murder.” First degree murderers are not protected as a suspect class. Consequently, there
need only be a rationale basis for Mr. Henderson’s custody status being changed that is reasonably
related to a penological interest. Lee v. Young, No. 99-6012, 2002 WL 1781335 (6th Cir. Nov. 6,
2000) (citing Williams v. Lane, 851 F.2d 867, 877 (7th Cir.1988)).

         The TDOC is vested with wide discretion in the management and supervision of penal
institutions. See T.C.A. §4-6-102 (2005). Mr. Henderson asserts that he was moved “to a more
secure housing unit...due to the parole board having declined plaintiff for seven (7) years[.]”
Considering the effect of a decline of parole on a prisoner’s propensity to escape or to act out
inappropriately, movement to a more secure housing unit or a change in custody status of the inmate
would certainly be rational under the circumstances and would serve the legitimate penological
interest of maintaining security and order. Consequently, and for the foregoing reasons, we find that



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the trial court did not err in finding that Mr. Henderson fails to state a claim for violation of his right
to equal protection.

        Having concluded that the trial court properly dismissed Mr. Henderson’s claim on the basis
that Mr. Henderson failed to state a cause of action for equal protection violation, we also conclude
that the trial court did not err in suspending discovery and/or in granting the Motion to Dismiss
before Mr. Henderson was allowed to respond to same. As discussed above, a Tenn R. Civ. P. 12.02
motion to dismiss tests the legal sufficiency of the complaint only. Consequently, a response by Mr.
Henderson and/or further discovery would have worked no benefit to him.

        For the foregoing reasons, we affirm the Order of the trial court dismissing Mr. Henderson’s
Complaint. Costs of this appeal are assessed against the Appellant, Sherman Alexander Henderson,
and his surety.




                                                 __________________________________________
                                                 W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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