                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                        Assigned on Briefs September 20, 2010

           CARL SUTHERLAND v. CHERRY LINDAMOOD ET AL.

                   Appeal from the Circuit Court for Wayne County
                      No. 02-4390     Stella L. Hargrove, Judge


              No. M2009-02214-COA-R3-CV - Filed December 17, 2010


An inmate filed suit, claiming that he was discriminated against in job assignments and that
his First Amendment rights were violated in that he was retaliated against for making
complaints. The trial court granted the defendants’ motion to dismiss. We affirm.


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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and R ICHARD H. D INKINS, J., joined.

Carl Sutherland, Mountain City, Tennessee, Pro Se.

James Irvin Pentecost and Jon A. York, Jackson, Tennessee, for the appellees, Cherry
Lindamood, Gene Maples, Teresa Cogswell, Leigh Kilzer, and Heather Reeves.

                                         OPINION

        Tennessee inmate Carl Sutherland filed suit claiming that he was denied his job
request in retaliation for his use of the prison grievance procedure. His claim was dismissed
for failure to state a claim under Tenn. R. Civ. P. 12.

        Motions based on Rule 12.02(6) test only the legal sufficiency of the complaint and
not the strength of the plaintiff’s evidence. Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997).
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. Wolcotts Fin. Servs., Inc.
v. McReynolds, 807 S.W.2d 708, 710 (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, 190 (Tenn. 1975).
Accordingly, when considering a Rule 12.02(6) motion, “‘courts should construe the
complaint liberally in favor of the plaintiff, taking all allegations of fact as true, and deny the
motion unless it appears that the plaintiff can prove no set of facts in support of her claim
that would entitle her to relief.’” Temlock v. McGinnis, 211 S.W.3d 238, 240 (Tenn. Ct.
App. 2006) (quoting Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997)).
Because the factual allegations of the complaint are taken as true, the issues raised on a
motion to dismiss are questions of law and not fact. Stein, 945 S.W.2d at 716. We review
questions of law de novo upon the record with no accompanying presumption of correctness.
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

        The complaint’s factual allegations, which we must take as true for purposes of the
motion to dismiss, are as follows. On January 31, 2008, inmate Carl Sutherland filled out
a job register form for a commercial cleaning position. In early February, he was approved
as qualified for the position and placed on the register placement report. In mid-March,
Sutherland noticed that inmates who requested jobs after he did were getting jobs when he
had not. He sent a request form and letter to job coordinator Heather Reeves and clerk
Teresa Cogswell inquiring about being skipped over for employment. After receiving no
reply, Sutherland got a pass and visited their offices. Reeves told him that there was a job
opening in the visitation gallery, but he would not get that job because he had been guilty of
a disciplinary infraction the year before and she did not want “your kind” working in the
gallery. Reeves asked if he wanted to work in the kitchen. Sutherland explained about the
commercial cleaning job, and Reeves replied that the kitchen job was the only place she
would put “your kind.”

        In mid-April, Sutherland again wrote Reeves and Cogswell about being skipped over
for a commercial cleaning position. He also sent a letter to Warden Lindamood stating that
he was being discriminated against in job assignments. Apparently, neither communication
was answered. In early May, Sutherland spoke with Cogswell, who told him that “she’ll give
whomever she pleases a job qualified or not, and if [Sutherland] came back to her office or
send [sic] any more letters she’ll put his Black Ass in a kitchen job or school.” About the
same time, Sutherland mailed a letter to Warden Lindamood stating that Reeves and
Cogswell might retaliate against him. On June 20, he sent the warden another letter stating
the same thing. That same day, he sent a letter to Reeves and Cogswell with a copy of the
department policies he felt they were violating. Three days later he was placed in school.

       On June 23, Sutherland filed a grievance against Reeves and Cogswell for
discrimination and retaliation in job placement. His grievance was returned unprocessed two
days later with a note attached that stated “Education takes priority over job placement.”
Sutherland appealed and the grievance was processed June 27. The reply to his grievance
said he did not have a G.E.D. and, therefore, was placed in an education class. On July 23,

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Sutherland filed a grievance against the grievance chairperson, Leigh Kilzer, for not
conducting a grievance hearing. That grievance was denied August 11. A letter to
Commissioner Hodges also did not result in a response satisfactory to Sutherland. Sutherland
filed a suit under 42 U.S.C. § 1983, claiming a violation of his due process and equal
protection rights under the Fourteenth Amendment to the United States Constitution, in that
he was discriminated against in job assignments, and a violation of his First Amendment
rights, in that he was retaliated against for making complaints.

       The only basis for Sutherland’s discrimination claims is the alleged one-time use of
the term “black ass.” The mere use of abusive language by prison officials, while
unprofessional and distasteful, cannot support liability under § 1983. Davis v. Little, No. 09-
2045-STA/cgc, 2009 WL 2849641, at *4 (W.D. Tenn. September 1, 2009) (citing Ivey v.
Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (holding that verbal abuse or harassment does not
constitute punishment under the Eighth Amendment); Martin v. Sargent, 780 F.2d 1334,
1338 (8th Cir. 1985) (holding that verbal threats to reclassify a prisoner are non-cognizable
under § 1983)).1 The trial court properly dismissed the discrimination claim.

        Sutherland also claims that the defendants punished him by not giving him a job in
retaliation for “making complaints,” apparently by filing grievances and sending letters to
prison officials.

       A retaliation claim essentially entails three elements: (1) the plaintiff engaged
       in protected conduct; (2) an adverse action was taken against the plaintiff that
       would deter a person of ordinary firmness from continuing to engage in that
       conduct; and (3) there is a causal connection between elements one and two-
       that is, the adverse action was motivated at least in part by the plaintiff's
       protected conduct.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).

       The first requirement is not met in this case. A prisoner has no constitutionally
protected right to file prison grievances. Mosby v. Colson, No. W2006-00490-COA-R3-CV,
2006 WL 2354763, at *9 (Tenn. Ct. App. Aug. 14, 2006).

        The second requirement is also problematic for Sutherland to meet. Does the failure
to get the job of one’s choice rise to the level of an adverse action, and if so, would it deter
a person of ordinary firmness from continuing to file grievances? Sutherland has no
constitutional right to the prison job of his choice or any job at all. See Newsom v. Norris,

       1
           Of course, abusive language may be evidence of discrimination.

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888 F.2d 371, 374 (6th Cir. 1989). The assignment of employment to an inmate is a matter
of discretion. Miller v. Campbell, 108 F. Supp. 2d 960, 967 (W.D. Tenn. 2000). We
conclude that the failure to get the prison employment of one’s choice is not an action that
would deter a person of ordinary firmness from continuing to file grievances. Indeed,
Sutherland himself continued to file grievances after he did not get the commercial cleaning
position.

       Sutherland’s complaint does not meet the requirements for a retaliation claim.

       The trial court is affirmed. Costs of appeal are assessed against the appellant, Carl
Sutherland, for which execution may issue if necessary.


                                                     ______________________________
                                                          ANDY D. BENNETT, JUDGE




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