                    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.



CONCUR:




FARMER, J.




LILLARD, J.




              16
