CHARLES MONTAGUE, ) Davidson Chancery
) No. 96-3872-III
Plaintiff/Appellant, )
)
VS. )
)
TENNESSEE DEPARTMENT OF ) Appeal No.
CORRECTION and WARDEN ) 01A01-9711-CH-00667
HOWARD CARLTON, )
Defendants/Appellants.
)
)
FILED
May 29, 1998
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
Charles Montague, #142349
7475 Cockrill Bend Industrial Road
Nashville, Tennessee 37243
PRO SE/PLAINTIFF/APPELLANT
Sohnia W. Hong
Assistant Attorney General
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, Tennessee 37243
ATTORNEY FOR DEFENDANTS/APPELLEES
MODIFIED, AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
CHARLES MONTAGUE, ) Davidson Chancery
) No. 96-3872-III
Plaintiff/Appellant, )
)
VS. )
)
TENNESSEE DEPARTMENT OF ) Appeal No.
CORRECTION and WARDEN ) 01A01-9711-CH-00667
HOWARD CARLTON, )
)
Defendants/Appellants. )
OPINION
The plaintiff, a prisoner in the custody of the Tennessee Department of Correction,
brought this action against the Department and its Commissioner seeking a declaratory judgment
that he is entitled to a refund of $64.00 charged against his custodial account for a key lost by
the prisoner.
The Trial Court sustained a motion to dismiss for failure to state a claim for which relief
can be granted.
The complaint states:
6) On September 4, 1995, I, Charles Montague, filled out
a withdrawal for $64.00 Dollars. The money came from my
Inmate Trust Fund Account that’s within the Tennessee
Department of Correction. The money was for the
replacement of a key to room number 12-201, at Northeast
Correctional Center. I had loss the key to said room on the
above date.
7) On September 5, 1995, the lock and key was replaced
by Sgt. Baker. The key and lock however, was reassigned to
another door/room within Northeast Correctional Center.
8) On September 21, 1995, the key that I lost was found
and turned in to operations at Northeast Correctional Center,
and the unit management team was notified and they retrieved
the key.
9) On September 21, 1995, plaintiff filled out a inmate
information request form to Warden Howard Carlton, and Mr.
Carlton routed it to Sgt. Baker. Contained on the information
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request form was my request for a refund. However, Sgt.
Baker informed me that I would not be receiving any refund
because the lock cylinder and key was in use in another door
at N.E.C.C.
The order of the Trial Court states:
In the above-captioned matter the petitioner filed a
petition for declaratory judgment challenging the policies of
the Tennessee Department of Correction concerning lost keys.
He seeks return of $54.00 withdrawn from his inmate trust
account for the replacement of a lost key.
Tennessee Code Annotated section 4-5-223 and 4-5-
224 allow an individual to petition an agency for declaratory
order regarding the applicability of the statute, rule or order
and then, if denied, file an action in the Chancery Court of
Davidson County. But to use this procedure the policies
under attack must be “rules” as contemplated by the Uniform
Administrative Procedures Act. Tennessee Code Annotated
section 4-5-102(10) defines a “rule” as an agency statement
of general applicability that implements or prescribes law or
policy or describes the procedures or practice requirements of
the agency. It does not include “statements concerning only
the internal management of state government.”
In the case at bar the policy for charging inmates for
keys and lock cylinders does not fit within the definition of
“rules” as prescribed by Tennessee Code Annotated section
4-5-102(10). Accordingly, the policies are not subject to
review for declaratory relief.
It is therefore ORDERED that the above-captioned
matter is dismissed with prejudice. In that the petitioner has
qualified to proceed as a pauper, the Court assesses only state
litigation tax against the plaintiff.
This Court agrees with the conclusion of the Trial Judge that a suit for declaratory
judgment is not an appropriate vehicle for recovery of $64.00 if incorrectly charged to plaintiff.
Moreover, even if the Trial Court should have granted any relief due under the facts, the facts
alleged in the complaint do not support a refund of the $64.00 as claimed.
The loss or misplacement of a key to a lock on a door in a correctional institution is a
serious matter, and requires a replacement lock operated by a different key. The finding of the
lost key does not obviate the expense of the new lock.
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Despite the pauper’s oath, the plaintiff is liable for all costs of this proceeding. This
appeal is declared to be a frivolous appeal requiring the assessment of attorney fees on remand.
The judgment of the Trial Court is modified to render judgment against plaintiff for all
costs accrued in that Court. As modified, said judgment is affirmed. Costs of this appeal are
taxed against the plaintiff. The cause is remanded to the Trial Court for ascertainment of fees
for frivolous appeal and the entry and enforcement of judgment in conformity with this opinion.
MODIFIED, AFFIRMED AND REMANDED.
_________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________
BEN H. CANTRELL, JUDGE
CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
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