Romalis Gray v. Tennessee Department of Correction

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 1, 2013

ROMALIS GRAY v.
TENNESSEE DEPARTMENT OF CORRECTION ET AL.

Appeal from the Chancery Court for Morgan County
No. 11-158 Frank V. Williams, III, Chancellor

No. E2012-00425-COA-R3-CV-FILED-OCTOBER 17, 2013

The petitioner, a state prison inmate, appeals the trial court’s dismissal of his petition for
declaratory order, in which he alleged that the respondents, Tennessee Department of
Correction (“TDOC”) and Morgan County Correctional Complex (“MCCX”), denied his due
process rights and violated TDOC policies when he was placed on administrative segregation
following a disciplinary hearing. The trial court found that the petitioner had failed to pay
court costs from a previously filed action and dismissed his petition pursuant to Tennessee
Code Annotated § 41-21-812 (2010). Discerning no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Romalis Gray, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and Shauna Jennings, Assistant Attorney General, Nashville, Tennessee, for the appellees,
Tennessee Department of Correction et al.
 OPINION

I. Factual and Procedural Background

The petitioner, Romalis Gray, was housed at MCCX at the time of filing this action.1
He was placed on administrative segregation at MCCX following an internal disciplinary
board hearing on July 8, 2011. After exhausting his internal appeals of the disciplinary board
decision, Mr. Gray filed a petition for a declaratory order with the TDOC commissioner,
pursuant to the Uniform Administrative Procedures Act (“UAPA”). See Tenn. Code Ann.
§ 4-5-223(a) (2010) (“Any affected person may petition an agency for a declaratory order as
to the validity or applicability of a statute, rule or order within the primary jurisdiction of the
agency.”). The commissioner referred Mr. Gray’s petition to TDOC’s general counsel.

In a letter dated August 23, 2011, the State, through TDOC’s general counsel, refused
Mr. Gray’s request for a declaratory order and denied his petition, stating that, inter alia, a
prisoner’s disciplinary proceeding was not a contested case eligible for a hearing under the
UAPA. See Tenn. Code Ann. § 4-5-223(a) (providing that upon petition for a declaratory
order, the agency shall either convene a contested case hearing or refuse to issue a
declaratory order); Tenn. Code Ann. § 4-5-106(b) (2010) (stating that TDOC disciplinary
proceedings shall not be considered “contested cases” under the UAPA); see also Rhoden
v. State Dep’t of Corr., 984 S.W.2d 955, 956 (Tenn. Ct. App. 1998) (“A prisoner disciplinary
proceeding cannot be reviewed directly under the Uniform Administrative Procedures Act
because the Act removes such proceedings from the definition of a contested case.”).

On October 5, 2011, Mr. Gray filed two petitions with the Morgan County Chancery
Court, opening companion case files. The instant action, trial court case number 11-158, was
opened by the filing of a “Petition for Declaratory Order.” The companion case, trial court
case number 11-159, was opened with a “Petition for Writ of Certiorari.” 2 In both petitions,
Mr. Gray requested review of the disciplinary board’s decision, averring that TDOC and
MCCX had denied his due process rights and violated TDOC policies when placing him on
administrative segregation.

1
Mr. Gray has since been transferred to another state prison facility.
2
We have gleaned procedural information regarding the companion case from the archived appellate
record for said case, number E2012-00426-COA-R3-CV, and the Appellate Court Clerk’s procedural records.
See Counts v. Bryan, 182 S.W.3d 288, 293 (Tenn. Ct. App. 2005) (holding that pursuant to Rule 201 of the
Tennessee Rules of Evidence, a court may take judicial notice of facts “capable of accurate and ready
determination” in its own proceedings).

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 In his appellate brief and in a recent pro se letter to this Court, Mr. Gray asserts that
he only intended to file the petition for writ of certiorari and that the petition for declaratory
order was an attachment, a copy of the petition he sent to the TDOC commissioner. The
petition for declaratory order, however, stated on its face that it was being filed pursuant to
Tennessee Code Annotated § 4-5-225 of the UAPA. Section 225 provides for the filing of
a petition for declaratory judgment concerning the validity or applicability of an agency’s
statute, rule, or order to the chancery court of Davidson County once a complainant has
petitioned the agency involved for declaratory judgment and been refused. Tenn. Code Ann.
§ 4-5-225(a).3 Whatever Mr. Gray’s intent, the Morgan County Chancery Court received two
petitions from him for filing on October 5, 2011, commencing two actions. See Tenn. R.
Civ. P. 3.

In the instant action, the State filed a motion to dismiss the petition, alleging that Mr.
Gray owed outstanding court costs of $172.12 in connection with a prior case filed in the
Davidson County Chancery Court and that pursuant to Tennessee Code Annotated § 41-21-
812, Mr. Gray was barred from pursuing his petition. On December 9, 2011, Mr. Gray filed
a response to the State’s motion to dismiss, along with a motion for appointment of counsel.
On December 28, 2011, Mr. Gray filed a “Motion to Alter or Amend Petition of Common
Law Certiorari,” a second motion for appointment of counsel, and a motion for summary
judgment. The State filed a response to Mr. Gray’s motions, again arguing that Mr. Gray was
barred from pursuing the instant action because of his outstanding court costs from a
previous case.

The trial court entered an order dismissing the petition for writ of certiorari in the
companion case on January 10, 2012, finding that the petition was barred by Tennessee Code
Annotated § 41-21-812 because Mr. Gray owed outstanding court costs to the Davidson
County Chancery Court for a previous action. In the instant case, the trial court entered its
order dismissing Mr. Gray’s petition for declaratory order on January 20, 2012, similarly
finding the petition statutorily barred due to Mr. Gray’s unpaid court costs.

Mr. Gray filed a notice of appeal on February 17, 2012. The notice referenced both
trial court case numbers, initiating appeals of the final judgments entered in both actions. See
Tenn. R. App. P. 3(e). Mr. Gray’s appeal of the trial court’s dismissal of his petition for writ
of certiorari was dismissed by this Court as untimely because his notice of appeal was not
filed within thirty days of the trial court’s final judgment. See Gray v. Tenn. Dep’t of Corr.,

3
The Tennessee Supreme Court has held that, contrary to the language of Tennessee Code Annotated
§§ 4-2-223 and -225, questions of the validity (as opposed to applicability) of statutes need not be brought
by petition to an agency before being brought to the chancery court because of the constitutional nature of
such questions. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 846 (Tenn. 2008).

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No. E2012-00426-COA-R3-CV, 2012 WL 1820864 (May 18, 2012) (mem. op.) (citing Tenn.
R. App. P. 2; Tenn. R. App. P. 4(a); Cobb v. Beier, 944 S.W.2d 343, 344 n.2 (Tenn. 1997)).4

Subsequently, upon notification by the trial court in September 2012 that Mr. Gray
had filed four motions on January 20, 2012, the day of the dismissal order’s entry in the
instant case, this Court remanded this action to the trial court by an order entered October 12,
2012, for disposition of the pending motions. The trial court denied three of Mr. Gray’s
motions–for jury trial as of right, leave to take deposition, and judgment on the record–as
moot pursuant to the Order of Dismissal. The trial court considered the fourth motion, which
was ostensibly for a new trial, as a motion to alter or amend the judgment pursuant to
Tennessee Rule of Civil Procedure 59.04 because there was no trial in the case. The trial
court denied the motion to alter or amend the judgment, returning jurisdiction to this Court.

II. Issue Presented

Relevant to his appeal of the trial court’s dismissal of the instant action, Mr. Gray
presents one issue, which we restate as follows:

Whether the trial court erred by dismissing the petition for declaratory order,
pursuant to Tennessee Code Annotated § 41-21-812, on the basis that the
petitioner owed outstanding court costs.

III. Standard of Review

The issue presented is a question of law. We review questions of law, including those
of statutory construction, de novo with no presumption of correctness. Tenn. R. App. P.
13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). Mr. Gray states in his appellate
brief that he is appealing the dismissal of his petition for writ of certiorari. Although the
instant action was initiated as a petition for declaratory order, we note that the proper vehicle
for judicial review of a state prison disciplinary board decision is a petition for common law
writ of certiorari. See Tenn. Code Ann. §§ 27-9-101, -102 (2010) (providing for judicial
review of “any final order or judgment of any board or commission” functioning under
Tennessee law via petition for certiorari); Rhoden, 984 S.W.2d at 956 (“The proper vehicle
for challenging a disciplinary action is a petition for a common law writ of certiorari . . . .”).

4
Rule 10 of the Rules of the Court of Appeals provides: “This Court, with the concurrence of all
judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum
opinion when a formal opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated ‘MEMORANDUM OPINION,’ shall not be published, and shall not be cited
or relied on for any reason in any unrelated case” (cited here in related case).

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As noted above, Mr. Gray’s reliance on UAPA in seeking a declaratory order was misplaced
because he was challenging the result of a disciplinary hearing rather than a statute, rule, or
order. See Tenn. Code Ann. § 4-5-225; Rhoden, 984 S.W.2d at 957.

For these reasons and because both Mr. Gray and the State acknowledge on appeal
that Mr. Gray was actually seeking a common law writ of certiorari, we determine that the
proper standard of review for the instant action is the standard for reviewing dismissal of a
petition for common law writ of certiorari. “A writ of certiorari is an order from a superior
court to an inferior tribunal to send up a complete record for review, so that the reviewing
court can ascertain whether the inferior tribunal has exceeded its jurisdiction or acted
illegally, fraudulently, or arbitrarily.” State v. Lane, 254 S.W.3d 349, 354 (Tenn. 2008). A
common law writ of certiorari is an extraordinary judicial remedy with a limited scope of
judicial review. Heyne v. Metro. Nashville Bd. of Public Educ., 380 S.W.3d 715, 728 (Tenn.
2012). As our Supreme Court has explained:

A common-law writ of certiorari is not available as a matter of right. Boyce
v. Williams, 215 Tenn. 704, 713-14, 389 S.W.2d 272, 277 (1965); State ex rel.
Karr v. Taxing Dist. of Shelby Cnty., 84 Tenn. 240, 246 (1886). The petition
for a writ is addressed to the trial court’s discretion. Biggs v. Memphis Loan
& Thrift Co., 215 Tenn. 294, 302, 385 S.W.2d 118, 122 (1964); Gaylor v.
Miller, 166 Tenn. 45, 50, 59 S.W.2d 502, 504 (1933). Accordingly, appellate
courts must review a trial court’s decision either to grant or to deny a petition
for common-law writ of certiorari using the “abuse of discretion” standard of
review. State v. Lane, 254 S.W.3d at 354.

Id. at 730.

In reviewing pleadings, we “must give effect to the substance, rather than the form
or terminology of a pleading.” Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012)
(citing Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn. 2010)).
We note also that pleadings “prepared by pro se litigants untrained in the law should be
measured by less stringent standards than those applied to pleadings prepared by lawyers.”
Stewart, 368 S.W.3d at 463 (citing Carter v. Bell, 279 S.W.3d 560, 568 (Tenn. 2009);
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003); Young v. Barrow, 130
S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Parties proceeding without benefit of counsel are
“entitled to fair and equal treatment by the courts,” but we “must not excuse pro se litigants
from complying with the same substantive and procedural rules that represented parties are
expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003).

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 IV. Action Barred by Outstanding Court Costs

In granting the motion to dismiss, the trial court found that Mr. Gray’s petition was
barred because he owed outstanding court costs to the Davidson County Chancery Court in
the amount of $172.12 relative to a previous case. Mr. Gray does not dispute the State’s
evidence that he owes said court costs. He instead contends, inter alia, that the trial court
erred in dismissing the instant petition because, pursuant to Tennessee Code Annotated § 41-
21-807(b)(4) (2010), an inmate should not be barred from bringing a civil action because he
has no assets and no means by which to pay the initial partial filing fee. The State contends
that under the provisions of the Tennessee Prisoner Litigation Reform Act, Mr. Gray is
barred from initiating a civil action, even though qualified to proceed in forma pauperis,
because he owes outstanding court costs from a previous action. See Tenn. Code Ann. § 41-
21-812(a). We agree with the State.

The issue at hand requires examination of the interplay between two sections of The
Tennessee Prisoner Litigation Reform Act (“the Act”), codified at Tennessee Code
Annotated §§ 41-21-801 to -818. “When dealing with statutory interpretation . . . [o]ur
primary objective is to carry out legislative intent without broadening or restricting the statute
beyond its intended scope.” Estate of French v. Stratford House, 333 S.W.3d 546, 554
(Tenn. 2011). The Act “was enacted to counter some of the abuses that arise when inmates
exercise their rights to file lawsuits in forma pauperis.” Sweatt v. Tenn. Dep’t of Corr., 99
S.W.3d 112, 114 (Tenn. Ct. App. 2002) (“Among other things, the legislation was designed
to reduce the number of frivolous or malicious lawsuits an inmate can file at taxpayer
expense, and to identify and resolve baseless claims at an early stage.”) (citing 1996 Pub.
Acts, ch. 913, § 1).

The statutory language upon which Mr. Gray relies is contained within Tennessee
Code Annotated § 41-21-807, which provides in full:

(a) An inmate seeking to bring a civil action or appeal a judgment in a civil
action or proceeding without prepayment of fees or security for the
fees, in addition to filing the affidavit [listing lawsuits or claims
previously filed] required by § 41-21-805, shall submit a certified copy
of the trust fund account statement, or the institutional equivalent, for
the inmate for the six-month period immediately preceding the filing of
the complaint or notice of appeal, obtained from the appropriate official
of each facility at which the inmate is or was confined.

(b)(1) If an inmate brings a civil action or files an appeal in forma pauperis,
the inmate shall be required to pay the full amount of the filing fee.

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 The court shall assess and, when funds exist, collect, as a partial
payment of any court fees required by law, an initial partial filing fee
of twenty percent (20%) of the greater of the average monthly:

(A) Deposits to the inmate’s account; or

(B) Balance in the inmate’s account for the six-month period
immediately preceding the filing of the complaint or notice of
appeal.

(2) After payment of the initial partial filing fee, the inmate shall be
required to make monthly payments of twenty percent (20%) of the
preceding month’s income credited to the inmate’s account. The
agency having custody of the inmate shall forward payments from the
inmate’s account to the clerk of the court each time the amount in the
account exceeds ten dollars ($10.00) until the filing fees are paid.

(3) In no event shall the filing fee collected exceed the amount of fees
permitted by statute for the commencement of a civil action or an
appeal of a civil action or criminal judgment.

(4) In no event shall an inmate be prohibited from bringing a civil action
or appealing a civil or criminal judgment for the reason that the inmate
has no assets and no means by which to pay the initial filing fee.

(c) In no event shall an inmate bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the inmate has, on
three (3) or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of this state or the United
States that was dismissed on the grounds that it was frivolous,
malicious or failed to state a claim upon which relief may be granted,
unless the inmate is under imminent danger of serious physical injury.

Section 807 delineates the requirements for an inmate to pay whatever portion of a filing fee
he has the assets and means to pay initially, with the remainder of the filing fee to be paid in
full over time. See id.; see also Fletcher v. State, 9 S.W.3d 103, 106 (Tenn. 1999) (“[T]he
General Assembly has clearly indicated that no person is permanently relieved from payment
of court costs or litigation taxes.”). Within the context of section 807 of the Act, subsection
(b)(4) provides for a situation in which an inmate may have no assets or income from which
to pay any portion of the filing fee upon initiation of an action. Id.

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 In contrast, section 812 of the Act addresses the circumstances of inmates who have
been assessed court costs for filing civil actions in the past, including those filed under the
provisions of section 807, and have failed to pay those costs. Tennessee Code Annotated §
41-21-812 provides:

(a) Except as provided by subsection (b), on notice of assessment of any
fees, taxes, costs and expenses under this part, a clerk of a court may
not accept for filing another claim by the same inmate until prior fees,
taxes, costs and other expenses are paid in full.

(b) A court may allow an inmate who has not paid any costs or expenses
assessed against the inmate to file a claim for injunctive relief seeking
to enjoin an act or failure to act that creates a substantial threat of
irreparable injury or serious physical harm to the inmate.

By reason of a 2001 amendment to the Act, the section 812 bar on new actions “applies to
validly assessed unpaid costs from all prior cases, not only those found to be malicious or
frivolous.” Sweatt, 99 S.W.3d at 115 (“Tenn. Code Ann. § 41-21-812 bars court clerks from
filing any claims by inmates who have not paid the costs remaining from prior cases . . . .”);
see also Montague v. Tenn. Dep’t of Corr., 109 S.W.3d 735, 737 (Tenn. Ct. App. 2003)
(concurring, after affirming the trial court’s judgment on a separate issue, in the court’s
dismissal of an inmate’s complaint “on the authority of Tenn. Code Ann. § 41-21-812(a)
which provides that the clerk of the court shall not accept for filing a claim by an inmate on
an affidavit of inability to pay costs when that person owes unpaid costs incurred in a prior
action.”).

In the instant action, the State acknowledges that Mr. Gray filed a civil affidavit of
indigency and inmate affidavit as required for the trial court to allow him to proceed in forma
pauperis. See Tenn. Code Ann. § 41-21-807(a). The State’s evidence demonstrated,
however, that Mr. Gray owed $172.12 in outstanding court costs for a previously filed action.
The trial court did not err in finding Mr. Gray’s petition barred by Tennessee Code Annotated
§ 41-21-812(a) and in dismissing his petition on that basis. See Dotson v. Contemporary
Media, Inc., No. W2011-01234-COA-R3-CV, 2012 WL 1868255 (Tenn. Ct. App. May 23,
2012) (“If a clerk erroneously accepts, for filing, a claim, to which Tennessee Code
Annotated Section 41-21-812 applies, then the trial court is authorized to dismiss the case
under the statute.”) (citing the example of Davis v. Holland, 31 S.W.3d 574, 577 (Tenn. Ct.
App. 2000)); see, e.g., Brothers v. Corr. Corp. of Amer., No. M2008-02249-COA-R3-CV,
2009 WL 2191248 (Tenn. Ct. App. July 22, 2009) (affirming dismissal of petition for
declaratory order where the petitioner inmate had paid filing fee for case at issue but owed
court costs related to two previous cases). Mr. Gray’s arguments regarding the merits of his

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claim regarding alleged violation of due process rights and TDOC policies are pretermitted
as moot.

V. Conclusion

For the reasons stated above, we affirm the order of the trial court dismissing this
action. The costs on appeal are assessed against the Appellant, Romalis Gray. This case is
remanded to the trial court, pursuant to applicable law, for collection of costs assessed below.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

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