Davis v. Holland

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
March 29, 2000
RONALD L. DAVIS, )
) Cecil Crowson, Jr.
Plaintiff/Appellant, ) Appellate Court Clerk
)
VS. ) Appeal No.
) M1999-00460-COA-R3-CV
WARDEN FLORA J. HOLLAND, )
ASSOCIATE WARDEN DAVID ) Davidson Circuit
RUSSELL, CLASSIFICATION ) No. 97C-3095
COORDINATOR BOB ERVIN, )
JOB COORDINATOR CHARLES )
D. SZOSTECKI, WARDEN RICKY )
BELL, COMMISSIONER DONAL )
CAMPBELL, ASSISTANT )
COMMISSIONER CHARLES )
BASS, AND CLASSIFICATION )
DIRECTOR HOWARD COOK, )
)
Defendant/Appellee, )

APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE MARIETTA M. SHIPLEY, JUDGE

FOR APPELLANT: FOR APPELLEES:

RONALD L. DAVIS, PRO SE PAUL G. SUMMERS
Turney Center Industrial Farm Attorney General & Reporter
Route 1
Only, Tennessee 37140-9709 PAMELA S. LORCH
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243

AFFIRMED AND REMANDED

BEN H. CANTRELL,
PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
CAIN, J.
 OPINION

A prisoner in the custody of the Department of Correction claimed

that numerous employees of the Department violated his constitutional rights by

refusing to assign him to a position as an inmate legal advisor. The trial court

dismissed his claim for failure to pay the legal costs assessed against him in an

earlier case. We affirm.

I.

Ronald L. Davis was incarcerated at the West Tennessee High

Security Facility (WTHSF) in Henning, Tennessee where he worked as an inmate

legal advisor. He applied for an open position as an inmate legal advisor in the

Department of Correction’s Special Needs Facility (SNF) or in its Riverbend

Maximum Security Institution (RMSI), both of which are located in Davidson

County. Mr. Davis’ request was denied. He was later transferred to the Turney

Center Industrial Prison (TCIP) in Only, Tennessee.

On September 27, 1997, Mr. Davis filed a complaint under U.S.C.

42 § 1983 and Tenn. Code. Ann. § 28-3-104 in the Circuit Court of Davidson

County. He claimed that he was intentionally overlooked for the legal support

positions in the Davidson County institutions in retaliation for his legal activities

on behalf of other inmates and himself. Mr. Davis named as defendants the

wardens and other officials of SNF and RMSI, as well as the Commissioner,

Assistant Commissioner and Classification Director of the Department of

Correction.

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 The State responded by filing a motion to dismiss on December 12,

1997, claiming improper venue, a lack of jurisdiction because of Mr. Davis’

failure to comply with the requirements of Tenn. Code. Ann. § 41-21-801 et seq.,

and the failure to state a claim upon which relief can be granted. See Tenn. R,

Civ. P. 12.02(6). Mr. Davis filed a memorandum in opposition to the State’s

motion, and a subsequent motion for the court to grant him a judgment on the

pleadings. On August 26, 1998 he filed a motion for leave to file a supplemental

complaint. On September 28, 1998, he filed a motion for summary judgment on

his claims.

In the proposed supplemental complaint, Mr. Davis claimed that he

had been transferred to TCIP at the behest of the defendants. He had been

confined at TCIP earlier in his sentence, and he had submitted grievances and

lawsuits against the institution’s officials at that time. He claimed that he was

in fear for his life, because those same officials were now harassing him and

threatening him with bodily harm in retaliation for the previous lawsuits. He said

that he had received letters containing threats and racial epithets that had been

slipped under his cell door.

II. The Court’s First Ruling

The trial court issued its first memorandum and order on the

pending motions on November 16, 1998. The court granted Mr. Davis’ motion

to supplement his complaint, and declared that Mr. Davis had stated a

constitutional claim, but that his pleadings were deficient because of failure to

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comply with the statutory guidelines that inmates must follow when filing

lawsuits.

a. Venue

Tenn. Code. Ann. § 41-21-803 reads:

Venue.--Except as otherwise provided by law, an action
that accrued while the plaintiff inmate was housed in a
facility operated by the department shall be brought in the
county in which the facility is located.

The defendants argued that the only proper venue for filing this case

was in Lauderdale County, where WTHSF is located. Mr. Davis argued that

venue was proper in Davidson County, because all the defendants reside there.

In deciding that question, the trial court cited the case of Sweatt v. Conley, Court

of Appeals No. 01-A-01-9706-CH-00247, (filed Nashville, December 5, 1997)

which dealt with a similar issue of venue.

In that case, Antonio Sweatt, an inmate in the Lake County Regional

Facility, brought a U.S.C. 42 § 1983 action in the Davidson County Chancery

Court. The defendants filed a motion to dismiss the claim for improper venue,

but the trial court overruled the motion. The trial court ultimately dismissed the

petition for failure to state a claim upon which relief could be granted.

On appeal, this court found that Mr. Sweatt had stated a cognizable

claim under U.S.C. 42 § 1983, but we revisited the question of venue. We noted

that Tenn. Code. Ann. § 41-21-803 did not apply, because it was not yet in effect

when Antonio Sweatt filed his petition. We reasoned that a claim for violation

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of civil rights must be considered a transitory action because it can arise

anywhere. The general law in regard to transitory actions therefore applied,

which is that “the action may be brought in the county where the cause of action

arose or in the county where the defendant resides or is found.” Tenn. Code.

Ann. § 20-4-101(a).

There was no evidence in the record as to where Mr. Conley and the

other defendants resided. We noted that they all worked in Lauderdale or Lake

Counties, which are on the western boundary of the state, and we therefore found

it reasonable to infer that they did not reside in Davidson County, which is near

the center of the state. We accordingly affirmed the dismissal of Mr. Sweatt’s

civil rights claim, but held that it should be without prejudice to his right to refile

in Lake County.

In the present case, the trial court found that while the cause of

action arose in Lauderdale County, it would consider Mr. Davis’ assertions

regarding the residence of the defendants. It therefore ordered Mr. Davis to

amend his complaint within 30 days to indicate the actual residence of the

defendants, with the complaint to be dismissed if he failed to do so, or if there

were no defendants residing in Davidson County.

b. Failure to File Required Documents

The defendants had argued that Mr. Davis’ complaint should be

dismissed for lack of jurisdiction, because he had failed to supply the court with

documents that the legislature has required be submitted every time an inmate

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files a complaint accompanied by an affidavit of inability to pay court costs. The

required documents are listed in Tenn. Code. Ann. § 41-21-805, and include,

(1) A complete list of every lawsuit 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) The operative facts for which relief was
sought;
(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 final result of the action, 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
malicious, the affidavit must state the date of the final
order affirming the dismissal.

(c) The affidavit must be accompanied by a current
certified copy of the inmate's trust account statement.

Again, the trial court gave Mr. Davis 30 days in which to comply

with the statute. The court stated that failure to provide any of the information

required by Tenn. Code. Ann. § 41-21-805 would result in dismissal of his

complaint.

c. The Retaliation Claim

The trial court found that Mr. Davis had presented sufficient proof

that he was engaged in a constitutionally protected activity by providing legal

assistance to his fellow inmates. Relying on the case of Johnson v. Avery, 393

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U.S. 483 (1969) the court concluded that state officials were precluded from

acting in retaliation against him for his role as an inmate legal assistant.1

The court then ruled that under the two-pronged test to determine

whether a person’s constitutional rights had been violated, the burden had shifted

to the defendants to show “whether they would have made the same decisions

regarding Davis’ transfer, reclassification and job assignment, if he had not

helped other inmates to file lawsuits.” Since the defendants had not yet met that

burden, the court denied their motion to dismiss for failure to state a claim.

In the conclusion portion of her order, the trial judge stated

“[s]ummary judgment is granted as to the constitutional right to job changes,

prison transfers, and changes in security classifications, insofar as they do not

relate to retaliation.” We quote the somewhat confusing language of the court’s

order here because one of Mr. Davis’ arguments on appeal is based upon an

erroneous interpretation of her ruling.

III. The Final Order

Mr. Davis filed a motion to alter the memorandum opinion in which

he provided the business address of each defendant, a statement of his Inmate

Trust Account, and a list of 29 cases he had filed in the courts of the State of

Tennessee. The defendants filed a motion to dismiss, accompanied by the

1
In Johnson v. Avery, the Supreme Court ruled that the State could not enforce prison
regulations barring inmates from furnishing legal assistance to other prisoners, unless the state
itself provided some reasonable alternative to assist inmates in the preparation of petitions for
post-conviction relief. Thus, the right belongs to the inmate who would otherwise be denied
meaningful access to the courts. It does not belong to the individual who seeks the role of
helping him.

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affidavit of a records specialist employed by the Civil Rights and Claims

Division of the Office of the Attorney General. She stated that the list of

lawsuits submitted by Mr. Davis was not complete, and that her division had

thirty open files on lawsuits brought by Mr. Davis, and previously closed files

on an additional twenty-four lawsuits.

The trial court issued its final order on March 1, 1999. The court

noted that Mr. Davis had not fully complied with its earlier order, and stated that

the defendants’ motion to dismiss was well taken. However, the court declared

that it would allow Mr. Davis ten days from the date of the entry of its order to

file a voluntary non-suit pursuant to Tenn. R. Civ. P. 41.01. If the non-suit was

not taken in the time allowed, the motion to dismiss would be granted with

prejudice. Instead of filing a non-suit, Mr. Davis appealed to this court.

IV. Issues on Appeal

a. Venue

Since Mr. Davis has not raised the issue of venue on appeal, we

need not conclusively address that issue here. However, there was a strong

implication in the trial court’s ruling that venue for this case would have been

proper in Davidson County if Mr. Davis had supplied it with the residential

addresses of the individual defendants. While that may be consistent with the

result of Antonio v. Sweatt, supra, we are not sure that case applies here, since it

did not consider the effect of Tenn. Code. Ann. § 41-21-803.

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 b. Unpaid Court Costs

The purpose of subjecting indigent inmates to the filing

requirements of Tenn. Code. Ann. § 41-21-805 is to discourage the filing of

meritless lawsuits at public expense. To further this aim, the legislature has also

enacted Tenn. Code. Ann. § 41-21-807, which directs the court to order any

inmate who had filed a claim that was found to be frivolous or malicious to pay

the filing fees and court costs for that claim.

The court is authorized to dismiss any claim if an inmate fails to pay

filing fees, court costs or any other costs assessed for filing a frivolous or

malicious lawsuit. Tenn. Code. Ann. § 41-21-807(h). The statute also provides

a mechanism for charging the costs assessed against the inmate’s trust account.

With their motion to dismiss, the defendants filed statements of due

and unpaid costs from a small sampling of cases filed by Mr. Davis. The unpaid

costs on those cases alone added up to thousands of dollars. The individuals

sued included the Governor, a Senior Judge, the Commissioner of Correction, the

Attorney General, an Assistant Attorney General, numerous employees of the

Department of Correction, and a sporting goods manufacturer. In one case filed

in the Fifth Circuit Court of Davidson County, Ronald Davis v. Sohnia Hong and

John Knox Walkup, Case No. 97C-2434, the trial court found the action to be

both malicious and frivolous.

In his response to the motion to dismiss, Mr. Davis moved the trial

court to order the costs in Davis v. Hong deducted from his trust account. The

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court properly granted the motion. However we do not believe that Mr. Davis’

obligation was fully discharged by the court’s actions. Tenn. Code. Ann. §

41-21-812 reads:

(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 such 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.

In view of this statute, it appears to us that the trial court’s order of

dismissal was well taken. We also believe that Mr. Davis should not be

permitted to file another claim (other than one under Tenn. Code Ann. § 41-21-

812(b)) at least until he has finished paying off the costs in Davis v. Hong.

c. The Retaliation Claim

Mr. Davis argues on appeal that the trial court erred in reversing its

previous order of summary judgment in his favor. It is clear from his brief that

he believed that the trial court granted him summary judgment on his claim of

retaliation, subject only to proof on his claim of venue, and on compliance with

the requirements of Tenn. Code. Ann. § 41-21-805.

A fair reading of the court’s memorandum and order, however,

shows this not to be the case. The court found only that by providing legal

assistance to his fellow inmates, Mr. Davis was engaged in an activity that was

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constitutionally protected. The court’s order never amounted to more than a

denial of the defendants’ Tenn. R. Civ. P. 12.02(6) motion to dismiss Mr. Davis’

retaliation claim, and was not a grant of summary judgment on that claim. Thus

Mr. Davis’ argument is groundless, and since the court dismissed the complaint

on other grounds, it is also moot.

V.

The order of the trial court is affirmed. Remand this cause to the

Circuit Court of Davidson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant, Ronald Davis.

_______________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.

CONCUR:

____________________________
WILLIAM C. KOCH, JR., JUDGE

____________________________
WILLIAM B. CAIN, JUDGE