IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 7, 2012

ERIC PAYNE v. STATE OF TENNESSEE DEPARTMENT OF HUMAN

SERVICES, ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. CT-003925-10/CT-005919-10 Gina C. Higgins, Judge

No. W2011-00761-COA-R3-CV - Filed December 10, 2012

Appellant appeals from an order dismissing his claims for monetary damages against the

State of Tennessee, the Tennessee Department of Human Services, and the Assistant

Commissioner of the Child Support Services Division of the Tennessee Department of

Human Services. Having determined that sovereign immunity bars the lawsuit, we affirm.

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

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS,

P.J.,W.S., and DAVID R. FARMER, J., joined.

Eric D. Payne, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Warren A. Jasper, Senior Counsel, for

appellee, State of Tennessee, Department of Human Services, and Michael L. Adams.

OPINION

I. Background

This appeal involves two cases, which were consolidated in the trial court. On August

11, 2010, Plaintiff/Appellant Eric D. Payne, appearing pro se, filed a complaint against

Defendant/Appellee Michael L. Adams in Division IV of the Shelby County Circuit Court

(docket Number CT-003925-10). Mr. Adams is the Assistant Commissioner for the Child

Support Services Division of the Tennessee Department of Human Services. In the

complaint, Mr. Payne alleged that Mr. Adams, in his capacity as an official with the child

support office, had knowingly, intentionally, and maliciously failed to close Mr. Payne’s
child support case, and had failed to cease wage garnishment when both of Mr. Payne’s

children had reached the age of majority. Specifically, Mr. Payne alleged that he had been

jailed and forced to continue paying child support even after his children turned eighteen, and

that this action constituted “bullying, harassment, and vicious assaults of meanness and

oppression.” Mr. Payne requested a judgment of $220,000.00 in exemplary and punitive

damages. On September 27, 2010, the Attorney General, on behalf of Mr. Adams, filed a

Motion to Dismiss Mr. Payne’s August 2010 complaint on the basis of sovereign immunity

and failure to state a claim for which relief can be granted.

On December 7, 2010, Mr. Payne filed another complaint in the Shelby County Circuit

Court against the Defendants/Appellees, the State of Tennessee and the Tennessee

1

Department of Human Services Child Support Services Division (“Department of Human

Services,” and collectively, “the State”) (docket number CT-005919-10). The case was

assigned to Division VII. The allegations in the December complaint were largely identical

to the allegations in the Mr. Payne’s prior complaint, except that Mr. Payne requested a total

of $400,000.00 in damages in the second complaint. On January 11, 2011, the Attorney

General, on behalf of the State, filed a Motion to Dismiss Mr. Payne’s December 2010

complaint on the same basis as its earlier motion to dismiss. On February 14, 2011, the

Division VII trial judge entered a consent order, transferring the second complaint to

Division IV. On February 15, 2011, the Division IV trial judge entered a consent order

consolidating both cases.

On March 21, 2011, the Division IV trial court granted the State’s motion to dismiss

Mr. Payne’s case. Mr. Payne filed a timely notice of appeal. Mr. Payne raises a number of

2

issues on appeal. However, we discern one dispositive issue in this case: Whether the trial

court erred in dismissing Mr. Payne’s complaint against the State, the Department of Human

Services, and Mr. Adams?

It is unclear from the complaint whether Mr. Payne intended to name the State of Tennessee as a 1

defendant in his December 2010 complaint or whether he only intended to name the Department of Human

Services. However, as discussed below, departments and commissions of the State are considered to be the

State for purposes of suits for monetary damages. See Davidson v. Lewis Bros. Bakery, 227 S.W.3d 17, 19

(Tenn. 2007). Therefore, we will consider the State of Tennessee as a named defendant in this case.

We note that Mr. Payne also filed a Rule 60.02 motion on October 17, 2011 and a Rule 15.02

2

Motion to Conform to the Evidence on November 3, 2011. The trial court never ruled on these motions.

According to Rule 60.02, however, the filing of a motion pursuant to Rule 60.02 “does not affect the finality

of a judgment.” In addition, from our review of the record, no evidence was presented at trial on this cause;

therefore, the Rule 15.02 motion is moot. Accordingly, we proceed to consider the merits of Mr. Payne’s

appeal despite the trial court’s failure to rule on these motions. 

-2-
II. Analysis

The trial court dismissed Mr. Payne’s case based on the State’s motions for failure to

state a claim upon which relief can be granted pursuant to Rule 12.02(6) of the Tennessee

Rules of Civil Procedure. It is well settled that a motion to dismiss a complaint for failure to

state a claim upon which relief can be granted tests the legal sufficiency of the complaint. It

admits the truth of all relevant and material allegations, but asserts that such allegations do

not constitute a cause of action as a matter of law. See Riggs v. Burson, 941 S.W.2d 44

(Tenn.1997). When considering a motion to dismiss for failure to state a claim upon which

relief can be granted, courts are limited to an examination of the complaint alone. See

Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708 (Tenn. Ct. App. 1990). The basis

for the motion is that the allegations in the complaint, when 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 (Tenn.1975). In considering such a motion, the court should construe the complaint

liberally in favor of the plaintiff, taking all the allegations of fact therein as true. See Cook

ex rel. Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934 (Tenn.1994).

On appeal, the State asserts that this case is barred by the doctrine of sovereign

immunity. Specifically, the State asserts that, because Mr. Payne’s allegations concern the

State, a State agency, and an official of a State agency acting in his official capacity, the

doctrine of sovereign immunity applies to bar this claim. We agree.

It is well-settled that the State is immune from suit except as it consents to be sued.

Mullins v. State, 320 S.W.3d 273, 278 (Tenn. 2010) (citing Stewart v. State, 33 S.W.3d 785,

790 (Tenn.2000)). “The rule of sovereignty is both constitutional and statutory.” Mullins,

320 S.W.3d at 278; see also Wells v. Tenn. Bd. of Regents, 231 S.W .3d 912, 916 (Tenn.

2007). Article 1, section 17 of the Tennessee Constitution provides “[s]uits may be brought

against the State in such manner and in such courts as the Legislature may by law direct.”

Tenn. Const. art. I, § 17; see also Davidson v. Lewis Bros. Bakery, 227 S.W.3d 17, 19 (Tenn.

2007) (quoting Tenn. Const. art. I, § 17). The Supreme Court has held that this section must

be strictly construed. Beare Co. v. Olsen, 711 S.W.2d 507 (Tenn. 1986). Thus, unless the

legislature consents to be sued in plain, clear, and unmistakable language, no suit against the

State can be maintained. Wells, 231 S.W.3d at 917 (quoting Northland Ins. Co. v. State, 33

S.W.3d 727, 731 (Tenn. 2000)).

Tennessee Code Annotated Section 20-13-102(a) similarly provides:

No court in the state shall have any power, jurisdiction or

authority to entertain any suit against the state, or against any

officer of the state acting by authority of the state, with a view

-3-
to reach the state, its treasury, funds or property, and all such

suits shall be dismissed as to the state or such officers, on

motion, plea or demurrer of the law officer of the state, or

counsel employed for the state.

Our Supreme Court has held that “the State” includes “the departments, commissions,

boards, institutions and municipalities of the State.” Davidson, 227 S.W.3d at 19 (quoting

Metro. Gov't of Nashville & Davidson Cnty. v. Allen, 415 S.W.2d 632, 635 (Tenn. 1967)).

According to the above statute, the State, agencies or departments of the State, and

officers of the State acting by authority of the State are immune from suits for monetary

damages in State courts. Mr. Payne’s complaints were filed in State court and seek only

monetary damages. Further, the Department of Human Services is an agency of the State. See

Holloway v. State, No. W2005-01520-COA-R3-CV, 2006 WL 265101, *2–3 (Tenn. Ct. App.

Feb. 3, 2006); see also Tenn. Comp. R. & Regs. 1240-02-04-.01(1)(b) (“The Tennessee

Department of Human Services is the authorized state agency for the enforcement of the

child support program in the State of Tennessee . . . .”) (emphasis added). Thus, the State

and the Department of Human Services are clearly immune from suit. In addition, reviewing

the complaint against Mr. Adams in the light most favorable to Mr. Payne, we can only

conclude that Mr. Payne seeks damages for alleged wrongful actions committed by Mr.

Adams while he was acting in his official capacity as Assistant Commissioner of the Child

Support Services Division of the Tennessee Department of Human Services. Indeed, the

allegations in the complaint concern the actions of the Child Support Services office in

seeking payment from Mr. Payne despite his contention that he no longer owed child support

due to the majority of his children. Nothing in the complaint specifically alleges that Mr.

Adams was acting individually or outside the scope of his authority in directing his office to

seek child support from Mr. Payne. Thus, the State correctly argues that this suit is barred as

to Mr. Adams as well.

Mr. Payne offers no authority for his contention that the State, the Department of

Human Services, or Mr. Adams are subject to suit in this case. Although we are cognizant

of the fact that Mr. Payne filed his complaint pro se, and continues to represent himself

without an attorney on appeal, it is well settled that pro se litigants are held to the same

procedural and substantive standards to which lawyers must adhere. As recently explained

by this Court:

Parties who decide to represent themselves are entitled to fair

and equal treatment by the courts. The courts should take into

account that many pro se litigants have no legal training and

little familiarity with the judicial system. However, the courts

-4-
must also be mindful of the boundary between fairness to a pro

se litigant and unfairness to the pro se litigant's adversary. Thus,

the courts must not excuse pro se litigants from complying with

the same substantive and procedural rules that represented

parties are expected to observe.

Jackson v. Lanphere, No. M2010–01401–COA–R3–CV, 2011 WL 3566978, at *3 (Tenn.

Ct. App. Aug. 12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct.

App. 2003)). Without any authority that the Legislature consented to the State, the

Department of Human Services, or Mr. Adams being sued in the context of the allegations

presented in Mr. Payne’s complaints, we must conclude that the trial court did not err in

dismissing Mr. Payne’s complaints as barred by the doctrine of sovereign immunity.

In its brief, the State also argues that:

To the extent that [Mr. Payne’s] claims might be construed as

seeking damages under 42 U.S.C. § 1983, the United States

Supreme Court has expressly recognized that a state is not a

“person” within the meaning of 42 U.S.C. § 1983. Will v.

Michigan Department of State Police, 491 U.S. 58 (1989). As

the Court noted in Will, § 1983 does not provide a federal

forum for litigants who seek a remedy against a state for alleged

deprivations of civil rights. Will, 491 U.S. at 6. Thus, the

Supreme Court held that neither a state, its agencies, nor its

officials acting in their official capacities are “persons” under §

1983. Therefore, no claim lies, and the trial court was correct to

dismiss this lawsuit.

Even considering the complaints in the light most favorable to Mr. Payne, however, we must

conclude that Mr. Payne fails to make out any cognizable claim for a violation of 42 U.S.C.

§ 1983. Claims properly brought pursuant to 42 U.S.C. § 1983 involve “the deprivation of

[] rights, privileges, or immunities secured by the Constitution and laws” by persons acting

under color of law or custom. 42 U.S.C. § 1983. However, Mr. Payne never alleges, in either

complaint, that his due process rights were violated during the child support proceedings, or

that any of his other constitutional or statutory rights were violated by the Appellees in this

case. In addition, 42 U.S.C. § 1983 is not cited in either complaint. However, even assuming,

arguendo, that Mr. Payne makes out a cognizable claim for a violation of 42 U.S.C. § 1983,

we agree with the State that neither the State, the Department of Human Services, nor Mr.

Adams are “persons” within the meaning of 42 U.S.C. § 1983. See Bowden Bldg. Corp. v.

Tennessee Real Estate Comm'n, 15 S.W.3d 434, 438–39 (Tenn. Ct. App. 1999) (recognizing

-5-
that the State, State agencies, and State officials acting in their official capacities are not

“persons” within the meaning of 42 U.S.C. § 1983). Thus, we likewise affirm the dismissal

of any purported claim made pursuant to 42 U.S.C. § 1983.

III. Conclusion

The judgment of the Shelby County Circuit Court is affirmed and costs are taxed to

Appellant Eric D. Payne, and his surety. This case is remanded to the trial court for any

further proceedings as may be necessary and consistent with this opinion.

_________________________________

J. STEVEN STAFFORD, JUDGE

-6-