IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Brief April 8, 2013

NIGEL MARLIN REID SR. v. MORRISTOWN POWER ET AL.

Appeal from the Circuit Court for Hamblen County

No. 12CR266 Tom J. Wright, Judge

No. E2012-02480-COA-R3-CV-FILED-JUNE 26, 2013

Nigel Marlin Reid, Sr. filed a complaint in the trial court. The court, sua sponte, held that

the complaint is “frivolous” and that plaintiff’s claims against his brother are barred by res

judicata. The court dismissed the action. Because the complaint fails to state a cause of

action, we affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., P.J., delivered the opinion of the Court, in which D. MICHAEL

SWINEY and JOHN W. MCCLARTY, JJ., joined.

Nigel Marlin Reid, Sr., Morristown, Tennessee, appellant, pro se.

No appearance by or on behalf of appellees.

OPINION

I.

Plaintiff filed this action against his brother, Almond Reid; his brother’s wife, Louise

Reid; Beverly LeDoux, who apparently is employed by Almond Reid as manager of his

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rental properties in Morristown; and Rev. Clifton Jackson, pastor of a Morristown church.

Shortly prior to the institution of this action, Almond Reid filed a forcible entry and detainer

It is difficult to ascertain fromplaintiff’s handwritten pleadings exactly what Mrs. Reid’sfirst name 1

is. The complaint and attachments refer to her as “Loiuse Reid” and “Louse Reid.” Plaintiff’s handwritten

appellate brief often refers to her as “Lugina Reid.” The trial court’s order names her as Louise Reid. We

will do likewise. 
action (“Reid I”) against plaintiff, seeking to evict him from an apartment owned by Almond

Reid and located at 1440 Cherokee Drive in Morristown. Reid I, which was heard and

decided by the same trial court, resulted in a judgment in favor of Almond Reid and against

plaintiff for unpaid rent and a writ of possession. On appeal, we affirmed. Reid v. Reid, 388

S.W.3d 292, (Tenn. Ct. App. 2012). The Reid I opinion was filed on August 9, 2012.

Plaintiff’s handwritten complaint in the case now before us, filed on October 29,

2012, states in its entirety as follows:

Defendant 1.) Morristown Power. on, 8-27th,12; I did go to ask

them if I could turn my power back on. I was told no because

of the letter that they received or they think that they received

from Mr. Almond Reid that wasn’t signed or notarized. See Atc

#1. please be advised that I’ve been without power for almost

a year now since my power was turned off about a year now.

Please look at Atc. #2 on or about 6-25th-12-7-18th 12. Mr.

Reid’s manager Miss Ledoux changed the lock on my door plus

all three know that Mr. Reid had the water Bill in his name for

the Last 5-6 years but he & his wife had Miss Ledoux put the

water bill in her name. this can & will proven through subpoena

& or Discovery. even those Mr. Reid or his wife didn’t turn off

my Lights Defendant; Morristown power will not allow me to

turn my lights back on even though I payed my Bill up in full.

I’m Bi-polar & this has put me through a Lot of mental Anguish

& stress. See Atc #3.

Defendant 2) Almond C. Reid. I was his manager off & on for

the past 10 year’s. with a verbal & a lease stating I didn’t have

to pay rent as long as I work for him & his wife Louse Reid.

But after he Lost his job that he work for 32 year’s then he

wanted/they wanted me to pay rent I said no then he started to

evict me. I reserve the right to add evidence as the trial

proceeds. I so move the court to grant this request. see Att. #3.

this is my clear statement for claim for relief.

Attached to the complaint was a document styled “Attc #2.” In an effort to convey

that with which the trial court was presented and because plaintiff’s claims are somewhat

difficult to decipher and describe, we quote verbatim atsome length his pertinent allegations:

For defendant, Louse Reid. . . . I can prove that Mrs Reid know

every that her husband does here @ 1440 Cherokee Dr. Bouth

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her & her husben (Almond) knows that I’m bi-polor &

Discriminated against me. . .

For defendant Beverly Ledoux, . . . I can and will prove that she

Ladoux did call 911 on my son & or me during the month of

Aug. befor she became manager @ 1440 Cherokee Dr. . . . on or

about 6-12 defendant Ladoux did turn my water off. then on 6-

25th or 26th 2012 defendant Ladoux did throw my son Nigel

Reid II Furniture without evicting him when I was manager for

defendant(s) Almond/Loiuse Reid know that I gave my son

Nigel Marlin Reid II a lease. . . . to add to the Mental Anguish

that Defendant Ledoux stated to I couldn’t step Food on 1440

Cherokee Dr. that I was Band knowing that my Evection was

still on Apeal in the Appeals Court in Knoxville Tn.

* * *

For defendant Rev. Clifton Jackson, on or about Feb. 12th 2012

this defendant Rev. Jackson did stand in Front of his church and

told them that I the Rev. Nigel Marlin Reid, Sr. the pastor of the

Church of tha Livin Rock non-denomination church was not

allowed to ever step foot on Bethel Baptist church a

denomination church . . . he realy put my through mintal anguish

by getting or going be for the Bethel Baptist church telling them

that I couldn’t atend church there and know that I started my

church the church of Tha Livn Rock. this is clear Religush

Discrimination:

Plaintiff also filed a form captioned “United States District Court Eastern District of

Tennessee Application to Proceed in Forma Pauperis with Supporting Documentation.” He

stated that “because of my poverty, I am unable to pay the fees for this action or give security

therefor.” Before any of the defendants filed a response, the trial court, acting sua sponte,

entered an order stating:

The undersigned has thoroughly reviewed Mr. Reid’s

Application to Proceed in forma pauperis and his complaint.

Although Mr. Reid qualifies as indigent, and the Clerk is

DIRECTED to file the documents plaintiff has submitted, the

Complaint is frivolous.

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The central allegations of this complaint have been tried by this

Court, a verdict rendered against Plaintiff Reid and that verdict

affirmed on appeal. Since Mr. Reid had no claim to the property

where he wanted power restored, he can have no claim against

Morristown Power for failing to turn the power on. There is no

claim asserted against defendant Jackson. The claims against

defendants Reid have been adjudicated previously and are final.

Hamblen County Circuit Court Docket No. 11CV227TJW.

Accordingly, this case is DISMISSED pursuant to T.C.A. § 20-

12-132.

(Capitalization in original.) Plaintiff timely filed a notice of appeal.

II.

The sole issue we review is whether the trial court erred in dismissing plaintiff’s

complaint.

III.

A.

The trial court dismissed plaintiff’s complaint pursuant to Tenn. Code Ann. § 20-12-

132 (2009), which pertains to actions filed by plaintiffs proceeding in forma pauperis. See

Fiske v. Grider, 106 S.W.2d 553, 554-55 (Tenn. 1937); Morris v. Smith, 30 Tenn. (11 Hum.)

133, 134-35 (Tenn. 1850); Jones v. Dailey, 785 S.W.2d 365, 366 (Tenn. Ct. App. 1989).

Tenn. Code Ann. § 20-12-127, which authorizes a lawsuit on a pauper’s oath, provides as

follows:

(a) Any civil action may be commenced by a resident of this

state without giving security as required by law for costs and

without the payment of litigation taxes due by:

(1) Filing the following oath of poverty:

I, [fill in blank], do solemnly swear under penalties of perjury,

that owing to my poverty, I am not able to bear the expense of

the action which I am about to commence, and that I am justly

entitled to the relief sought, to the best of my belief;

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and

(2) Filing an accompanying affidavit of indigency as prescribed

by court rule.

Section 20-12-132 provides:

(a) If it is made to appear to the court, at any time before the

trial, that the allegation of poverty is probably untrue, or the

cause of action frivolous or malicious, the action may be

dismissed.

(b) The burden shall be upon a pauper to justify the pauper’s

oath.

The trial court dismissed plaintiff’s cause of action on the ground that it is “frivolous.”

Although Tennessee courts have occasionally addressed the question of whether the

allegation of poverty in a pauper’s oath “is probably untrue,” see, e.g., Fort v. Noe, 233 S.W.

516, 517 (Tenn. 1920); McKinney v. Leisure Pools, Inc., Shelby Law No. 63, 1989 WL

2460 at *2-3 (Tenn. Ct. App. W.S., filed Jan. 17, 1989); Hewell v. Cherry, 158 S.W.2d 370,

373 (Tenn. Ct. App. 1941), it appears the issue of dismissal of a “frivolous” cause of action

proceeding in forma pauperis has arisen only once. Kincaid v. Bradshaw, 65 Tenn. (6 Baxt.)

102 (Tenn. 1873). Kincaid, however, was decided on a different ground.

In the present case, plaintiff did not file the oath of poverty required by Tenn. Code

Ann. § 20-12-127(a)(1). The federal court form for application to proceed in forma pauperis

that plaintiff partially filled out – only two pages of the ten-page application are in the

appellate record – does not contain plaintiff’s signature, nor the language of the oath of

poverty required by section 127(a)(1). Furthermore, plaintiff did not file an affidavit of

indigency as required by section 127(b). Although the proper applicability of Tenn. Code

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Ann. § 20-12-132 is open to question, we need not reach that issue in this case. This is

because the trial court had the authority to dismiss the action on another ground, i.e., failure

to state a claim upon which relief could be granted. Huckeby v. Spangler, 521 S.W.2d 568,

571 (Tenn. 1975); Donaldson v. Donaldson, 557 S.W.2d 60, 62 (Tenn. 1977) (observing that

“[t]here is no duty on the part of the court to create a claim that the pleader does not spell out

in his complaint. And where, as here, no claim for relief is stated by a party, a court may

properly dismiss the action, either on motion or sua sponte.”) (citation omitted).

After the trial court entered its final judgment, plaintiff did file an affidavit of indigency in lieu of 2

an appellate bond. 

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B.

In considering an action where, as here, the trial court, acting sua sponte, dismissed

a suit because it failed to state a claim, a “court should construe the complaint liberally in

favor of the plaintiff, taking all of the allegations of fact therein as true. Any such dismissal

by the trial court, like a dismissal under Rule 12, is subject to scrutiny on appeal.” Huckeby,

521 S.W.2d at 571. We review the trial court’s decision under the following well-established

standard of review of dismissal pursuant to Tenn. R. Civ. P. 12.02(6):

A Rule 12.02(6) motion challenges only the legal sufficiency of

the complaint, not the strength of the plaintiff’s proof or

evidence. The resolution of a 12.02(6) motion to dismiss is

determined by an examination of the pleadings alone.

* * *

In considering a motion to dismiss, courts must construe the

complaint liberally, presuming all factual allegations to be true

and giving the plaintiff the benefit of all reasonable inferences.

A trial court should grant a motion to dismiss only when it

appears that the plaintiff can prove no set of facts in support of

the claim that would entitle the plaintiff to relief. We review the

trial court’s legal conclusions regarding the adequacy of the

complaint de novo.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)

(internal citations and quotation marks omitted.)

Regarding our review of a pro se litigant’s claims, we have observed the following

standards and applicable principles:

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

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.

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The courts give pro se litigants who are untrained in the law a

certain amount of leeway in drafting their pleadings and briefs.

Accordingly, we measure the papers prepared by pro se litigants

using standards that are less stringent than those applied to

papers prepared by lawyers.

Pro se litigants should not be permitted to shift the burden of the

litigation to the courts or to their adversaries. They are,

however, entitled to at least the same liberality of construction

of their pleadings that Tenn. R. Civ. 7, 8.05, and 8.06 provide to

other litigants. Even though the courts cannot create claims or

defenses for pro se litigants where none exist, they should give

effect to the substance rather than the form or terminology, of a

pro se litigant’s papers.

Marceaux v. Thompson, 212 S.W.3d 263, 267 (Tenn. Ct. App. 2006) (quoting Young v.

Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003)).

C.

We now proceed to evaluate the merits of plaintiff’s claims, construing the complaint

liberally in his favor and taking all of the allegations of fact therein as true. Plaintiff’s claims

against Almond Reid, Louise Reid, and Beverly LeDoux are premised upon a claim to

possession of the property he previously rented from Almond Reid at 1440 Cherokee Drive

in Morristown. Any claim to possession of the property, however, is precluded by Almond

Reid’s earlier forcible entry and detainer and eviction action that was decided by the same

trial court and affirmed on appeal. Reid I, 388 S.W.3d at 293 (affirming the trial court’s

judgment granting Almond Reid a writ of possession of the property and a judgment for

unpaid rent). The trial court properly took judicial notice of its own judgment and order in

Reid I. See Harris v. State, 301 S.W.3d 141, 147 n.4 (Tenn. 2010) (“The Court may take

judicial notice of its own records.”); State v. Lawson, 291 S.W.3d 864, 870 (Tenn. 2009)

(observing “the axiom that if the proceedings are of a particular court, that court may

appropriately take judicial notice”); Hughes v. State, 451 S.W.2d 696, 697 (Tenn. Crim.

App. 1969) (a court “can take judicial notice of its own orders and judgments”). Plaintiff

filed the present complaint less than three months after the Court of Appeals affirmed the

trial court’s judgment in Reid I.

Plaintiff’s claims against the Reids and Ms. LeDoux are barred by the doctrine of res

judicata, which “‘bars a second suit between the same parties or their privies on the same

cause of action with respect to all the issues which were or could have been litigated in the

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former suit.’” Patton v. Estate of Upchurch, 242 S.W.3d 781, 790 (Tenn. Ct. App. 2007)

(quoting Young, 130 S.W.3d at 64) (emphasis in original). Regarding plaintiff’s claims

against the other defendants, the trial court correctly held that “[s]ince Mr. Reid had no claim

to the property where he wanted power restored, he can have no claim against Morristown

Power for failing to turn the power on” and “[t]here is no claim asserted against defendant

Jackson.”

IV.

The judgment of the trial court is affirmed. Costs on appeal are assessed to the

appellant, Nigel Marlin Reid, Sr. The case is remanded to the trial court, pursuant to

applicable law, for collection of costs assessed below.

__________________________________________

CHARLES D. SUSANO, JR., PRESIDING JUDGE

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