# FILED
Au gust 1, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ RAY DARRIS THOMPSON, Plaintiff -Appella nt, Shelby Circuit No. 56881 Vs. C.A. No. 02A01-9702-CV-00034 STANLEY DICKERSON, ET AL, Defend ants-App ellees.

__________________________________________________ __________________________ FROM THE SHE

LBY COUNTY CIRCUIT COURT THE HONORABLE KAREN R. WILLIAMS, JUDGE

Ray Darr is Thompson , Pro Se John Knox Walkup, Attorney General and Reporter Arthur Crownover II, Assistant Attorney General

For Appellees

REVERSED AND REM ANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE Plaintiff, Ray Darris Thompson, appeals the ord er of the trial court dis missing his complaint against the defendants, Stanley Dickerson, Betty Hammond, Vernon Brown, June2

Wesson, Bruce MacDonald, and Christine Bradley, for fa ilure to prosecute. On October 4, 1993, Thompson, acting pro se , filed a complain t against t he defe ndants, bothin their individual and official capacities, asserting a negligence action

for the d enial of his rights in a prison disciplinary hearing. Thompson is an inmate in the custody of the Tennessee Department

of Correction (TDOC), and each of the de fendant s is an employ ee of TD OC. In his compla in t, Thompson a

lleges tha t the def endants negligent

ly cause d him to be c

harged with “Providing Unauthorized Services to Employees” and that the d efenda nts neglig ently violated TDOC Administrative Policy and Procedure Index No. 502.05. The complaint alleges that

the defenda nts negligently com menced disciplinary proceedings agai nst Thompson for an action that
was not a punis hable dis ciplinar y offens e. The c omplaint f urther a lleges tha t the def

endants found Thompson guilty against the preponderance of the evidence an d acted negligent

ly in violation of TDOC Policy No. 502.01 and No. 502.05. In addition, the complaint alleges that the defendants denied Thompson’s appeal. Finally, Thompson alleges that he suffered severe mental anguish, loss of job pay, and other financial and incidental losses. The complaint request s a decla

ratory ju dgment, a

n injunctio n, and $10 ,000.00 in damages
. Each of the defendants separately filed a motion reque sting a forty-five-day extension of time in which to reply to the compl aint. On o r about D ecembe

r 20, 1993 , the def

endants together filed a motion to dis miss for lack of jurisdiction over the subject matter and for fa ilure to state a claim upon which relief can be granted. On

or about January 3, 1994, Thompson filed
a motion for

extensio n of time in

which to f

ile his re sponse to t

he defe ndants’ m otion to dism

iss, and on January 31, 1994, Thompson filed a motion requesting an ad ditional ten d ays. On or about Februar y 6, 1994, T

hompson fi led a re

ply to the d

efenda nts’ motion

to dismiss. Also on February 6, 1994, Thompson filed a motion to vol untarily dismiss his claims against the defenda nts in their o fficial capa city and to dismiss his claims for declaratory and injunctive relief. The defendants continued the exchange of motions on February 22, 1994 when they filed
a reply to Thompson’s response to their motion to dismiss. Shortly thereafter, Thompson filed a response to the defendants’ latest reply. On May 20, 1994, Thompson mailed a letter to the clerk of the court requesting that the clerk’s office notify him of the status of the case and send him copies of any order e ntered in the3

case. On June 20, 1994, Thompson again wrote the clerk of the court re questing an update on the status of the case. Apparently, the clerk handwrote a response on Thompson’s sec ond letter stating, “Dear Sir, On or about May 20, 1994, I re sponded to your lette

r. The c ase is stil l pending and again no orders have been ente red in this case.” On April 6, 1994, Thompson attempted to continue discovery by filing a requ est for production of docume

nts. The d

efenda nts failed to

respond, and on April 16, 1994, Thompson filed a motion to

compel pr

oduction o f docume

nts. On Apr

il 30, 1994, the defe

ndants replied to Thompson’s motion to compel claiming that they never received the requ est

for production of document s . The def

endants’ response

pointed ou

t to the tri al court

that the d

efenda nts still had a motion to dismiss pending. In his brief, Thompson stated that he was notified by the clerk’s office on June 28, 1996 that the case was set f or dismissa

l on July 9, 1 996 for f

ailure to prosecu te. Thomp son file d a motion in opposition to the dismissal on July 5, 1996. On July 9, 1996, however, the trial court entered an order dismissing Thompson’ s complain t, sua sponte

and without comment, for want of prosecution. Thompson appeals the order of the trial court and presents one issue for review: whethe r the trial court er

red in dis missing his c omplaint f or failur e to prosecute. The defendants present
an alterna tive issue : whet her Thompson’s complaint should be dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. The tr ial court is expressly authorized to impose the sanction of dismissal. Holt v. Webster , 638 S.W.2d 391, 394 (Tenn. App.1982). TheTennessee Rules of Civil Procedur e authorize a trial court to dismiss a plaintiff’s complaint: “For failure of the plaintiff to prosec ute
or to comply with these rules or any order of court, a

defendant may move for dismissal of an action or of any

claim against the defendant.” Tenn. R. Civ. P. 41.02 (1). A dismissal for failure to prosecute operates as an adjudication upon the merits. Tenn. R. Civ. P. 41.02 (3). In Harris v. Baptist Memorial Hospital , 574 S.W.2d 730 (Tenn. 1978), the Tennessee Supreme C ourt disc ussed Rule 41.02: Although Rule 41.02 does not expressly so provide, we are of the opinion that

a trial court may under certain circumstances a nd upon adequate grounds therefor, sua sponte order the involuntary d ismissal of an ac tion. Howe ver, this power mu st be exe rcis e d most sparingly and with great care that the right of

the respective4 parties to a hear

ing shall n ot be deni ed or impa ir ed. It m

ust be re m embered

that Rule 41.02(3), Tennesse e Rules of Civil Procedu re , provides that

al l dismissals, except those for lack of jurisdiction, improper ven u e or lack of an indispensable party, shall operate as an

adjudication upon the merits unless the court in its order

of dism issa l otherwise provides. In short, the occasions for the proper exercise of this power are considered

by this Court to be few indeed. Id
. at 731. Dismissal is a harsh sanction. Holt , 638 S.W.2d at 394. A ccordin gly, lawsu its should not be dismissed absent

a hearing on the merits except in most urgent circumstances. Barish v. Metropolitan Gov’t of Nashville and Davids on County , 627 S.W.2d 953, 954 (Tenn. App. 1981) (citing Holt v. Pitt s , 619 F.2d 558 (6th Cir. 1980)). When the trial

court ex ercise s its discr

etion in imp osing the s anction o f dismissa l, this exerci se of its di scretion

will not be disturbed by this Court in the absence of an affirmative showing that the trial court abused its discretion. Id
. Thompson argues that the trial court abused its discretion by dismissing his complaint for failure to prosec ute. He p oints out tha

t three motions wer

e stillpending before thetrial cou rt: the defendants’ m otion to dismiss, his motion to dismiss the official capacity claims and the claims for declar atory and injunctiv e relief , and his mo tion to compel pr oduction o f docume

nts. He also argues that

the action was delayed because of the de ath or resignation of the original trial judge. Thompson asserts that the case was stalled during the wait for the a ppointment of the new trial judge. Fina

lly, Thomps on asser

ts that the d

efenda nts delay ed the ca se by not sett ing their motion to dismiss for a hearing. We agree with Thompson that the trial court erred in dismissing his complaint. Itis clear from the record that three motions were still pendingbefore the trial court, two of which were filed by Thompso n, and tha t the cas e was still ongoing. T hompson tw ice wrot

e the clerk of

the court to request an update. Although he did not pursue the case with the utmost diligence, h e certain ly did not aba

ndon his cause. We note t hat pro se inmate litigants are at a disadvantage and that it wa s probabl

y difficu lt for Tho mpson to ch

eck the s tatus of h

is case or the status of the
ne w j udge’s a

ppointmen

t. During t

he pende ncy of thi s case, J

udge Tha rpe, to whom the ca se
was originally assigned, became ill and passed away. Judge Williams was appointed to the bench and was assigned thi s case. I t appear s that Thom

pson was a

victim of u

nfortuna te circumstances and that

his case was lost in the shuffle. We believe that this case doesnot present5

such urgent circumstances to warrant the har sh sanction of a dismissal. The defendan t s have also presented an issue for our revie w: whether Thompson’s complaint should be d

ismissed f

or lack o f subje ct matt er jurisdiction or for failure to state a claim upon which relief can be granted. The de fendants filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief ca n be granted, but the trial cou

rt never ruled on t

his motion . We will not entertain the defendants’ argument because the trial court has not entered a f inal judgment on this issue. T.R.A.P. 3. Accordingly, the order of thetrial court dismissing Thompson’s complaint is reversed, and this case is remanded to the trial court for such further proceedings as may be

ne cessary. Costs of thi s appeal

are ass essed ag ainst the a ppellee s.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S.

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE