FILED

July 31, 1998

Cecil W. Crowson

Appellate Court Clerk DONALD DAVIS, )

 ) Sumner Circuit

Plaintiff/Appellant, ) No. 16897-C

 )

VS. )

 )

SUMNER COUNTY SHERIFF, J.D. ) Appeal No.

VANDERCOOK, BILLY TEMPLETON, ) 01A01-9712-CV-00696

ASSISTANT ADMINISTRATOR, )

SONYA TROUTT, )

 )

Defendants/Appellees. )

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

APPEAL FROM THE CIRCUIT COURT OF SUMNER COUNTY

AT GALLATIN, TENNESSEE

HONORABLE THOMAS GOODALL, JUDGE

Donald Davis, #117350 

D.C.I., Box 700

Waupun, WI 53963

PRO SE PLAINTIFF/APPELLANT

William R. Wright, BPR 4024

Leah May Dennen, BPR 12711

Office of the Law Director

Sumner County Administration Building

355 North Belvedere Drive, Room 208

Gallatin, Tennessee 37066

ATTORNEYS FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED.

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION
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CONCURS:

BEN H. CANTRELL, JUDGE

WILLIAM C. KOCH, JR., JUDGE

DONALD DAVIS, )

 ) Sumner Circuit

Plaintiff/Appellant, ) No. 16897-C

 )

VS. )

 )

SUMNER COUNTY SHERIFF, J.D. ) Appeal No.

VANDERCOOK, BILLY TEMPLETON, ) 01A01-9712-CV-00696

ASSISTANT ADMINISTRATOR, )

SONYA TROUTT, )

 )

Defendants/Appellees. )

O P I N I O N

The captioned appellant is a prisoner in the punitive custody of the Tennessee

Department of Correction. He sued the Sheriff of Sumner County and two of his employees for

violation of 42 USC § 1983 by violating his civil rights by failing to provide him with a “no pork

diet” upon his demand therefor.

The defendants moved to dismiss for failure to state a claim for which relief can be

granted. However, defendants filed affidavits which were considered by the Trial Judge and

mentioned in his judgment dismissing plaintiff’s suit. Therefore the motion was properly treated

as a motion for summary judgment, and the judgment may be reviewed as a summary judgment.

The affidavit of the Jail Administrator states:

1. I am the Jail Administrator of the Sumner

County Jail.

2. When Plaintiff Donald Davis entered the Jail

he did not request a special diet.

3. When we became aware of this, we notified

the kitchen and have attempted to provide him alternate food

sources.
-3-

4. On several occasions, Mr. Davis has turned

down these alternative food sources as he deemed them not as

savory as the pork dishes being served.

5. Nevertheless,wewill continue to offer him nopork substitutes when pork is offered in the diet.

The counter affidavit of the plaintiff is composed entirely of argument, including the

following:

3. The defendants have to date, failed to address

the meals that we’re served on the dates in question of

complaint, 11/96 to 4/97. Meals being served from 5/97 to

present may be nutritionally adequate, plaintiff is no longer

there, therefore can not argue these meals of dates in question

within complaint.

Plaintiff’s affidavit does not deny the unequivocal affidavit of the administrator that, a

non-pork diet was furnished to plaintiff from the time of his request for the duration of his

incarceration.

When a party moving for summary judgment has filed evidence which, if uncontradicted,

requires a summary judgment as a matter of law, the moving party is entitled to summary

judgment unless the opposing party offers evidence contradicting that of the moving party.

TRCP Rule 56. Roberts v. Roberts, Tenn. App. 1992, 845 S.W.2d 225. 

In the present case, the plaintiff filed no evidence to contradict that offered by defendants.

Therefore, the entry of summary judgment of dismissal was correct.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against

appellant. The cause is remanded to the Trial Court for appropriate further proceedings.

AFFIRMED AND REMANDED.

_________________________________

HENRY F. TODD

PRESIDINGJUDGE,MIDDLE SECTION

CONCUR:
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____________________________

BEN H. CANTRELL, JUDGE

____________________________

WILLIAM C. KOCH, JR., JUDGE