# FILED September 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) KENNETH WR

IGHT , ) Lake County Chancery

Court ) No. 4317 Plaintiff

/Appella nt. ) ) VS. ) C.A. No. 02A01-9702-CH-00046 ) LARRY SEAY, et al, ) ) Defend ants/Appe

llees. )

)

______________________________________________________________________________ From the Chancery

Court of Lake County

at Tiptonville. Honorable J. Steven Stafford, Chancellor,

Kenneth Wright , Pro Se
John Knox Wa

lkup , Attorney Gene

ral and Reporter Sohnia W. Hong , Assistan t Attorne y General Attorney s for Def

endants/ Appellee s.

OPINI ON FIL

ED: AFFI RMED IN P

ART, REVERSED IN PA RT AND REM ANDED FARMER, J. CRAWF ORD, P. J., W.S. : (Concur s) LILLARD, J. : (Concur s)1 Every pe rson who, under color of any statute, ordinance, regulation, custom, or usag e, of any State or Te

rritory or the D istrict of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileg es, or immu nities sec ured by the Constit

ution and l aws, sha

ll be liabl e to the pa

rty injured in an action at law, suit in equity, or othe r proper proceeding for

redress. For the purposesof this section, any Act of Con gress a

pplicabl e exclusiv ely

to the Dist

rict of Co lumbia shall be considered to be a statute of the District of Columbia.

The plaintiff, Kenneth Wright, sued the defendant s, La rry Seay , Dennis Dean and Coi Tyler, for slander

and violation of 42 U.S.C. § 1983. 1 The def endants m

oved to dis miss on the b asis that the complaint failed to state a claim upon which relief can b e gr anted and that the trial court lacked subject matter jurisdiction, as the matter should have been filed with the Claims Commission. The motion

was gr anted and Plaintiff

appeals
.

The purpose o f a Rule 12 .02(6) T .R.C.P. motio n to dismiss is to test th e legal sufficiency

of the complaint. In examining the complaint, we m ust take all the well pleaded, material factual allegations as true, and must construe the complaint liberally in favor of the plaintiff. Dobbs v. Guenther , 846 S.W.2d 270, 273 (Tenn. App. 1992).

The complain

t alleg es that the

plaintiff is curre ntly incarc erated

in th e Tenne ss ee Department

of Correction facility

at Northwest Correctional Center (NCC). Defendant

Larry Seay is the food s ervice

manage r, defe ndant De nnis Dea n is the operational manager and de fendant Coi Tyler is a corr ectiona l office r, all at NCC. Each defendan t is sued in his individual capacity and acting under color

of State law. The complaint further allegesthat the plaintiff was falsely accused by the def endants of sex ual misconduct with one of his supervisors. It alleg es that damages sustained by the

plaintiff were intentionally inf licted by the defendants and false accusations spre ad throughout

the fac ility

by t hem. It further contends that such false accusa tions resulted in a disciplinary infraction.

We believe the complaint states a cause of action for slander. T he defendants contend that the trial court la cked sub ject matt er jurisd iction be cause

T.C.A. § 9-8-307(a)(1)(R) provides that the claims commission has exclusive jurisdiction over claims for slander. The statute provides as pertine nt:(a)(1) the commission or eachcommissioner sitting individually has ex cl usive jurisdiction to determine all monetary c laims against the state falling within one (1) or more of the following categories . . . . (R ) Claims for libel and/or slander where a state employ ee i s determined to be a

cting w ithin the sc ope of em ploy ment.
T.C.A. § 9- 8-307(h) providesas pertin ent:

Stateofficers and

employees are absolutely immune from liability for acts or omissions within the scope o f th e officer’s or employ ee’s office or employment, except for willful, malicious, or cr iminal acts or omissions or for acts or omissions done for personal gain.

Pursuant to statute, the Claims Commission does have e x clusive jurisdiction over claims for slander where a state employ ee is determined to be acting within t he scope of that employment

and state

employ ees are immune f

rom liabil

ity f or acts within the sc ope of the ir employment, except for willful, malicious or cr iminal acts or

omissions or acts or omissions done for personal gain. The defendants ar gue tha t it is obvious from the face of the complaint that any statemen ts allegedly

made by the

defendants were made while they were acting within the scope of their employ ment as c o rrectio nal offic ers. One of the el ements of

a cause of actio n for sla

nder is publication to a third party. This Court held in Woo ds v. He lmi , 758 S.W.2d 219 (Tenn. App. 1988), that communication among agents of the same corporationmade with in the sco pe and c ourse of

their employment

relative to duties pe

rformed for that c orporat

ion are n ot to be consid

ered asstatemen

ts communicatedor publicized to third persons. Given the job titles ascribed to each defendant in the complain t, it could readily be a

rgued that the communication among themselves would fall within the Woo ds v. He lmirule. Ho wever, as previ ously state d, in exam inin g a

Rule 12.02(6) motion the complaint is to be liberally construed. Furthermore, the complaint alleges that these falsehoods were “spread throughout the facility.” The defendants concede in their brief that the c omplaint alleges that their acts were intentional or willful. However, the state co ntends tha

t the ClaimsCommission has jurisdiction to make the initial f inding a s to whether the defendants acted maliciously or outside the scope of their e

mploy ment. As authority in support of this arg ument, they cite a

trial court opinion from the 30th Judicial District in a case styled King v. Shelby County Healthcare Corporation, et al , filed June 4, 1991. The question before that court was whether the Claims Commission was aproper

forum fo r deter mination of

whether a phy sician e

mployed by

the st ate act ed willfully or
ma li ci ou sl y. Citing the exclusive jurisdiction of claims against thestate, with limited e xceptions, and two decis ions from t

he Sixth Circuit

Court of A

ppeals, t he trial c ourt conc luded tha t the Claims Commission should determine in the first instance whether the acts at issue wer e willful. The trial court, as do the d

efenda nts in the p

resent c ase, relie d upon Leaman v. Ohio Dept. of Mental Retardation , 825 F.2d 946 (6th Cir. 1987), cert. denied , 487 U.S. 1204 (1988), and White v. Ge rbitz , 860 F.2d 661 (6th Cir. 1988), cert. denied 489 U.S. 1028 (1989). Leaman in vo lv ed a s ui t b y a former employee of the department for terminating her employment. Af

ter suing in feder

al court , Ms. Leaman electe d to file a virtually identica l complaint in the Ohio Court of Claims. The district court dismiss ed as to the department based on sovereign immunity grounds. As to the individu a l defendants, the dismissal was based on a provision of the Ohio Court of Claims Act that provides that “except i n the cas e of

a civil action filed

by t he state , filing

a civil action in the c ourt of c laims results in a complete waiver of any cause of action, based on the same act or omission, which the filing party has a

gainst any

state officer

or emplo yee. ” Oh io Rev is ed C ode § 27 43. 02( A)( 1). In upholding the trial court’s dismissal, the court said that “where a claimant re presented by

competent counsel has elected to accept Ohio’s statutory offer to subject

itself to suit in the

Court of Cla

ims in exch ange for a

waiver of claims against individual state officials, nothing in the Constitution entitles the claimant to re

pudiate t he waive r if she or he loses the suit in the Court of Claims and does not even appeal the decision.” Leaman , 825 F.2d at 957.

In White , the plaintiff filed an action under 42 U.S.C. § 1983 along with pendant state claims in federal court against numerous def endants arising out of

his arrest a

nd incar ceratio n as a material witness to a murder. The defendants asserted that the pla intiff had waived

hi s cause of action in feder

al court by s u bsequently fi ling a substantially similar claim ag ainst the State of Tennessee with t he Tenne ss ee Claims Commission. The court noted that T.C.A. § 9-8-307(b) mandates that the p laintiff waive a ll claims ag ainst the individual state emp loy ees in

exchange for the st at e w ai vi ng it s s ov er ei gn im mu ni ty. They further averre d that, in a

ccorda nce with Leaman v. Ohio , he waive d his right to sue in fe deral c ourt whe

n he file d a substa

ntially similar su

it before the Tenn essee Clai ms Co mmis sion . The co urt no ted th at pri or to t he dis trict court dism issi ng th e Leaman plaintiff

’s fede ral cau se of ac tion, the c ourt of c laims held that the defendan t proper ly terminatedthe plain

tiff’s e mplo yment

and that the waiver was not void since, by finding that theplaintiff

was terminated

“in accordance

with state law,” the court of claims had determined that the defendant employer’s a

ctions were neither

ultra vires nor malicious. The White court pr oceede d to say that, unlike t he Ohi o Court of Claims in Leaman , the Tennessee Claims Commission has not yet address ed the me

rits of pla intiff’s claim. I

f the cla ims commissi on conclu ded that d efenda nts’ acts we re outside the s cope of their employ ment, the plaintiff would be free to pursue a cause of action in federal court as no waiver would have occurred. The court held that the district court erred in not dismissing the plaintiff’s federal cause of action. The cour t f urther stated that the order of dismissal entere d on rema nd should p

rovide th at, in the event the waiver provision of the Tennessee statute is not invok

ed due to t

h e d efenda

nts’ actsbeing d

eemed ou

tside the s cope of t

heir employment, the plaintiff may present an order within sixty day s of the state action reinstating his claim to the federal district court’s docket.

The trial court opinion in King interpreted Leaman and White to hold that the Claims Commission must make a prelimina

ry finding as to whether

the individ

ual defe ndants acted either mal iciously

or outside of the scope of their employ ment before suit could be instituted in the tri a l court. We do not so interpret the holdings of Leaman and White and belie ve that the langu age to that effec t is dicta. As we inte rpret tho se case s, the hold ing is tha t a filing in the claim s commission waives the right to sue in the trial court. Regardless, we would not be bound by those cases were they to hold as defendants contend. We are of the opinion tha t, when a suit is instit

uted ag ainst a state employ ee in the trial court, the defenses of scope of employ ment and lack of willful or malicious conduct are defenses which may be raised by

the defe ndant an d resolved by the trie r of facts.

After

a careful review of the complaint, we are of the opinion that

it does sta

te a cau se of action for slander and that the decision of the trial court granting the

motion to dismiss for failure to state a claim is reversed.

With respect to the claim under 42 U.S.C. § 1983, the allegation of defama tion fails to state a c laim upon w

hich relief can

be gra nted. Ha rm or injur

y to reputation, even where inflicted by an officer of the state, does not result in a deprivation of “ liberty” or “ property”protected by the du e process clause. Paul v. Davis , 424 U.S. 693, 712, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).Accord, Ellingburg v. Lucas , 518 F.2d 1196, 1197 (8th Cir. 1 975); Azar v. Conley , 456 F.2d 1382, 1388-89 (6th Cir. 1 972); Heller v. Roberts , 386 F.2d 832 (2nd Cir. 1967). The judgment of the trial court dismissing the § 1983 claim is affirmed.

This cause isremande d to the trial court fo r furthe r proce edings c onsistent with this opinion. T

he costs o f this app eal are taxed one- half

to the plain

tiff and o ne-half

to the def

endants in eq ua l s ha re , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LI LL ARD, J. (Conc

urs)