# FILED May 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk CHARLES MONTAGUE, ) Davidson Chancery ) No. 96-3872-III Plaintiff/Appellant, ) ) VS. ) ) TENNESSE E DEPARTMEN T OF ) Appeal No. CORRECTION and WARDE N ) 01A01-9711-CH-00667 HOWARD CARLTON, ) ) Defendants/Appellant

s. )
IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE ELLEN HOBBS LYLE, C HANCELLOR Charles Montague, #142349 7475 Cockrill Bend Industrial Road Nashville, Tennessee 37243 PRO SE/PLAINTIFF/APPEL LANT Sohnia W. Hong Assistant Attorney General 425 Fifth Avenue

North Second Floor, Cordell Hull Building Nashville, Tennessee 37243 ATTORNEY FOR DEFENDANTS/APPELLEES

MODIFIED, AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE CONCURS IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE-2-

CHARLES MONTAGUE, ) Davidson Chancery ) No. 96-3872-III Plaintiff/Appellant, ) ) VS. ) ) TENNESSE E DEPARTMEN T OF ) Appeal No. CORRECTION and WARDE N ) 01A01-9711-CH-00667 HOWARD CARLTON, ) ) Defendants/Appellant

s. ) 

## O P I N I O N

The plain tiff, a pri soner in the custody of the Tennessee Department of Correction, brought this action against theDepartment and its Commissioner seeking a declaratory judgment that he is entitled to a refund of $64.00 charged against his custodial account for a key lost by the prisoner.

The Trial Court sustain

ed a motion to dismiss

for failure to state a claim for which relief can be granted.
The complaint stat

es: 6) On September 4, 1995, I, Charles Montague,filled out a withdrawal for $ 64.00 Dollars.The money c amefrom my Inmate Trust Fund Account that’s within the Te nnessee De p artment

of Correction. The money was for the replacement

of a key to r

oom number 12-201,

at N orth east Correction al Cente r. I had loss the key to said room on the above date. 7) On September 5, 1995, the lock and key was replaced by Sgt. Baker. The key and lock however, was reassigne

d to another door/room within Northeast Correctional Center. 8) On September 21, 1995, the key that I lost was found andturned in to

operations at Nor

theast Correctional Center, andthe unit management

team was notified and they retrieved the key. 9) On September 21, 1995 , plaintiff filled o ut a inmate information request form to Warden Howard Carlton, and Mr
. Carlton routed it

to Sgt. Baker. Contained on the information-3- request form was my request fo r a ref und. However, Sg

t. Baker informe

d me that I would not be receiving any re fund because the lock cylinder and key was in use in anothe r door at N.E.C.C.
The order of the

Trial Court states : In the above -captioned matter the petitioner filed a petition for

declaratory judgment challenging the policies of the Tennessee Department of Cor rection concer

ning lost key

s. He seeks return of $

54.00 withdrawn from his inmate tru st acco unt for the repl acem ent of a l ost key. TennesseeCode Annotated section 4-5-223 and 4-5- 224 allow an individual to petition an agency for declaratory order regarding the applicability of the statute, rule or orde r and t hen, if denied, file an action in the Chancery Court of D avidson C ounty. But to use this procedure the policies under attack must be “rules” as contemplated by the Uniform Administrative Procedures Act. Tennessee Code Annotated section 4-5-102( 10) de fines a “rule” as an agency stateme nt of general ap

plicability

that implements or

prescribes law or policy or describes the procedures or practice requirements of the agen cy. It does not inc lude “statements

concerning onl

y the internal management of state government.” In the cas e at bar

the policy for charging inmates for key s and lock cylinders does not fit within the definition of “rules”as prescribed by Tennessee Code Annot at ed section 4- 5- 102(10). Accordingly , the policies are

not subject to review for declaratory relief. It i s therefore ORDERED that the above-captioned matter is dismissed with prejudice. In that the petitioner has qualifiedto proceed as a

pauper, the Court

assesses only

state litigation tax against the plaintiff.
This Court agrees with the c onclusio n of the Trial Judge that a suit for declaratory judgment is not an appropriate vehicle for recovery of $64.00 if incor rectly charged to plaintiff. Moreover, even if the Trial Court sh ould have grant

ed any reli

ef due under the

facts, the fact

s alleged in the complaint do not support a refund of the $64.00 as claimed.

The loss or misplace ment of a key to a lock on a door in a corr

ectional institution

is a serious matter, and requires a replacement lock operated by a different key. The finding of the lost key does not obviate the expense of the new lock.-4- Desp ite the pau per’s oath, the pl aintiff is liable f

or all costs of this p

roceeding. Th

is appeal is declared to

be a frivolous appeal requiring the assessment of attorney f ees on remand.

The judgment of the Trial Court is modified to render judgment against plaintiff for all costs accrued in that Court. As modified, said judgment is affirmed. Costs of thi s appeal ar e taxed against the plaintiff. The cause is remanded to the Trial Court for ascertainment of fees for frivolous appeal and the entry and enforcement of judgment in conformity with this opinion.
MODIFIED, AFFIRMED AND REMANDED.

_________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDLE SE CTIO N

CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE

CONCURS IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE

# FILED July 1, 1998 Cecil W. Crowson Appellate Court Cle rk 

### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE CHARLES MONTAGUE, ) Davidson Chancery ) No. 96-3872-III Plaintiff/Appellant, ) ) VS. ) Appeal No. ) 01A01-9711-CH-00667 TENNESSEE DEPARTMENT OF ) CORRECTIONS, ) ) Defendant/Appellee, )



## O R D E R
The appellant’s second petition for rehearing is denied, and the costs incident thereto are adjudged against

the appellant.

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

___________________________________ BEN H. CANTRELL, JUDGE

___________________________________ WILLIAM C. KOCH, JR., JUDGE