FILED

May 29, 1998

Cecil W. Crowson

Appellate Court Clerk

CHARLES MONTAGUE, ) Davidson Chancery

) No. 96-3872-III

Plaintiff/Appellant, )

)

VS. )

)

TENNESSEE DEPARTMENT OF ) Appeal No.

CORRECTION and WARDEN ) 01A01-9711-CH-00667

HOWARD CARLTON, )

)

Defendants/Appellants. )

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

Charles Montague, #142349

7475 Cockrill Bend Industrial Road

Nashville, Tennessee 37243

PRO SE/PLAINTIFF/APPELLANT

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, MIDDLE SECTION

CONCUR:

BEN H. CANTRELL, JUDGE

CONCURS IN SEPARATE OPINION:

WILLIAM C. KOCH, JR., JUDGE
-2-

CHARLES MONTAGUE, ) Davidson Chancery

) No. 96-3872-III

Plaintiff/Appellant, )

)

VS. )

)

TENNESSEE DEPARTMENT OF ) Appeal No.

CORRECTION and WARDEN ) 01A01-9711-CH-00667

HOWARD CARLTON, )

)

Defendants/Appellants. )

O P I N I O N

The plaintiff, a prisoner in the custody of the Tennessee Department of Correction,

brought this action against the Department 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 sustained a motion to dismiss for failure to state a claim for which relief

can be granted.

The complaint states:

6) On September 4, 1995, I, Charles Montague, filled out

a withdrawal for $64.00 Dollars. The money came from my

Inmate Trust Fund Account that’s within the Tennessee

Department of Correction. The money was for the

replacement of a key to room number 12-201, at Northeast

Correctional Center. 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 reassigned to

another door/room within Northeast Correctional Center.

8) On September 21, 1995, the key that I lost was found

and turned in to operations at Northeast Correctional Center,

and the unit management team was notified and they retrieved

the key.

9) On September 21, 1995, plaintiff filled out a inmate

information request form to Warden Howard Carlton, andMr.

Carlton routed it to Sgt. Baker. Contained on the information
-3-

request form was my request for a refund. However, Sgt.

Baker informed me that I would not be receiving any refund

because the lock cylinder and key was in use in another 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 ofCorrection concerning lost keys.

He seeks return of $54.00 withdrawn from his inmate trust

account for the replacement of a lost key.

Tennessee Code 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 order

and then, if denied, file an action in the Chancery Court of

Davidson County. 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) defines a “rule” as an agency statement

of general applicability that implements or prescribes law or

policy or describes the procedures or practice requirements of

the agency. It does not include “statements concerning only

the internal management of state government.”

In the case at bar the policy for charging inmates for

keys and lock cylinders does not fit within the definition of

“rules” as prescribed by Tennessee Code Annotated section

4-5-102(10). Accordingly, the policies are not subject to

review for declaratory relief.

It is therefore ORDERED that the above-captioned

matter is dismissed with prejudice. In that the petitioner has

qualified to proceed as a pauper, the Court assesses only state

litigation tax against the plaintiff.

This Court agrees with the conclusion of the Trial Judge that a suit for declaratory

judgment is not an appropriate vehicle for recovery of $64.00 if incorrectly charged to plaintiff.

Moreover, even if the Trial Court should have granted any relief due under the facts, the facts

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

The loss or misplacement of a key to a lock on a door in a correctional 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-

Despite the pauper’s oath, the plaintiff is liable for all costs of this proceeding. This

appeal is declared to be a frivolous appeal requiring the assessment of attorney fees 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 this appeal are

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

PRESIDINGJUDGE,MIDDLE SECTION

CONCUR:

_____________________________

BEN H. CANTRELL, JUDGE

CONCURS IN SEPARATE OPINION:

WILLIAM C. KOCH, JR., JUDGE
FILED

July 1, 1998

Cecil W. Crowson

Appellate Court Clerk

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