FILED

December 5, 1997

Cecil W. Crowson

Appellate Court Clerk

ANTONIO SWEATT, )

Petitioner/Appellant, ) Appeal No. 

v. ) 01-A-01-9706-CH-00247

ROBERT CONLEY, Warden, WILLIAM )

CALHOUN, Unit Manager, DALE )

BASHAM, Inmate Relations Coordinator, ) Chancery Court No.

SHELIA ROBERTS, Counsel, HATTIE ) 96-1100-III

MOORE, Inmate Relations Coordinator, )

EDNA FREEMAN, Health Administrator, )

DR. HAROLD BUTLER, Medical )

Physician, )

Respondents/Appellees. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE DAVIDSON COUNTY CHANCERY COURT

AT NASHVILLE, TENNESSEE

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

MR. ANTONIO SWEATT, PRO SE

TDOC #143176

L.C.R.C.F.

Rt. #1, Box #330

Tiptonville, Tennessee 38079

JOHN KNOX WALKUP

Attorney General & Reporter

ABIGAIL TURNER

Assistant Attorney General

Civil Rights & Claims Division

2nd Floor Cordell Hull Building

425 Fifth Avenue North

Nashville, Tennessee 37243-0488

ATTORNEY FOR RESPONDENTS/APPELLEES, ROBERT CONLEY,

WILLIAM CALHOUN, DALE BASHAM, SHELIA ROBERTS, HATTIE

MOORE, AND EDNA FREEMAN

C. HAYES COONEY

Watkins, McGugin, McNeilly & Rowan, P.L.L.C.

214 2nd Avenue North, Suite 300

Nashville, Tennessee 37201-1638

ATTORNEY FOR RESPONDENT/APPELLEE, DR. HAROLD BUTLER

AFFIRMED AS MODIFIED AND REMANDED

SAMUEL L. LEWIS, JUDGE
1

 Respondents Conley, Calhoun, Basham, Roberts, Moore, and Freeman will be referred to

as (“Appellees”), and respondent Dr. Harold Butler will be referred to as “Dr. Butler.”

2

OPINION

This is an appeal by petitioner/appellant, Antonio Sweatt, from an order of the

Davidson County Chancery Court dismissing Appellant’s petition against

respondents/appellees Robert Conley, William Calhoun, Dale Basham, Shelia

Roberts, Hattie Moore, Edna Freeman, and Dr. Harold Butler. The chancery court

dismissed Appellant’s petition with prejudice after determining Appellant failed to

state a claim upon which relief could be granted. The facts out of which this matter

arose are as follows.

Appellant is an inmate in the custody of the Tennessee Department of

Correction and housed at the Lake County Regional Correction Facility (“the

Facility”). Mr. Sweat filed a “petition for writ of mandamus petition for a declaratory

order and motion for temporary and permanent injunctive and affirmative equitable

relief with brief memorandum in support” on 8 April 1996. In his petition, Appellant

alleged the respondents1 violated his Constitutional rights by confining him to a cell

with a smoker. Appellant alleged he first requested placement in the non-smoking

guild upon entering the Facility on 1 March 1995. Appellant explained to Appellees

and Dr. Butler that doctors had diagnosed him with chronic sinusitis and that inhaling

second-hand cigarette smoke caused him to suffer nosebleeds, migraine headaches,

and a swollen tongue. Finally, Mr. Sweat alleged that he filed numerous grievances.

Ultimately, the Facility transferred Appellant to the non-smoking guild on 11 April

1995. In his petition, however, Appellant alleged he was still forced to breathe

second-hand smoke despite his transfer because Appellees allowed “active heavy

smokers” to live in the non-smoking guild.

Dr. Butler filed a motion to dismiss on 30 April 1996. He contended venue

was improper under Tennessee Code Annotated section 20-4-102 and forum non

conveniens. Appellant filed a motion to amend his complaint on 6 May 1996. He

sought to add eight parties and a claim involving retaliation. Appellees filed a motion

to dismiss for lack of venue and forum non conveniens on 8 May 1996.

The court filed an order on 31 May 1996 addressing Dr. Butler’s motion. The
2

 Appellant’s motion for summary judgment stated:

Comes Now, the plaintiff, Antonio Sweatt (hereinafter referred to as

plaintiff), by and through Pro-se counsel, and pursuant to Tennessee Rules of Civil

Procedure, rule 56 hereby move the court to summarily granting the Motion of

Plaintiff’s because there is Genuine dispute as to a summary judgment as a matter of

law. The Plaintiff is entitled to summary judgment rejecting the defendants demands

against him as a matter of law supported by the contemporaneously filed

Memorandum of Law i[n] Support of Motion for Summary Judgment. In Further

support of this Motion for summary Judgment, plaintiff contemporaneously file a

statement of Disputed Facts, and Exhibits.

3

court dismissed the action “on the grounds that venue does not lie in Davidson

County, Tennessee.” On 17 June 1996, the court filed an order granting Appellant’s

motion for leave to file an amended complaint and overruling Appellees’ motion to

dismiss for lack of venue. The court did not explain the basis for its decisions.

Appellees filed a motion to dismiss for failure to state a claim upon which relief can

be granted on 9 July 1996.

Appellant filed a motion for summary judgment on 18 July 1996. Appellees

filed a motion to strike Appellant’s motion for summary judgment. Their motion

stated: “As a basis for this motion, [Appellees] rely on the disjointed and inconsistent

nature of the documents and on the [Appellant’s] failure to follow Local Rule

12.05(c), and provide defendants with a notice of hearing.”2 The court granted

Appellees’ motion on 4 September 1996. Appellant filed a motion for leave to file

a supplemental complaint on 22 January 1997.

The court filed a memorandum and order on 24 January 1997. The court held

Appellant failed to state a claim for a declaratory judgment for the following reasons:

1) Appellant failed to allege he requested a declaratory order from the agency as

required by Tennessee Code Annotated section 4-5-224(b); 2) Appellant failed to

specify any statute, rule, or order as the subject of the action; 3) Appellant improperly

sought a declaratory judgment against state officers in their official capacity; and 4)

Appellant’s claim is actually a section 1983 action for the violation of his civil rights.

The court also determined the complaint failed to state a claim requiring the relief of

mandamus because the petition failed “to set forth or define any preemptory

obligation to act with respect to the cell assignment by the petitioner or his

roommate.” Given its findings, the court dismissed Appellant’s action with

prejudice. Thereafter, Appellant filed a notice of appeal from the 24 January order.

The court entered a final order on 4 February 1997. The court overruled Appellant’s
3

 Appellant’s notice of appeal expressly states that he is appealing the 24 January 1997 order.

It does not mention the 31 May 1996 order granting Dr. Butler’s motion. Therefore, it is the opinion

of this court that this appeal involves only those respondents referred to herein as “Appellees.”

4

outstanding motions, including his motion for leave to file a supplemental complaint,

after determining the motions were moot.

Appellant lists twelve issues for our review, nevertheless, there appear to be

only four disputes. These are: 1) whether the court erred in granting Appellees’3

motion to dismiss for failure to state a claim upon which relief can be granted; 2)

whether the court erred in granting Respondent’s motion to stay discovery; 3)

whether the court erred in dismissing Appellant’s motion for summary judgment; and

4) whether the court erred in overruling Appellant’s motion for leave to file a

supplemental complaint.

I. MOTION TO DISMISS

Tennessee Rules of Civil Procedure 12.02 describes the different types of

motions to dismiss and how a party should present the defense asserted in the motion.

The rule provides: “[T]he following defenses may at the option of the pleader be

made by motion in writing: (1) lack of jurisdiction over the subject matter . . . (3)

improper venue . . . (6) failure to state a claim upon which relief can be granted . . .

.” TENN R. CIV. P. 12.02. Appellees’ motion specifically stated the basis of its

motion as number six, failure to state a claim upon which relief can be granted.

A motion to dismiss for failure to state a claim upon which relief can be

granted “tests the legal sufficiency of a complaint; it admits the truth of all relevant

and material allegations, ‘but asserts that such facts do not constitute a cause of action

as a matter of law.’” Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997) (quoting

Pursell v. First Am. Nat’l Bank, 937 S.W.2d 838 (Tenn.1996) (emphasis added)).

“In reviewing an appeal from an order dismissing a suit for failure to state a claim

upon which relief can be granted, we obviously are limited to the allegations in the

complaint, and we must construe the complaint liberally in favor of the plaintiff,

taking all of the allegations of fact therein as true.” Randolph v. Dominion Bank, 826

S.W.2d 477, 478 (Tenn. App. 1991) (citing Huckeby v. Spangler, 521 S.W.2d 568,

571 (Tenn. 1975)). “However, the inferences to be drawn from the facts or the legal
5

conclusions set forth in a complaint are not required to be taken as true.” Riggs, 941

S.W.2d at 47-8 (citing Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. App.1992)).

Appellant’s petition attempts to state three claims. The first two, writ of

mandamus and declaratory judgment, are listed in the caption. The third claim,

violation of Appellant’s civil rights, is apparent from a reading of the petition. Thus,

the issue before this court is whether the petition, using the test stated above, states

a claim for writ of mandamus, declaratory judgment, or violation of civil rights.

A. WRIT OF MANDAMUS

A writ of mandamus is “a summary remedy, extraordinary in its nature.”

Peerless Constr. Co. v. Bass, 158 Tenn. 518, 522, 14 S.W.2d 732, 733 (1929). “‘The

office of mandamus is to execute, not adjudicate. It does not ascertain or adjust

mutual claims or rights between the parties. If the right be doubtful, it must be first

established in some other form of action; mandamus will not lie to establish as well

as enforce a claim of uncertain merit.’” Id. at 732 (quoting FERRIS,EXTRAORDINARY

LEGAL REMEDIES § 194) (quoted in Paduch v. City of Johnson City, 896 S.W.2d

767, 770 (Tenn. 1995)). Another requisite of obtaining a writ of mandamus is the

lack of any other “specific remedy to enforce the right.” Hayes v. Civil Serv.

Comm’n, 907 S.W.2d 826, 828 (Tenn. App. 1995). “Mandamus generally will not

be issued if the petitioner has a legal remedy that is equally convenient, complete,

beneficial, and effective . . . .” Meighan v. U.S. Sprint Communications Co., 942

S.W.2d 476, 479 (Tenn. 1997).

Appellants’ petition fails to state a claim for writ of mandamus. Appellant

alleges in his petition that there are non-smoking policies at the Facility, in particular

policy number 112.10. Appellant also contends appellee Robert Conley failed to

enforce these policies. For the sake of this opinion, we will assume Appellant has a

right to have these policies enforced and Appellees have an obligation to enforce the

policies. As previously stated, Appellant has attempted to state a section 1983 civil

rights claim for damages and a declaratory judgment claim in addition to his petition

for writ of mandamus. The Tennessee Supreme Court has held that a “§ 1983 is an

adequate remedy, thus obviating the need for a writ of mandamus . . . .” Davis v.
6

McClaran, 909 S.W.2d 412, 420 n.8 (Tenn. 1995). Moreover, a party may petition

a court to determine the “legal validity or applicability of a statute, rule or order of

an agency.” TENN. CODE ANN. § 4-5-224(a) (Supp. 1997). As a matter of law,

Appellant could not have stated a claim for a writ of mandamus if he had other

remedies available. Clearly, this is the case. Appellant could have a remedy under

either section 1983 or Tennessee Code Annotated section 4-5-224.

B. DECLARATORY JUDGMENT

Appellantasserts a declaratory judgment claimundertheDeclaratory Judgment

Act, Tennessee Code Annotated section 29-14-103, and the Uniform Administrative

Procedures Act, Tennessee Code Annotated section 4-5-224. We address each of

these claim separately.

The Declaratory Judgment Act provides:

Any person interested under a deed, will, written contract, or other

writings constituting a contract, or whose rights, status, or other legal

relations are affected by a statute, municipal ordinance, contract, or

franchise, may have determined any question of construction or validity

arising under the instrument, statute, ordinance, contract, or franchise

and obtain a declaration of rights, status or other legal relations

thereunder.

Id. § 29-14-103 (1980). There are, however, certain limitations on a court’s ability

to hear claims based on the above section. Specifically, a court may not entertain a

suit “against the state, or against any officer of the state acting by authority of the

state, with a view to reach the state, its treasury, funds, or property.” Id. § 20-13-102

(1994); see Hill v. Beeler, 199 Tenn. 325, 332, 286 S.W.2d 868, 871 (1956);

Campbell v. Sundquist, 926 S.W.2d 250, 256-57 (Tenn. App. 1996); Carter v.

McWherter, 859 S.W.2d 343, 346 (Tenn. App. 1993). It is the opinion of this court

that Appellant seeks to reach the state treasury through this action and that the

chancery court does not have jurisdiction to hear the case for this reason.

Appellant also attempts to bring a declaratory judgment action under

Tennessee Code Annotated section 4-5-224. This section allows a party to seek a

declaratory judgment to challenge the “legal validity or applicability of a statute, rule

or order of an agency to specified circumstances.” TENN. CODE ANN. § 4-5-224(a)

(Supp.1997). A party must, however, seek a declaratory order from the agency prior
7

to filing a petition for declaratory judgment. See id. § 4-5-224(b). The chancery

court stated as follows in its memorandum and order:

In the complaint there is no allegation that the petitioner sought any

relief from the agency before he invoked the jurisdiction of this Court.

Accordingly, any claim the petitioner is making under Tennessee Code

Annotated section 4-5-224(b) must be dismissed on the grounds that this

Court does not have jurisdiction under that statute where that agency has

not been first petitioned.

It is the opinion of this court that the chancery court correctly concluded that it lacked

subject matter jurisdiction.

C. SECTION 1983 CIVIL RIGHTS ACTION

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District 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, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . . . 

42 U.S.C.A. § 1983 (Supp. 1997). Thus, a petitioner must at the very least allege: 1)

he or she is a citizen of the United States or within the jurisdiction; 2) he or she

possesses a right, privilege, or immunity secured by the Constitution or laws of the

United States; 3) a person acting under color of state law deprived the petitioner of

that right, privilege, or immunity. It is the opinion of this court that Appellant met

these requirements. He alleged Appellees violated his constitutional rights when they

refused to transfer him to a non-smoking guild and then refused to enforce the nonsmoking policy once they had transferred Appellant. In addition, Appellant alleged

in detail the position held by each respondent and their role in depriving Appellant

of his constitutional rights. Appellant stated a claim under title 42 section 1983 of

the United States Code.

Appellees, however, also raise the issue of venue in their brief. It is their

contention that Appellant’s petition failed to allege facts establishing that venue lies

in the Davidson County Chancery Court. The chancery court overruled Appellees’

motion to dismiss for improper venue in its 17 June 1996 order. Unfortunately, the

court did not provide any explanation for its decision. We can only assume the court
4

 “Transitory actions are actions for causes that may have happened anywhere . . . .” Curtis

v. Garrison, 211 Tenn. 339, 342, 364 S.W.2d 933, 934 (1963). A cause of action that may arise

anywhere is transitory, but one that could arise only in one place is local. See Burger v. Parker, 154

Tenn. 279, 290 S.W. 22, 22 (1927). A person may violate another’s civil rights anywhere, thus, a

claim for the violation is a transitory action. See id. at 22-23

5

 In 1996, the general Assembly enacted a set of statutes governing the filing of lawsuits by

inmates. See 1996 TENN.PUB.ACTS ch. 913. Included within these statutes is a provision requiring

a plaintiff inmate to file a claim for an action which accrued while the plaintiff was an inmate in the

county in which the facility is located. See id. § 3. These statutes are not, however, applicable to

the instant case as they were not effective until 8 May 1996 and Appellant filed his petition in April

1996.

8

based its improper venue determination on the declaratory judgement and writ of

mandamus actions because these were the only actions addressed by the court when

deciding Appellees’ motion to dismiss for failure to state a claim. Thus, it seems the

chancery court did not determine whether venue was proper given the fact that

Appellant stated a section 1983 claim.

It is the opinion of this court that venue in the Davidson County Chancery

Court is improper. A claim for a violation of civil rights is a transitory action.4

Tennessee Code Annotated section 20-4-101 provides where venue lies in civil

actions of a transitory nature.5 That section provides: 

(a) In all civil actions of a transitory nature, unless venue is

otherwise expressly provided for, the action may be brought in the

county where the cause of action arose or in the county where the

defendant resides or is found.

(b) If, however, the plaintiff and defendant both reside in the same

county in this state, then such action shall be brought either in the

county where the cause of action arose or in the county of their

residence.

TENN. CODE ANN. § 20-4-101(a),(b) (1994). There are no statutes specifically

providing for venue in section 1983 actions. Thus, the proper venue in this case is

either in the county where the cause of action arose or in the county where Appellees

reside or are found. See id.

It is clear from the petition that the cause of action arose at the Facility in Lake

County. In addition, we know from the petition that Appellees Calhoun, Basham,

Roberts, Moore, and Freeman worked in Lake County and Appellee Conley worked

in Lauderdale County at the time Appellant filed the petition. There are not,

however, any allegations regarding the residences of Appellees or any evidence of

where Appellees were found. It is reasonable to infer, however, that Appellees did
9

not reside in Davidson County and were not found in Davidson County as Lauderdale

and Lake Counties are on the western boundary of the State and Davidson County is

near the center of the State. Because the cause of action did not arise in Davidson

County and Appellees did not reside in or were not found in Davidson County, venue

did not lie in Davidson County. Thus, the chancery court erred when it overruled

Appellees’ motion to dismiss for improper venue. Moreover, pursuant to Rule 13(b)

of the Tennessee Rules of Appellate Procedure this court holds that venue was also

improper as to those respondents added as a result of the amended petition. Our

reasoning being the same as that stated above.

It is the opinion of this court that Appellant failed to state a claim for writ of

mandamus and that the Davidson County Chancery Court lacked subject matter

jurisdiction over the declaratory judgment actions. Appellant stated a claim for a

violation of his civil rights under title 42 section 1983 of the United States Code, but

filed his claim in the wrong court. It is the opinion of this court that the motion to

dismiss should have been granted for the above stated reasons. Given our decision,

it is our opinion that the claim for writ of mandamus should be dismissed

with prejudice and the declaratory judgment actions and the section 1983 action

should be dismissed without prejudice. See TENN. R. CIV. P. 41.02(3); Randle v.

Lyle, 682 S.W.2d 219, 220 (Tenn. App. 1984).

II. OTHER MOTIONS

A. MOTION TO STAY DISCOVERY

It is the opinion of this court that the chancery court did not err in granting

Appellees’ motion to stay discovery pending the outcome of the motion to dismiss

for failure to state a claim. The holding was appropriate given the nature of the

pending motion and burden of continuing discovery.

B. MOTION FOR SUMMARY JUDGMENT

It is the opinion of this court that the chancery court correctly dismissed

Appellant’s motion for summary judgment. Not only was the motion

incomprehensible, but it admitted there were disputed, genuine issues of fact. A party
10

is not entitled to summary judgment if there are genuine issues of material fact. Byrd

v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The Tennessee Supreme Court defined

a material fact as follows:

A disputed fact is material if it must be decided in order to resolve the

substantive claim or defense at which the motion is directed. Therefore,

when confronted with a disputed fact, the court must examine the

elements of the claim or defense at issue in the motion to determine

whether the resolution of that fact will effect the disposition of any of

those claims or defenses.

Id. at 215. The record in this case contains disputes over facts material to the

determination of whether Appellees violated Appellant’s constitutional rights.

Therefore, we find no error with the chancery court’s decision to dismiss Appellant’s

motion for summary judgment.

C. MOTION TO SUPPLEMENT

The Tennessee Rules of Civil Procedure provide:

A party may amend the party's pleadings once as a matter of

course at any time before a responsive pleading is served . . . .

Otherwise a party may amend the party's pleadings only by written

consent of the adverse party or by leave of court; and leave shall be

freely given when justice so requires.

Appellant had already amended his complaint once when he filed the motion to

supplement his petition. Thus, it was necessary to receive written consent of

Appellees and the respondents added as a result of the first amendment or permission

from the court.

The chancery court denied Appellant’s request. It determined the issue was

moot because the court had dismissed the case for failure to state a claim upon which

relief can be granted. We agree with the trial court’s ruling.

III. CONCLUSION

Therefore, it follows that the decision of the chancery court is affirmed as

modified. The case is remanded for the entry of a judgment in conformity with this

decision and for any further necessary proceedings. Costs of appeal are taxed against

petitioner/appellant, Antonio Sweatt.
11

____________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

____________________________

BEN H. CANTRELL, JUDGE

____________________________

WILLIAM C. KOCH, JR. JUDGE