# FILED

December 5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk ANTONIO SWEATT, ) Petitione r/Appell ant, ) Appeal No. v. ) 01-A-01- 9706-CH- 00247 ROBERT CONLEY, Warden, WILLIAM ) CALHOUN, Unit Manager, DALE ) BASHAM, Inmate Re lations Coordinator, ) Chancer y Court No

. SHELIA ROB ERTS, Counsel, HAT TIE ) 96-1100-III MOORE, Inmate Relations Coordinator, ) EDNA FREE

MAN, Health Administrator, ) DR. HAROL

D BUTLER, Medical ) Physician, ) Respondents/Appelle es. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE APPEAL FRO M THE DAVIDSON COUN TY CHANCE

RY COURT AT NASHVILLE, TENNESSEE THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR MR. ANTONI O SWEATT, PRO SE TDOC #143176 L.C.R.C.F. Rt. #1, B ox #330 Tiptonville , Tenne ssee 38079 JOHN KNOX WALKUP Attorney General & Reporter ABIGAIL TURNER Assistant Attorney General Civil Right s & Claims Division 2nd Floor Co rdell Hul l Building 425 Fifth Avenue Nor

th Nashville , Tenne ssee 37243- 0488 ATTORNEY FOR RESPONDENTS/APPELLEES, ROBERT CONLEY, WILLIAM CAL

HOUN, DA

LE BASHAM, SHELIA RO BERTS, HAT TIE MOORE, AND EDNA FREEMAN C. HAYES COONEY Watkins, McGugin, McNeilly & Rowan, P. L.L.C. 214 2nd Avenu e North, Suite 300 Nashville , Tenne ssee 37201- 1638 ATTORNEY FOR RESPONDENT/APPELLEE, DR. HAROLD BUTLER

AFFIRMED AS MODIFIED AND REMANDED SAMUEL L. LEWIS, JUDGE1 Responde nts Conley, Calhoun, Ba sham, Robe rts, Moor e, and Fr eeman w ill be refer

red to as (“Appellees”), and respondent Dr . Harold Butler will be referred to as “Dr. Butler.” 2 

## O PINI ON
This is an appeal by petitioner/appellant, Antonio Sweatt, from an order of the Davidson County Chan cery Cour t dismissing A

ppellant’s petiti on ag ainst respondents/appellees Robert Co nley, Wi l l iam Calho un, Dale Basham, Shelia Rober ts, Hattie Moore, Edna Freeman, and Dr. Harold Butler. The c hancery court dismissed Appellant’s petitio n with pre judice af ter deter mining Appe llant fai led to state a claim upon which relief c ould be granted. The facts out of which this matter

arose ar e as follow s.
Appellant is an inmat e in the custo dy of the T ennessee D epartme nt of Correct ion and housed a

t the Lake

County Regi onal Corr

ection Fa cility (“ the Facility”). Mr. Sweat filed a “petiti on for

writ of mandamus petition for a declaratory order and motion for temporary and perma nent injunct

ive and af firmativ e equitabl e relief with brie f memora

ndum in support” on 8 April 199 6. In his pe tition, A ppellant alleged the respon dents 1 violated his Constitut ional right s by confinin g him to a cell witha smoker. Appellant alleged he first reques ted pla cement in the non-smo king guildupon entering the Facility on 1 March 1995. Appellant explained to Appellees and Dr. Butler

that doctors had diagnose d him with c hronic sinus itis and tha t inhaling second-ha

nd cigarett

e smoke ca

used him to suffer nosebleeds , migrai ne headache s, and a swollen to ngue. Fin ally, Mr . Swea t alleged t hat he file d numerous grievanc es. Ultimate ly, the Faci lity transf erred A ppellant tothe non-smo king guild on 11 Ap ril 1995. In his peti tion, howe ver, Ap pellant a lleged he w as still fo rced to br eathe second-ha

nd smoke despi te his tra nsfer bec ause Appe llees allowed “active heavy smokers” t

o live in the

non-smoking g uild.

Dr. Butler f

iled a moti on to dismiss o n 30 April 1 996. He c ontended venu e
was improper under Tennessee Code Annotated sect io n 20-4-102 a nd forum non conveniens. Appellan

t filed a motion to ame nd his co mplaint o n 6 May 199 6. He sought to add eight part ies and a c laim involvi ng retalia tion. App ellees f

iled a moti on to dismiss f

or lack of venue and f

orum non conv eniens on 8 M ay 1996.

The court fil ed an orde

r on 31 May 19 96 addressi ng Dr. Butler’s motion. T he2 Appellant’s motion for summary judgment stated: Comes Now, the plaintiff, Antonio Sweatt (hereinafter ref erred to as plaintiff), by and through Pro-se counsel, and pursuant to Tennessee Rules of Civil Procedu r e, 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 La w i[n] Support of Motion for Summary Judgment. In Further support of this Motion for summary Judgment, plai ntif f contemporaneously file a statemen t of Disput

ed Facts, and Exhib its.

3 courtdismissed t

he action “ on the grounds that venue does n ot lie in Davidson County, Tennessee.” On 17 June 1996, the court filed an order granting Appellant’s motionfor leave to file an amendedcomplaint and overr uling Appel lees’ mot

ion to dismiss for lack

of venue . Th e court did not explain the basis f

or its deci sions. Appellees filed a motion to dismiss for failure to state a claim upon

which relief can be grante d on 9 July 1996.
Appellant filed a motion for

summary judgment on 18 July 1996. Appellees filed a motion to s trike App ellant’s m otion for su mmary judg ment. T heir moti on stated: “As a ba sis for this motion, [ Appellee s] rely on t he disjointed a

nd inconsisten

t nature of the docu ments and on the [Appe llant’s] failure to follow L ocal Rule 12.05(c), and provide

defendant s with a not

ice of hearing .” 2 The court granted Appellee s’ motion on 4 Septembe r 1996. A

ppellant f iled a moti on for leav e to file a suppleme ntal compla

int on 22 Janua

ry 1997.

The court fil ed a

memorandu m and order o n 24 Janu ary 1997. The cour t held Appellant failed to state a

claim for a declaratory judgm

ent for the followingreasons: 1) Appellant failed t

o alle ge he req uested a declaratory order from the agency as required by Tennessee Code A nnot ated sect ion 4-5-224(

b); 2) App ellant fa

iled to specify any statute, rule, or order as the subje ct of the a ction; 3) Appellant improper ly sought a declaratory judgm

ent against sta

te offic ers in their offici al capac ity; and 4) Appellant’s claim is a

ctually a s ection 1983 a

ction for t he violation

of his civil

rights. The court alsodetermin ed the complaint failed to state aclaim re quiring the relief o f mandamus because the petition failed “to set forth or define any preemptory obligation

to act wi th respec t to the ce ll assig nment by t he petitione

r or his roommate.” Given its fi ndings , t h e court dis missed App ellant’s a ction with prejudice. Thereafter, Appellant filed a notice of appeal from the 24 January order. The courtentered a final order on 4 February 1997. The court overruled Appellant’s3 Appellant’s notice of appeal expressly states that he is appealing the 24 January 1997 order.

It does not me

ntion the 3 1 May 1996

order gr anting Dr . Butler’ s motion. Th erefor e, it is the opinion of this court that this appeal involves only those respondents referred to her ein as “Appellees.” 4 outstanding motions, including his motion for leave to file a supplemental complaint, after determining the motions w ere moot.
Appellant lists twelve issues for our r eview , nevert heless, t here appe ar to be only four disput

es. The se are: 1 ) whethe r the cour t erred i n granting A

ppellees’ 3 motionto dismiss for failure to state a claim upon which relief can be g ranted; 2) whether the court e

rred in granting Resp ondent’s m oti on to stay disc overy; 3) whether the court erredin dismissing Appellant’s motion for summary judgment; a nd 4) whether

the court e

rred in ove

rruling A ppellant’s motion for

leave to file a supplement al compla

int.

I. MOTION TO DISMISS

Tennessee Rules of C ivil Proce dure 12.02 describe s th e di fferent

types of motions to dismiss and how a par ty should present th e defense

asserted in the motio n. The rule pro vides: “[T ]he follow ing defense s may at the option of the

pleader b e made by motio n in wr iting : (1) lac k of jurisdi ction over the subject matter . . . (3) improper v enue . . . (6) failu re to state a claim upon which relief can be grant ed . . . .” T EN N R

. C IV
. P. 12.02. Appellee s’ motion spe cifically stated the basis of it s motion as num

ber six, f ailure to s tate a cl aim upon which relie f can be granted.

A motion to dism

iss for fa ilure to sta

te a clai m upon w hich relie f can be granted “tests the legal sufficie ncy of a co mplaint; it admits the

truth of all rele vant and materia

l allegati ons, ‘but a sserts that such facts do not constit

ute a cause of

action

as a matter of law.’” Riggs v. B urson , 941 S.W .2d 44, 47 (Te nn. 1997) ( quoting Pursell v. First Am . Nat’ l Bank , 937 S.W.2d 838 (Tenn.1996) (emphasis added)). “In reviewi ng an appea

l from an order dism

issing a suit

for failure to s tate a cl aim upon which r

elief ca n be grante d, we obviousl y are limi ted to the allega tions in the complaint, and we must construe the complaint libera lly in favo r of the plaintiff, taking all of

the allegations of fact therein as true.” Randolph v. Dominion Bank , 826 S.W.2 d 477, 478 (Tenn . App. 1 991) (citi ng Huckeby v. Spangler , 521 S.W .2d 568, 571 (Tenn. 1975)). “However, the inferences to be drawn f rom the facts or the legal5

conclusions set forth i n a complai nt are not re quired to be taken as true.” Riggs , 941 S.W.2 d at 47-8 (c iting Dobbs v. Guenther , 846 S.W .2d270, 273 (T enn. App.1992)).
Appellant’s pe tition a ttempts to s tate thre e claims. The fir st two, w rit of mandamus and decla

ratory jud gment, a

re listed in the capt

ion. The th ird claim, violation of Appellant’s civil right s, is appa rent from a r eading of t

he petition. Thus, the issue be fore this c ourt is whether the petition, usi ng the test stated above, states a claim f or writ o f mandamu s, decla ratory jud gment, or

violation of

civil right s.

A. WRIT OF MANDAMUS

A writ of manda mus is “a su mmary remedy , extraordi nary in it s nature.” Peerles s Constr. C

o. v. B ass , 158 Tenn. 518, 522, 1 4 S.W. 2d 732, 733 ( 1929). “‘ The offic e of mandam

us is to exec ute, not adjudicate. It does not ascerta in or adjus t mutual claims or rights between the parties. If the right be

doubtful, it must be f

irst established in some otherform of a ction; mand amus will

not lie to e stablish as well

as enforce a claim of uncertain merit.’” Id. at732 (quoting F ERRIS , E XTRAORDINARY L EGAL R E M EDIES § 194) (quote d in Paduch v. City of Johnson C

ity , 896 S.W .2d 767, 7 70 (Tenn. 1995)). A nother re quisite of obtaining a w rit of ma ndamus is th e la ck of any other “specific remedy to enforce the right.” Hayes v. Civil Serv. Comm’n , 907 S.W .2d 826, 82 8 (Tenn. App. 1995) . “Manda mus genera

lly willnot be issued if the pet

itioner ha s a legal r

emedy that

is equally c onvenient, comple te , ben eficial, an d effective . . . .” Meighan v. U.S . Sprint Communic

ations Co. , 942 S.W.2d 476, 479 (Tenn. 1997).
Appellant s’ petition fails to state a claim fo r writ of mandamus. Appellan

t alleges in his petition that there are non-smoking policies at the Facility, in particular policy number 112. 10. Appe llant a lso contends appellee Robert Co nley faile d to enforce these polic ies. For the sake of this opinion, we will assume Appellant has a right to have these policies enforced and Appellees have an obligation toenforce the policies. As previ ously stated, Appellant has attem

pted to stat

e a secti on 1983 civil rights claim for damages and a decl aratory j udgment cla im in additi on to his petition for writ of mandamus. The Tennessee Supreme Court has held that a “§ 1983 is an

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

McClaran , 909 S.W.2d 41 2, 420 n.8 (Tenn. 1995). Moreover, a party ma y petition
acourt to det ermine the “lega l validity or

applicabi lity of a st atute, r ule or orde

r of
an agency.” T ENN
. C ODE A NN . § 4-5-22 4( a) (Supp. 199 7). As a matter of law, Appellant could not have stated a claim for a writ of mandamus if he had other remedies available . Clear ly, this is the c ase. A

ppellant c ould have a remedyunder either se ction 1983 or

Tennesse e Code Annotated sec tion 4-5-224

.

B. DECLARATORY JUDGMENT
Appellant as serts a de clarator y judgment claim under the Declaratory Judgmen t Act, Tennessee Code Annot ated sect ion 29-14-103 , and the U

niform A dministrat

ive Procedures Act, T ennessee C ode Annota ted sectio n 4-5-224. We address e ach of these cla im separa tely.

The Dec laratory

Judgment A ct provides : Any person in terested u nder a deed, wi ll, wr itten contract, or other writings consti tut ing a contract, or whose rights, status, or other legal relations are aff

ected by a

statute, municipal ordinance , contra ct, or franchise, may have d etermine d any questio n of construct ion or valid

ity arising under the i nstrumen t, statute , ordinance , con tract, or franc hise and obtain a de claratio n of rights, status or ot her legal relations thereunder. Id. § 29-14-103 (1980). T here are , howeve

r, cer tain limitation s on a court ’s ability to hear claims b ased on th e above sect ion. Specifi cally, a court may not entertai n a suit “against t

he state, or against

any offic er of the

state ac ting by author

it y of th e state, with a vie w to rea

ch the stat e, its tr easury, funds, or property.” Id. § 20-13-102 (1994); see Hill v. Beeler , 199 Tenn. 32 5, 332, 286 S.W.2d 868, 871 (1956) ; Campbell v. Sun dquist , 926 S.W .2d 250, 25 6-57 (Te nn . App. 1 996); Carter v. McWherter , 859 S.W. 2d 343, 346 (Tenn. App. 1993) . It is the opinion of thi s court that Appellant seeks t o re ach the sta te treas ury through t

his action a

nd that the chancer y court does not have jur isdiction to hear the c ase for t his reason.
Appe llant

also attem

pts to bring a

declara tory judgment ac tion under Tennessee Code Annotated sect ion 4-5-224 . This se ction allow s 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.” T ENN
. C ODE A NN . § 4-5-224(a) (Supp.1997). A partymust, how ever, se ek a decla ratory or der from the agenc y prior7

to filing a p etition for declarat ory judg ment. See id. § 4-5-22 4 (b). The chancery court stated as follows in its memorandum and order: In the complaint there is no al leg ation that t he petitione

r sought any relief from the agency bef

ore he invok

ed the juri sdiction of this Court. Accordi ngly, any claim

the petitioner is making under Tennessee Code Annotated section 4- 5-224(b) must be dismisse d on the groun ds that this Courtdoes not have jurisdiction under thatstatute where that agency has not been first petitio ned. Itis the opinion of thi s court tha t the chancery court correctly concluded that it lacked subject ma

tter juri sdiction.

C. SECTION 1983 CIVIL RIGHTS A CTION

Section 198 3 provides: Every person wh o, under c olor of any statute, ordinance , regula tion, custom, or usage, of any Sta te or Te rritory or the Distr ict of Columbia, subjects, or causes to be subjec ted, any c itizen of t he United States or otherpersonwithin the jurisdi ction ther eof to the deprivation

of any rights, pr ivileges, or immunit

ies secur ed by the Co nstitution an d laws, shall be lia

ble to the pa

rty injured in

an action a

t law, s uit in equity, or other pro per proceed ing for red ress . . . . 42 U.S.C.A. § 1983 (Supp. 1997). Thus, a petitioner must at the very leas t allege: 1) he or she is a

citizen of

the Unite d States o r within t he jurisdic tion; 2) he o r she possesses a

right, pr ivilege, or immunit

y secured by the Consti tution or

laws of t he United States; 3) a

person ac ting under c olor of state law deprived t

he petitione

r of that right, pr

ivilege, or immun ity. It is the opinion of this court that Appellant met these requirem

ents. H e alleged

Appell ees vi olated his constitutional rights when they refused to transfer him to a non-smoking guild and then refused t o enforce the nonsmoking policy once

they had tr ansferr

ed Appell ant. In a

ddition, Appellant alleged in detail the

posit i on held by ea

ch respondent and their

role in dep riving Appe llant of his constitutional rights. Appellant stated a claim under title 42 section 19 83 of the United States Code.
Appellee s, however, also raise the issue o f venue in t heir brie f. It is their contention

that Appe llant’s petition failed toallege facts establishing that venue lies in the David son County Cha ncery Cour

t. The chancery court over ruled Appe llees’ motionto dismiss f

or improper v enue in it s 17 June 1996 ord er. Unfortun ately, th e courtdid not provide any explana tion for its decision. We can only assume the court4 “Transitory actions are actions for cause s thatmay have happened anywhere . . . .” Curtis

v. Garrison , 211 Tenn. 339, 342, 364 S.W.2d 933, 934 (1 963). A c ause of a ction tha t may aris e anywhereis 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 statutesgoverning the filing of lawsuits by inmates. See 1996 T ENN
. P UB
. A CTS 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 w

hich the f acility is located. See id. § 3. These statutes a re not, ho wever, applica

ble to the instant case as they were not effective until 8 May 1996 and Appellant filed his petition in April 1996. 8 based its imprope

r venue de terminat

ion on th e declara

tory judgem

ent and wr

it of mandamus actions be cause the se were th e only acti ons address ed 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 th e fact that Appellant stated a section 1983 claim.

It is the opinion of this court that venue in the Davidson County Chance r y Courtis imprope

r. A cl aim

for a viol a tion of civi l rights is a transitor y action. 4 Tennessee Code Annotated sec tion 20- 4-101 provide s where venue lies in civil actions of a transitory nature. 5 That sec tion provide s:

(a) In all civil actions of a transitory nature, unles s venue is otherwis e expressly provided fo r, the a ction may be

brou ght i n the county where the cause of action arose or in the co unty where th e defendant resides or

is found. (b) If, however, the plaintiff and defendant both reside in the same county in this st ate, the n such acti on shall be b rought eithe r in the county where th e cause of action ar

ose or in the

county of th eir residence. T ENN
. C ODE A NN . § 20-4-1 01(a),( b) (1994). There a

re no statu tes spe cificall y providing for venue in section 1983 ac tions. Thus, the proper ve nue in this c ase is either in the count

y where t he cause of action arose or in the county where Appellees reside or are found. See id.

Itis clear from the petition tha

t the cause of action ar

ose at the F acility in L ake County. In additi on, we know fro m the petit ion that Ap pe llees Calhoun, Basham, Roberts, Moore, a

nd Freema

n worked i n Lake County and Appellee Conley worked in Lauderd ale County at the time Appellant filed the

petitio n. There are not, however, any allegations regar ding the residenc es of Appe llees or a ny evidence

of where Appellees were found. It is reasona

ble to infer, however , that A ppellees di d9

not reside in Davidson

County and w ere not f

ound in Davidso n County as L auderdale and Lake Counties are

on the wes tern bounda

ry of the State an d Davidson C ounty is

near the cente r of the S tate. B ecause th e cause of action did n ot arise i n Davidson County and Appel lees did not reside in or

were not found in Da

vidson County, venue did no t lie in Da

vi dson County. Thus, the chancery court erred when it overruled Appellee s’ motion t o dismis s for impro per venue. Moreover , pursuant to Rule 13(b) of the Tennessee Rules of Appellate Procedure this court holds that venue was a

lso improperas to those r

espondents a

dded as a r

esult of the

amended petition. Ou r reasoning being the same as that stated above.

Itis the opinio n of this courtthat Appe llant fai led to state a claim f or writ o f mandamus and that the

Davidson C ounty Cha

nce ry Court lacked subject matter jurisdicti on over the de clarator y judgment a

ctions. A ppellant st ate d a claim f

or a violation of his civil

rights under

title 42 section 1983 of the United States C ode, but filed his claim in the wro ng cour t. Itis the opinio n of this cou rt that the motion to dismiss should have b een grant ed for the above stated re asons. Given our decision, it is our opinion that the claim for writ of mandamus should be dismissed withprejudice and the declaratory judgment actions and the sect ion 1983 action shouldbe dismis sed witho ut prejud ice. See T EN N
. R. C IV
. P. 41.02(3); Randle v. Lyle , 682 S.W.2d 219, 220 (Tenn. App. 1984).

II. OTHER MOTIONS

A. MOTION TO STAY DISCOVERY

Itis the opinio n of

thi s court tha

t the chanc ery court

did not err

in granting Appellee s’ motion to sta

y discovery

pending the o utcome of th e moti on to dismiss for failure to state a claim. The holdin g was appr opriate gi ven the nat

ure of the pending motio n and burden of continui ng discover

y.

B. MOTION FOR SUMMARY JUDGMENT

Itis the opinio n of thi s court tha t the chancery court correctly dismissed Appellant’s motion f

or summary ju dgment. N ot only was the motion incomprehensible, but it admitted there were di sputed, ge nuine issues of fact. A party10

is not entitled to summary judgment if there are ge nuine is sues of mat erial fact. Byrd

v. Hall , 847 S.W .2d208, 214 (Tenn. 1993). The Tennessee Supreme Court defined a materi al fact a s follows: A disputed fa

ct is mate rial if it must be dec ided inorder to r esolve the substantive

claim or defense at which the motion is directed. Therefore, when confronted with a disputed fact, the court mu st examine t he elements of the cla

im or defense at issue in t he motion to determine whether the resolu tion of that

fact wi ll effec t t he d isposition of any of those clai ms or defenses. Id. at 215. T

he recor d in this case c ontains disput es over fa

cts mater ial to the determina

tion of whethe

r A ppellees vi olated Ap pellant’s constitution al rights. Therefore, we find noerror with the chancery court’s decision to dismiss Appellant’s motion for summary ju dgment.

C. MOTION TO SUPPLEMENT
The Tennessee Rules of Civil Procedure provide: A party may

amend the

party's p leadings onc e as a ma tter of courseat any time b efore a res ponsiv e pleadin g is served

. . . . Otherw ise a party may am end the party's pleadings only by written consent of the adve

rse party or by leave

of court; and le ave shall be freely gi ven when j ustice so r equires. Appellant had already amended his complai nt once wh en he file d the motion t o supplement

his petition . Thus , it was nec essary to r eceive written con sent of Appellees and the respondents added as a result o f the fir stamendmen t or permi ssion from the c ourt.

The chancer

y court deni ed Appell ant’s req uest. It determin ed the is sue was moot because t he court ha

d dismissed t

he case f or failure to state a claim upon which relief c an be granted. We agree w ith the tri al court’ s ruling.

III. CONCLUSION

Therefore, it follows that the decision of the ch ancery court is affirmed as modified. The cas e is rema nded for th e entry of

a judgment in conform

ity with this decision and for a ny 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