# FILED
September 2, 1998 Cecil W. Crowson Appellate Court Cle rk FRED E. DEAN ) ) Plaintiff/Appell

ant, )

) Appeal No. v. ) 01-A-01-9711-CH-00672 ) DONAL CAMP

BELL, et al. ) Davidson Chancery

) No. 97-2564-III Defendants/Appel

lees. )

COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CHAN CERY COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

FRED E. DEAN, PRO SE Riverbend Maximum Security Institution 7475 Cockrill Bend Ind. Rd. Nashville, TN 37209-1010
JOHN KNOX WALKUP Attorney General and Reporter ARTHUR CROWNOVER II, BPR # 12306 Assistant Attorney General Civil Rights and Claims Division Cordell Hull Building, 2nd Floor 425 Fifth Avenue No

rth Nashville, TN 37243-0488

ATTORNEYS FOR THE DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE1 Appellant has filed a motion to consider post judgment facts pursuant to Tenn. R. App. P. 14. The court is unpersuaded that the post judgment denial of Plaintiffs motion toamend his original complaint after the close of the plea

dings amounts to a fa

ct which materia

lly affects the positions of the parties. Therefore that motion should be and is denied. 2 

## OPINION This case comes to us on a pp eal from a n order dismissing App ellant Dean’s complaint against A ppellees, filed a

pparently unde r the auspices of 42 U.S.C. § 1983 et seq., alle ging vi olation of civil rights under the color of st

ate authority. The trial court dismissed Mr. Dean’s complaint for failure to specify the capacity of the def

endants being s ued . For the reasons a nd under the authorities recited below, we affirm the trial co urt’s d ismissal of Mr. Dean’s claim with prejudice. 1
The gravamen of Mr. Dean’ s o riginal complaint is that he tested positivefor tuberculosis w hile in the custo dy of the Tennessee Depar tment of corrections. For compensation f or his “injury” he sue s D o nal Campbell, Commissionerof the Tennessee D epartment of Corr

ections, Jim Rose a

nd C harles Bass, Assistant C ommissioners; Rober

t Conley, Warden a

t West Tennessee High Security Fac ility, a nd David Mills, Warden at Turney Center and Industrial Priso

n. Appellant’s compla

int reads in pertine

nt part:
In September 1996, pl

ainti ff was tested at Turney Center Indu stria l Prison (TCIP) f or tuberculosis, an

d the results were positive. In March of

1995, upon

coming into the TDOC, plaintiff was tested for tuberculosis and the results were negative. In June of 1995, plainti

ff arr ived at Northeast Correctional Center, NECC. In Sept

ember of 1995, was aga

in tested at NECC, again the results were negative.... Itis the policy of TDOC to test all inmates c oming into TDO C and again to do testing o n the inmate’s birthd

a y month, plaintiff’s

being in Sept. Plaintiff states that sometime between September 1995 and3 September

19 96, plaintiff was

exposed to the tuberc

ulosis germ. Plain tiff alleges that TDO

C was negligent in it

s duty t o provideplaintiff with a sa fe and healthy

living environment. Plaintiff further alleges th

at TDOC is resp

onsible by state law for the well

being and medical ne

eds.
No specific acts or failures to act are allege d with regard to any

of the named defendants in this suit. In response to the com plaint all Defendants filed motions to dismiss for failur e to state aclaim. The ground for these motions was thatMr. Dean had fa

iled to indicate cle

arly the capacity in

which the defendan

ts were sued
. Wells v. Brown , 891 F.2d 591 (6th Cr. 1989). Appellan t a sk s whether the trial court abused its discretion in grantin g this motion

to dismiss on the merits. Capacity is raised by specifi c negative averment. Tenn . R. C iv. P. 9.01(1998). Defendants made these special averments by way of their moti

ons to dismiss. Indeed to

come within the purv

iew of a § 1983 action, the plaintiff must allege, among othe

r things, whether it is suing t he defendants in thei r individual capacity

for damages or as representatives of the governmental entity, keeping in mind the gove rnmental immunity co

ntemplated in our sta

tutes.
Mr. Dean alleged in his

complaint that h

e contracted Tuber

culosis in one of the Tennessee Dep artment of Corrections facilities in which he was housed between Sept

ember of 1995 and Se

ptember of 1996. Appellant states in the caption of his complaint that the named defendants are sued in their individua l and official capacity. The ad damnum of the complaint reads

as follows:

RELIEF SOUGHT $20,000,00 each defendant compensatory damages $50,000,00 each defendant punitive damages $10,000,00 each defendant for pain and suffering [sic]
Nowhere in the complaint does ap pellant indicate tha

t he is suing the4

defe ndants for damages in thei r individual capacit

y, as is required und

e r 4 2 U.S.C. § 1983. See Wells v. Brown , 891 F.2d 5 91 (6th Cr. 1989). Even if he were suing these individuals in their individual capacity, he has not alleged suff icient fa cts to bring this action within the purview of a court consideri ng a § 1983 claim.
The absolute immunity of s tate officers and empl

oyees from suit

in the type of situation alleged is c

ontained in the plain

language of Title 9 of our code. Stateofficers and employees are a bsolutely immune from liabilityf

o r acts or omissions w ithin the scope of the officer’s or employ ee’s office or employme nt, except for willful, malicious, or cri mina acts or omission

for acts or omissions done for personal ga in. Tenn. Code

Ann. § 9-8- 307(h)(1997). To cross the pleadi

ng threshold

in such a case, Ap

pellant must at least allegewith clarity and spec i ficity the actions of officials which c

onstitute the “unnecessary and wanton inflictio n of pain” contemplated by Estelle v. Farmer and its progeny. Estell

e v. Farme r , 429 U.S. 97, 1 04, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). See also Stamps v. McWherter , 88 8 F. Supp. 71 (WD Tenn. 1995). The allega tions don’t even rise t

o the level of a prope

r claim for negligence. Appellant may beli eve it totally logica

l to hold prison officia

ls responsible

for the free movement of germs and viruses. However, absent some proof of particular malfeasance or nonfeasance on the part of those individua ls which deliberately fac

ilitates the moveme

nt of those very germ

s in the appellant’s direction, an act ion under 42 U.S.C . § 1983 simply will not lie. We find dismissal appropr

iate under the circ

umstances. Appellees raise issue regar ding the subj ect ma tter jurisdiction of the Chancery Court. In view of our decision on the a bove grounds the question with regard to subject mat ter jurisdiction n ot raised at trial is m oot.
The action of the trial court is affirm ed in all respects and the ca se is remanded to the trial court f or such further proc

eedings as may be nec

essary. Costs on appeal are t

axed against appella

nt.

__________________

_ __________

_5

___ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ _______ HENRY F. TODD, PRESIDING JUDGE, M.S.

__________________________________ _______ BEN H. CANTRELL, JUDGE