FILED

September 2, 1998

Cecil W. Crowson

Appellate Court Clerk

FRED E. DEAN )

)

Plaintiff/Appellant, )

) Appeal No.

v. ) 01-A-01-9711-CH-00672

)

DONAL CAMPBELL, et al. ) Davidson Chancery

) No. 97-2564-III

Defendants/Appellees. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY 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 North

Nashville, TN 37243-0488

ATTORNEYS FOR THE DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
1

 

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 to amend

his original complaint after the close of the pleadings amounts to a fact which materially affects

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

2

OPINION

This case comes to us on appeal from an order dismissing Appellant

Dean’s complaint against Appellees, filed apparently under the auspices of 42

U.S.C. § 1983 et seq., alleging violation of civil rights under the color of state

authority. The trial court dismissed Mr. Dean’s complaint for failure to specify

the capacity of the defendants being sued. For the reasons and under the

authorities recited below, we affirm the trial court’s dismissal of Mr. Dean’s

claim with prejudice. 1

The gravamen of Mr. Dean’s original complaint is that he tested

positive for tuberculosis while in the custody of the Tennessee Department of

corrections. For compensation for his “injury” he sues Donal Campbell,

Commissioner of the Tennessee Department of Corrections, Jim Rose and

Charles Bass, Assistant Commissioners; Robert Conley, Warden at West

Tennessee High Security Facility, and David Mills, Warden at Turney Center

and Industrial Prison.

Appellant’s complaint reads in pertinent part:

In September 1996, plaintiff was tested at Turney Center

Industrial Prison (TCIP) for tuberculosis, and 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, plaintiff arrived at Northeast Correctional

Center, NECC. In September of 1995, was again tested at

NECC, again the results were negative....

It is the policy of TDOC to test all inmates coming into

TDOC and again to do testing on the inmate’s birthday

month, plaintiff’s being in Sept.

Plaintiff states that sometime between September 1995 and
3

September 1996, plaintiff was exposed to the tuberculosis

germ.

Plaintiff alleges that TDOC was negligent in its duty to

provide plaintiff with a safe and healthy living environment.

Plaintiff further alleges that TDOC is responsible by state

law for the well being and medical needs.

No specific acts or failures to act are alleged with regard to any of the

named defendants in this suit. In response to the complaint all Defendants filed

motions to dismiss for failure to state a claim. The ground for these motions was

that Mr. Dean had failed to indicate clearly the capacity in which the defendants

were sued. Wells v. Brown, 891 F.2d 591 (6th Cr. 1989). Appellant asks

whether the trial court abused its discretion in granting this motion to dismiss on

the merits. 

Capacity is raised by specific negative averment. Tenn. R. Civ. P.

9.01(1998). Defendants made these special averments by way of their motions

to dismiss. Indeed to come within the purview of a § 1983 action, the plaintiff

must allege, among other things, whether it is suing the defendants in their

individual capacity for damages or as representatives of the governmental entity,

keeping in mind the governmental immunity contemplated in our statutes.

Mr. Dean alleged in his complaint that he contracted Tuberculosis in

one of the Tennessee Department of Corrections facilities in which he was

housed between September of 1995 and September of 1996.

Appellant states in the caption of his complaint that the named

defendants are sued in their individual 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 appellant indicate that he is suing the
4

defendants for damages in their individual capacity, as is required under 42

U.S.C. § 1983. See Wells v. Brown, 891 F.2d 591 (6th Cr. 1989). Even if he

were suing these individuals in their individual capacity, he has not alleged

sufficient facts to bring this action within the purview of a court considering a

§ 1983 claim.

The absolute immunity of state officers and employees from suit in the

type of situation alleged is contained in the plain language of Title 9 of our code.

State officers and employees are absolutely immune from

liability for acts or omissions within the scope of the

officer’s or employee’s office or employment, except for

willful, malicious, or crimina acts or omission for acts or

omissions done for personal gain. Tenn. Code Ann. § 9-8-

307(h)(1997).

 To cross the pleading threshold in such a case, Appellant must at least

allege with clarity and specificity the actions of officials which constitute the

“unnecessary and wanton infliction of pain” contemplated by Estelle v. Farmer

and its progeny. Estelle v. Farmer, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50

L.Ed.2d 251 (1976). See also Stamps v. McWherter, 888 F. Supp. 71 (WD

Tenn. 1995). The allegations don’t even rise to the level of a proper claim for

negligence. Appellant may believe it totally logical to hold prison officials

responsible for the free movement of germs and viruses. However, absent some

proof of particular malfeasance or nonfeasance on the part of those individuals

which deliberately facilitates the movement of those very germs in the

appellant’s direction, an action under 42 U.S.C. § 1983 simply will not lie. We

find dismissal appropriate under the circumstances.

Appellees raise issue regarding the subject matter jurisdiction of the

Chancery Court. In view of our decision on the above grounds the question with

regard to subject matter jurisdiction not raised at trial is moot. 

The action of the trial court is affirmed in all respects and the case is

remanded to the trial court for such further proceedings as may be necessary.

Costs on appeal are taxed against appellant.

______________________________
5

___

WILLIAM B. CAIN, JUDGE

CONCUR:

_________________________________________

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

_________________________________________

BEN H. CANTRELL, JUDGE