# FILED
January 9, 1998 Cecil W. Crowson Appellate Cou rt Clerk Winslow Watson, ) Petitioner/Appell

ant, ) Appeal Number v. ) 01-A-01-9707-CH-00360 Tennessee Depar

tment of Correcti

on, ) Tennessee Board o

f Paroles, Corr

ection ) Rule Number Corporation of Ame

rica, and Jody ) 96-1581-II Benjamin, ) Respondent/Appelle

e, et al. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE APPEAL FROM THE DAV IDSON COUNTY CHANCE RY COURT AT NASHVILLE, TENNESSEE THE HONORABLE CAROL L. McCOY, CHANCELLOR

WINSLOW WATSON, PRO SE Turney Center Pr

ison Only, Tennessee

37140 JOHN KNOX WALKUP Attorney General and Reporter JOHN R. MILES Counsel for the Sta

te Cordell Hull Bldg. , Second Floor 425 5th Avenue North Nashville, Tennessee 37243-0488 ATTORNEY FOR THE TENNESSEE DEPARTMENT OF CORRECTION AND THE TENNESSEE BOARD OF PAROLES

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE1 The chancery court found there had not been a summons issued as to Jody Benjamin.

Therefore, the court dismissed the action against Jody Benjamin for failure to prosecute. 2 

## O PINION
This is an appeal by

petitioner/appella

nt, Winslow Watso

n, from a decision

of the chancery court dism

issing his petition

for a declarator

y judgment pursuant to th e Dec laratory Judgment Act, Te nnessee Code Annota

ted section 29-14-101 t

o -113

. The facts out of w

hich this matter ar

ose are as follows

.
Pe titioner filed an action in the United States Dis

trict Court, Middle

Dis tric t of Tennessee, alle

ging aviolation of his due pro cess and Eighth Ame

ndment rights. Petitioner allege

d Jeff Morris,Jody Benjamin, Charles Self, a nd Richard Anderson violated his rights during a 16 November 1992 disciplinary proceeding. A jury heard the case and awarded Petitioner compensatory and punitive damages o n 4 April 1996.
Petitionerthen filed a petition for declaratory order pursuant to the Declaratory Judgment Act on 22 May 1996. He named the Ten nessee Departme

ntof Correction (“TDC”), Tennessee Board o f Paroles (“TB P”), the Correc tion Corporation

o f America (“CCA”), and J

ody Benjamin 1 as respondents. Petitioner a lleged th e punishment

rendered during the

disciplinary procee

ding had adversely af

fected his parole date. He

then requested the f

ollowing relief: 1. That the Parole Board be ordered to rele

ase Petitioner on

parole immediately. 2. That

Petitioner’s convic

tion be rendered void for

the violation of his [Eighth and Fourt

eenth] Amendments

[sic] rights. 3. That

any re cord o f the November 16, 1992 disciplinary conviction

be removed from

my prison record, a

nd the record of the I.A.S. pla

cement. 4. That

T.C.A. 41-24-110, 41-24-109 as it relates to contr actors for correctional ser

vices be declared unconstitutional.
CCA responded by filing a motion to dism iss for failure to

state a claim upon which relief can be granted. CCA argued Pet itione r did not allege “any actions or inactions on behalf

of [CCA] to whic

h relief can be gra

nted” and “[t]he Petition asked for declaratory reli

ef that is not within t

he discretion

or control of [CCA

].” TDC and TBP filed a motion to

dismiss pursuant to Te

nnessee Rules of Civ

il Procedure 12.02
on 20 September 1996. They alleged “petitioner has not met the jurisdictional3

requirement

of Tenn. Code Ann. § 4-5-224 and [TBP] is exempt from the p rovisions of the Uniform Administrative Procedures Act, and consequently, from th e declaratory judgment proceedings.” Petitioner filed a motion for summary j udgment and/or judgment on the pleadings on 27 September 1996. The court entered an order
on 18 Novemb er 1996. It granted CCA’s motion to dismiss and overruled Petitioner’s motion for summary judgment and/or judgme nt on the pleadings, but

did not address TDC a

nd TBP’s motion.
Pet itioner filed a motion to amend on 19 December 1996. He requested th e courtreturn six months of good time credit re v oked as a result of the disciplinary proceeding. Petitioner filed a second motion

for summary judgmen

t on 19 December 1996. The court granted Petitioner’s motion to amend, but

noted that the order did not affect the previo

us order granting CC

A’s motion to dismiss.
The court filed a memorandum and order on 30 Januar y 1997. The court granting TDC and TBP’s motion. Thereafter, Petitioner fi led a ti mely notice of appeal as to the 30 January order. There are three issues before this court. These are: 1) whether a party can bring an action pur suant to the Declar

ato ry Judgment Act against the State; 2) whe

ther a party can br

ing a declaratory j udgment action against TBP; and 3) whether a pa rty must comply with T ennessee Code Annot ated section 4-5-225(b) before filing an action for a declaratory order.
The most recent case t

o address the

issue of whether a

party can bring an a

ction pursuant to the Decl

aratory Judgment

Act against

the State is Spencer v. Cardw ell , 937 S.W.2d 422 (Ten

n. App. 1996). In Spencer , the Western Section of this court affirmeda trial court’s o rder dismissing a complaint for lack of subject matter jurisdiction. The plainitff in Spencer had brought an action pu rsuant t o the Declaratory Judgment Act against the Department of Mental Health and Mental Retardation

and its Comm issioner. The appellate cou rt began its analysis by discuss in g sovereign immunity. The court held: “no suit against the Stat

e may be sustained absent express author ization from the Legislature.” Spencer v. Cardwell , 937 S.W. 2d 422, 423 (Tenn. A pp. 1996) (citing Coffman v. City of Pulaski , 220 Tenn. 642, 422 S.W.2d 429 (1967)). The court then continued by explaining that Tennessee Code Annotated section 20-13-102(a) prohibits a court fr om entertaining a suit “against the st

ate, or against any officer

of the state acting b

y authority

of the4

state, with a view to reach the s tat e, its treasury, funds, or property.” TENN . C ODE A N N . § 20-13-102(a) (1994). Next, the court held that the doctrine o f sovereig n immunity and Tennessee Code Annotated section 20-13-102(a) a pply t o actions br ought pursuant to the Decl aratory Judgment A

ct. Fianlly, the court held that the limitation in Tennessee Code A

nn o tated section 20-13- 102(a) “bars not only suits withaview to reach stat

e funds, but also suits

‘with a view to re

ach thestate’ itself. Spencer , 937 S.W.2d at

424 (quoting Greenhill v. Carpenter , 718 S.W.2d 268, 272 (Tenn. App. 1986)); see also Hill v. Beeler , 199 Tenn. 325, 331 -32, 286 S.W.2d 86 8, 870-71 (Tenn. 1956)(recognizing the ge neral lack of

legislative authorit

y within the Decalaratory Judgment

Act to bring an action against the State). But see Campbell
v. Sundquist , 926 S.W.2d 250, 256-5 7 (Tenn. App. 199 6) (holding that a party may bring an action under the Declaratory Judgment Act to chal lenge the constitutionality of a state statute a

nd distinquishing Hill v. Beeleer ).
Itis the opinion of t his co urt that the court’s analysis in Spencer

applies to Petitioner’s case as well. T here is no evidence t

he General Assemb

ly affirmatively authorized suits against the Sta te when it enacted

the Declaratory

Judgment

Act. See Hill , 286 S.W.2d

at 871. Therefore, it follows that the chancery court lacked subject matter jurisdiction

. Having found that Petitioner can not proceed under the Declar atory Judgment Act, we now determine whether he can proceed under the Uniform Administrat iv e Procedures Act (“UAPA”), Tennessee Code Annotated sect ion 4-5-101 through

- 325. This leads us to the second and third issues. The UAPA explicitly provides that TBP is not subject to the declartory order and judgment sections of the UAPA. T ENN . C ODE A NN . § 4-5-106(c). Th us, Peititoner can not b ring a declarator

y judgment actionagainst TBP under either the UAPA or the D eclaratory Judgment Act. Therefore, the chancery co urt lacked subject m atter jurisdiction as to TBP.
This leaves us with the is sue of whether Petitione

r could rely on the UAPA

to support his claim against TDC. A petitioner must comp ly with Tennessee Code Annotated section 4-5-225(b) before filing an action for a declaratory judgment. That section provides: “A decla

rato ry j udgment shall not be re ndered concerning th

e validity or applicability of a st atute, ru le or order unless the complainant has petitioned the agenc y for a declaratory order and the agency has refused to issue a5

declaratory order.” T ENN . C ODE A NN . § 4-5-225(b) (Sup p. 1997). The plai

n language of this subsection requires a petitioner to request a declaratory order from the agency prior to f iling a petition for declaratory judgment. There is no evidence Petitioner ever filed a petition for

d eclaratory order. Therefore, the chancery court lacked subject matter jurisdiction as to TDC.
Therefore, it follows that the de cisionof the chancery court is a ffirmed and the
case is remanded to the c

hancery court for any furhter necess ary proceedings. Costs on appeal are taxed

against petitioner/a

ppellant, Winslow Watson.

____________________________ SAMUEL L. LEWIS, JUDGE
CONCUR:

____________________________ BEN H. CANTRELL, JUDGE

____________________________ WILLIAM C. KOCH, JR. JUDGE