1 Prisoner H owse is now housed at the Turney C enter facility. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE REV. CURLEY HOWSE v. MICKEY JOHNSON, ET AL Direct Appeal from the Chancery Court for Davidson County No. 89-3213-III; The Honorable Ellen Hobbs Lyle, Chancellor

No. M1998-00513-COA-R3-CV - Decided June 13, 2000

This appeal arises f

rom an action brou

ght by Plaintiff-Howse (“Pr isoner Howse”) a

gainst Defendan

tJohnson and the Tennesse e Department of C

orrection (her

einafter collec

tively referre

d to a s “Defendants”) for various viola tions of his c

ivil rights. Defendants’ motions for dismissal and summary judgement weregranted by the trial court. Hows e appeals both the

dismissal of his cas

e and the subsequent grant of summary judgment in favor of Defendants.
Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

H IGHERS , J., delivered the opinion of the court, in which F ARMER , J., and L ILLARD , J., joined.
Rev. Curley Howse, Only, TN, pro se
Paul G. Summers, Attorney General & Reporter, Michael E. Moore, So licitor General, and Rae Oliver, Assistant Attorney General, Nashville, for Appellees, Mickey Johnson, et al

OPINION

In November 1989 , Prisoner Howse f iled a petition aga

inst Defendants

in the Davidson Cou nty Chancery Court, alleging that both he and Charles Robinson (“Prisoner Robinson”) had b ee n assaultedand subjected to sexual misconduct by prison employees and ot he r inmates and that the beh aviorwas bot h condoned and encouraged by prison officials. At the time the lawsuit was initiated, Prisoner and his co -plaintif f we re inmates at the D eBerry Correct

ional Facility in Nashvil le, Tennessee. 1 Following motions by the individual Defendants, the court granted a n extension of time to answer until January 1990. Defendants filed a motion to dismiss or in the alternative a motion for summar y judgment on Janua

ry 24, 1990. An atta

chment t o this m otion includeda letter written by Prisoner Robinson claiming that he had been coerced into filing suit by Prisoner Howse. Prisoner Robinson was transferred to a different prison shortly thereafter.

Prisoner Howse filed

more than thirty various motions and miscellaneous filings between the initiation of the lawsuit and November of 1990. Am ong these filings were several motions2 During the interve ning pe riod, Prison er How se filed mo re than tw enty add itional mo tions.

3 Defenda nt’s answer f

iled on Sept

ember 24, 1992, m ade referen ce to a motion for partial summary judgment that was filed

at the same time. Although this motion was addressed in the Second Master’s report, the motion it

self does not appear in th e record . It is possible tha t Defenda nts were referri ng to a previous mot

ion for summary j udgment fil ed on January

24, 1990.
2 asking for relief from alleged retaliatory actions by Defendants, a mot ion for ap pointment of counse l, and a motion for a jury trial and requesting a hearing.

On November 7, 1990, Defendants filed a motion regarding the numerous filings of Prisoner Howse. Defendants req

uested that Howse’s m

otions be denied for failure to state a claim or dismissed for lack of clarity. Later that same month, the trial court entered an order referr ing the motions in the case to a Clerk and Master. The report of the Master was entered on May 1, 1992, and approved by the trial court pending objection. 2
According to the recommendations made in the Master ’s report,the majority of the motions filed by Prisoner Howse we re dismissed or de

nied. However, D

efendants were

required to

respond to the following: the alleged assault of Howse and the subsequently preventing Howse from filing incident reports of the assault; Howse’s claims that hereceived excessive administrative or punitive segregation; Howse’s claim that g uards allowed him t o be assaulted by a

nother inmate in the

ir presencewithout protecting him; and that a guard used the prison “shakedown” pol icy to m ake homosexual contact with Howse. Thereafter P risoner Howse filed three motions fo r default judgment against Defenda

nts.

On September 24, 1992, Defendants filed an answer addressing Prisoner Howse’s allegations. 3 Defendants denied both Howse’s claim that he hadbeen assaulted b

y guards and his claim that the guards did not protect him from assault s by other inmates. Defendants also denied Howse’s allegations of homosexual behavior by t he g uards. On October 20, 1992, the trial court denied Prisoner H

owse’s motions for

default judgment.

The Second Master’s report was filed on February 25, 1995. The report recommended that Defendants’ motion for partial summary judgment be granted as to all charges alleged by Prisoner Howse, except the charg es of assault and homosexual assault. Although Prisoner Howse filed objections to the report, the trial court found that the objections were without merit and adopted the report’s recommendations . Defendants move d for summary judgm

ent on the remaini

ng claims. Prisoner Howse moved for summary judgment thereafter. The trial court granted summary judgment in favor of Defendants on June 22, 1998. Prisoner Howse appeals.
On appeal, Prisoner Howse asserts that the trial court erred in its treatment of him as a pro se plaintiff. Howse asserts that the trial court erred in f ailing to grant his motion fo r default judgment. He also

asserts that the trial court erred in dismissing his retaliation claim. In addition, Prisoner Howse claims

that the trial court erred in granting Defendants’ motion for summary4 Prisoner Howse a lso asserts that the t rial judge violated t

he law and “judic

ial ethi cs Rule 10 Code of Judicial Condu ct” by granting D efendant’s motion to d ismiss. In addition, Howse claims that

the dismiss al grossly

prejudiced his case. This is sue is wit hout merit and wi

ll not be address

ed. See McCay v. Mitchell , 463 S.W.2d 710 (Tenn. Ct. App. 1970) ( a general assignment of error is too vague and will not be considered by the Court of Appeals).

5 Due to the u nusually long p endency o f this matter in the co urt below, we find it appro priate to note that no rightto a speedy trial is t riggered in a civil trial. Irvin v. C ity of Clarksv ille , 767 S.W.2d 649, at 654 (Tenn. Ct. App. 1988).

6 After our

review of

the numerous filings made by Prisoner Howse, we are unable to find a single citation to any legal basis for his claims. Howse repeatedly stated that his civil rights are being violated, but he fails to support these allegat ions wit h any aut

hority . Howse does mak e mention

of numerous violations of “God ’s law” in an attach ment to his initial complaint as follows: “Important message f

rom God: Tn. Corr.Dept. and DeBerry offic ials l et me remi

nd you tha

t God, has on tapes

and fi lms of all the abusivenes s you officials are c onducting and will bring yo u into questio n shortly. Remember Comm. Reyn olds

a nd Littl e, etc. , the Opth

amological

Universal

Cosmic Consci

ous Eyes of

Our Supreme Crea

tor, God , watches th e geological

earth and geograp hical universe and M ilky-Way galaxies. T.D.O.C. and D.C.I. author ities re ad II Chronicles 16:9, also God , said tell commiss ioner and ward

ens et c. are symbol ic to p haraoh a lso al l pri soner w arden ph

araoh’ s army is employee s.” While the court cert

ainly res pects Prisoner

Howse’s re liance on “G od’s law,” it is nei ther binding nor persuasive authority in the Tennessee Co urt of Appeals.
3 judgment. 4
Analysis

Pro Se Litigant

As a preliminary co n cern, we find it necessary to address Prisoner Howse’s request for appointedcoun se l and his position as a pro se litigant. We first turn to his request for appointed counsel. The trial court wa s not obligated to gr

ant Prisoner Howse ’s request for c ounsel because there is no absolute right to counsel in a civil trial. Memphis Bd. of Realtors v. Cohen , 786 S.W.2d 951, at 953 (Tenn. Ct. App. 1989) citing Barish v. Metropolitan Government , 627 S.W. 2d 953 (Tenn. Ct. App. 1981). 5

Prisoner Howse represented himself at both the trial court stage and on app eal. While litigants who proceed p ro se are entitled to fair a nd equal treatme

nt, "they must follow

the same proceduraland substantive la w as the represe

nted party." Irvin v. City

of Clarksville , 767 S.W.2d 649, 652 (Tenn. Ct. App.1988). Indeed, a pro se litigant requires even greater attention than one represented

by counsel. The trial judge must accommodate the pro se litigant's lack of legal knowledge without giving the pro se litig ant an u nfair advantage because the litig

ant represents him self. Id . From our reading of the record, it appears that the trial court made every availabl e concession required to acc ommodate Prisoner

Howse’s pro se status despite How se’s failure to clearly and concisely

state actionable

claims. 6 In addition, we find it appropriate to mention Prisoner7 Prisoner Howse’s filings in this ca se are all ha nd-writt en, with no ci

tations t o the record or to any legal authority. See R ule 13 of T ENN . R. A PP . P.

8 Rule 55.01 of the T ENN . R. C IV . P. provides i n relevant part: “When a par ty against whom a j udgment for affirmative rel

ief is sought has

failed to ple

ad or otherwise defend as pr ovided by thes e rules a nd that fact is ma de to appear b y affidav it or otherw ise, judgm ent by d efault ma y be ente red...”
4 Howse’s failure to

provide any citations to the record or legal

authority on appe

al. 7 While this court
can suspend or relax the rules of appellate procedure in order to afford a pro se litigant a hearing on the merits, we are no

t under a duty to minu

tely search a vol

uminous record to v

erify unsu

ppor ted allegations in a brief. Alexand er v. Tennessee Farmers Mut. Ins. Co. , 905 S.W.2d 177 (Te nn. Ct. App. 1995). With this in mind, we now turn to the remaining issues raised on appeal. Default Judgment

Prisoner Howse asserts that the trial court erred in failing to grant his numerous motions for default judgment. Pursuant to Rule 55.01 of t he Tenne ssee Rules of Civil Pr ocedure, defa

ult judgmentis appropriate wh en a party fails to

plead or otherwi

s e respond to a claim of relief by
a nother party. 8 In addition, Rule 55.01 of the Tennessee Rules of Civil Procedure p rovides: “N o judgmentby default

shall be entered against the State of Tennessee or any officer or agency thereof unless the cla

imant est ablishes the claim or right to relief by evidence satisfactory to the court.” Prisoner Howse failed to met the burden f or a grant of def

ault judgment in this c

ase. Defendan

ts filed an answer, a motion for summary judgment and a motion to dismiss, as well as several other motions. The filing of either a motion for summar

y judgment or an an

swer is sufficient to preclude default judgment. Creed v. Valentine , 967 S.W.2d 325 (Tenn.Ct. App. 1997). Therefore, the trial court did not err i

n refusing to gran

t Prisoner Howse’ s motion for defau lt judgment.

Retaliation Claim

Pri soner Howse asserts that the trial court erred in dismissing his retaliation claim. I n particu lar , Howse claims that h is transfer from

one facility to an

other was a resu

lt of his suit. Additionally, Howse claims that prison personnel censored his mail and stole his

postage stamps. Although Howse fails to provide the legal basis for this claim, this court assumes that he was attempting to establish a retaliation claim pursuant to 42 U.S.C. §1983.

In establishing a retaliation claim under § 1983, a prisoner

plaintiff’s burden is different from that of a non-prisone

r plainti ff. A prison er plaintiff must show: (1) that he engaged in conduct p rotected b y the First Amendmen t; (2) a chronolog

y of events from w

hich retaliation m

ay reasonably be inferred; (3) th

at a sufficiently adverse prison action was taken against him and that such an action would deter a person of “reasonable firmness” from cont inu ing the protected conduct; and (4) a causal connection between the conduct

and the adverse action. See Thaddeus-X v. Blatter , 175 F.3d 378, 394 (6 th Cir. 1999); Anderson v. Sundqu ist , 1 F.Supp. 2d 828, 832-833 (W.D. Tenn. 1998). Although Prisoner

Howse’s initiation of a civil rights action qualifies as conduct protected by the First Amendment, he fails to meet the remaining factors stated above. From

our review of5

the record, it seems that the activities Howse initially complained of we re occu rring prior to commencement of

this suit. In addition, Prisoner Howse’s transfers to different facilities and the allegedtheft of his stamps do not constitute “an egregious abuse of governmental power.” Issaq v. Compton , 900 F.Supp. 935, 940 (W.D. Tenn. 1995). Finally, Howse failed to pro vide sufficient evidence of a causalconnection between the initiation of his suit and subsequent acts by the prison officials. Accordingly, we find that the trial court di d not err in d ismissing Prisoner Howse’s retaliation clai

m. Summary Judgment As a final issue, Priso

ner Howse allege

s that the trial court erred in granting summary judgmentto Defendants. At the time Defendants filed their final motion for summary judgment, the only und isposed of claims were those involving assault and homosexual assault. In granting Defendants’ motion, the court below held that Prisoner Howse had failed to place specified wrongs into issue or to establish a genuine issue of material fact. Based on the following, we agree with the holding of the tria

l court.

The standards governing our review of a summary judgment motion are well settled. Our inquiry involves pur

ely a question of law; therefore, we review the record without a presumption of correctness to determine whether the absence of gen uine and material factual issues entitle the movant to judgment as a matter of law. Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn.1997); Byrd
v. Hall , 847 S.W.2d 208, 210 ( Tenn.1993); T

ENN . R. C IV . P. 56.03. Our prima ry inquiry is

whether there are any genuine

issues of materia

l fact. It is only after a finding that no material fact

s are in dispute that the movant must e

ither affirmativ

ely negate

an essential element of the non-movant's claim or conclusively establish an affirmative defense. Robinson , 952 S.W.2d at 426; Byrd , 847 S.W.2 d at 215, n. 5. Id . If the movant suc cessfully negate

s a claimed basis f

or the suit, th e non-movant

may no longer simply

rely upon the plea

dings, but must then establi sh the existence of the essential elements of the claim or the non-existence of the defense. Finister v. Humboldt General Hosp., Inc. , 970 S.W.2d 435, 437-438 (Tenn. 1998).

Under the standard stated above, it is apparent that Defend ants me t the requiremen ts to obtain summary judgment against Pr isoner Howse. How

se was unable

to raise a genuine issue of material fact based on his failur

e to state specific dates or places of the alleged assa

ults. Once Defen

dants’ disputed Howse’s claims

by sworn affidav

it, Howse failed to

establish the essential elements of the claim. Therefore, Howse failed to meet his burden t

o prevent entry o

f summary judgment i

n favor of Defendants. Accordingly, the trial court did not err.

Conclusion

Basedupon the foregoing, the judgment of the trial court is hereby affirmed. Costs of the appeal are assessed to appellant, Howse, for which execution may issue if necessary.