IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 1, 2019

BRUCE A. SMILEY v. STATE OF TENNESSEE, ET AL.

Appeal from the Chancery Court for Davidson County

No. 17-0969-III Ellen H. Lyle, Chancellor

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No. M2018-01263-COA-R3-CV

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This appeal arises from a Petition for Declaratory Judgment filed by an incarcerated sex 

offender in the custody of the Tennessee Department of Correction. Petitioner challenged

what he claimed to be the illegal, arbitrary, and capricious application of Tenn. Code 

Ann. § 41-21-235, the Sex Offender Treatment Program (the “SOTP”), contending he is

eligible for a parole hearing but will be denied parole because the State of Tennessee has 

failed to enroll him in the program. This contention is based on Tenn. Code Ann. § 41-

21-235(b), which expressly states, as to sex offenders, “Successful participation and 

completion of the treatment program shall be a consideration for parole from a 

correctional institution.” Respondents moved for summary judgment on several grounds 

including the undisputed fact that the challenged provision is unenforceable due to a 

consent decree issued by the United States District Court for the Middle District of 

Tennessee in Dean v. McWherter, No. 1-90-0027 (M.D. Tenn. filed Aug. 18, 1994), and

the Tennessee Board of Parole does not consider participation in the SOTP, or lack 

thereof, as a factor in deciding whether to grant parole. Respondents also filed a motion 

to dismiss the individual respondents as well as the State for failure to state a claim based 

Tenn. Code Ann. § 4-5-225. The trial court granted the motion to dismiss the individual 

respondents and summarily dismissed all remaining claims. In pertinent part, the court 

found it was undisputed that by the terms of the consent decree and the affidavit of the 

Executive Director of the Board of Parole that the Board cannot and does not consider an 

inmate’s participation in the SOTP in reaching its parole decision. This appeal followed. 

We affirm in all respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS 

R. FRIERSON, II, and KENNY W. ARMSTRONG,JJ., joined.

Bruce A. Smiley, Pikeville, Tennessee, Pro Se.

02/20/2019
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Herbert H. Slatery, III, Attorney General and Reporter, Andrée Sophia Blumstein, 

Solicitor General, and Eric A. Fuller, Assistant Attorney General, Nashville, Tennessee, 

for the appellees, the Tennessee Department of Correction; Commissioner, Tennessee 

Department of Correction; Brandon Maloney; State Attorney General; State of 

Tennessee; Douglas Stephens; and Alvin Washington.

OPINION

Bruce Smiley (“Petitioner”) is an incarcerated sex offender in the custody of the 

Tennessee Department of Correction (“TDOC”). He is serving two (2) consecutive terms 

of incarceration: a fifteen (15) year sentence, which has now expired, and an eight (8) 

year sentence, which commenced in July 2016. 

On September 7, 2017, Petitioner filed a Petition for Declaratory Judgment,1

contending, inter alia, that he was required to complete the SOTP prior to release on 

parole and that he has not been allowed to enter the program. The petition further alleged

that Petitioner has been told that he cannot enter the program until four years prior to the 

expiration of his sentence. Petitioner’s sentence expires in 2024. The petition stated, and 

it is undisputed, that Petitioner has completed 100% of his sentence for the 15-year term 

and more than 30% of the 8-year term. As a consequence, he is eligible for parole.2

The essence of the petition is that because the TDOC has prevented Petitioner 

from entering the SOTP, he is being denied the opportunity for parole because Tenn. 

Code Ann. § 41-21-235(b) precludes parole without completing the SOTP. As it pertains 

to sex offenders, Tenn. Code Ann. § 41-21-235(b) states that “successful participation 

and completion of the treatment program shall be a consideration for parole from a 

correctional institution.” Therefore, Petitioner is seeking a declaratory judgment that the 

statutory bar violated his constitutional rights as well as affirmative injunctive relief 

requiring that he be placed in the SOTP. 

In a combined Motion to Dismiss and/or Motion for Summary Judgment, 

Respondents moved to dismiss all of the individual respondents and the State itself based 

on Tenn. Code Ann. § 4-5-225. They also moved to dismiss on the grounds the petition 

was premature because Petitioner had not yet had a parole hearing, had not been denied 

parole, and had not exhausted the administrative appeal process. 

 

1

The respondents named in the petition include the Tennessee Department of Correction; the 

State of Tennessee; Attorney General Herbert Slatery III; Brandon Maloney, the Director of Classification 

for TDOC; Tony Parker, the Commissioner of Correction; Douglas Stephens, the Detainer Administrator 

for the TDOC; and Alvin Washington, one of the program facilitators for the SOTP.

2

By statute, Petitioner was required to complete 100% of the sentence for the 15-year term and 

30% of the 8-year sentence before becoming eligible for parole.
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As for the motion for summary judgment, Respondents insisted that it was 

undisputed that the relevant provision of Tenn. Code Ann. § 41-21-235(b) is not 

enforceable. To prove this fact, Respondents cited a consent decree issued by the United 

States District Court for the Middle District of Tennessee in Dean v. McWherter, No. 1-

90-0027 (M.D. Tenn. filed Aug. 18, 1994), that renders the relevant provision of Tenn. 

Code Ann. § 41-21-235(b) unenforceable. Additionally, Respondents provided the 

affidavit of Jim Purviance, Board of Parole Executive Director, who testified that “at 

Parole Grant or Parole Review Hearings for sex offenders, Hearing Officials may not 

recommend denying parole in order to complete sex offender treatment or for failure to 

complete sex offender treatment. Board members do not deny parole to offenders in order 

to complete sex offender treatment or for failure to complete sex offender treatment.”

Based upon these facts, Respondents insisted that the Tennessee Board of Parole 

does not and cannot consider Petitioner’s participation in the SOTP, or lack thereof, as a 

factor in deciding whether to grant parole. Therefore, the factual basis for Petitioner’s 

claim for a declaratory judgment and injunctive relief is without foundation and, as a 

consequence, the request for relief is moot.

Petitioner timely filed a response in opposition to Respondents’ motions. His 

response was supported by affidavits from inmates who have participated in the SOTP;

however, Petitioner offered no evidence to dispute the material fact that Petitioner’s 

status in the SOTP could not be considered in making the parole decision. More 

significantly, in their statement of undisputed material facts, Respondents asserted as

fact: “Hearing officers and board members of the Board of Parole cannot and do not 

recommend denial of parole or deny parole for failure to complete a sex offender 

treatment program.” Petitioner’s response to this proposed undisputed fact reads: 

“Petitioner agrees that this fact is undisputed.” Therefore, Respondents contended there 

was no factual basis and no ground for the relief Petitioner sought. 

After considering the foregoing and all other pertinent information filed by the 

parties, the trial court dismissed all claims against the individual respondents and 

summarily dismissed all remaining claims. This appeal followed.

Petitioner raises numerous issues for us to consider; however, we have determined 

there are only three issues that require discussion. They are: 

(1) Whether the trial court erred in dismissing the petition for declaratory 

judgment against the individual respondents.

(2) Whether the trial court, in dismissing the petition for declaratory judgment on 

summary judgment, abused its discretion without first allowing petitioner the 

opportunity to conduct meaningful discovery.
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(3) Whether the trial court erred in summarily dismissing the petition.

ANALYSIS

I.

Petitioner contends the trial court erred by dismissing the petition for declaratory 

judgment against Attorney General Herbert Slatery III; Brandon Maloney, the Director of 

Classification for TDOC; Tony Parker, the Commissioner of Correction; Douglas 

Stephens, the Detainer Administrator for the TDOC; and Alvin Washington, one of the 

program facilitators for the SOTP (“the Individual Respondents”).

Respondents moved to dismiss the Individual Respondents and the State itself in a 

motion filed on March 9, 2018, stating “[D]eclaratory judgment actions cannot be 

brought against individuals; the only proper Respondent is the relevant agency of the 

State. Therefore, all Respondents other than the TDOC itself must be dismissed.” The 

motion to dismiss was based on the following argument: 

The Declaratory Judgment Act at Tenn. Code Ann. § 20-13-102(a) 

specifically bars suits against the state, or any state officer, in an attempt to 

reach the state treasury or its funds. Tenn. Code Ann. § 4-5-225 permits 

challenges of the action of a particular agency, but not those of any 

individual or of the state itself. It is well settled that Tennessee Court[s]

may not entertain declaratory judgment actions against state officers. See 

e.g. Utley v. Rose, 55 S. W.3d 559, 562 (Tenn. Ct. App. 2001). Therefore, 

the only available respondent here is the TDOC — assuming arguendo that 

the TDOC had any power or authority over parole decisions.

In granting the motion to dismiss the Individual Respondents, the trial court 

reasoned:

Tennessee Code Annotated section 4-5-225 permits challenges of the action 

of a particular agency, but not those of any individual or of the State itself. 

A Tennessee Court may not entertain declaratory judgment actions against 

state officers. See e.g. Utley v. Rose, 55 S.W.3d 559, 562 (Tenn. Ct. App. 

2001). Based upon this law and that the claims in this lawsuit are filed 

under Tennessee Code Annotated section 4-5-225, this lawsuit cannot be 

brought against the individual Respondents: Alvin Washington, Brandon 

Maloney, Attorney General Herbert Slatery III, Douglas Stephens, 

Commissioner Tony Parker. These individual Respondents are therefore 

dismissed from the lawsuit for failure to state a claim as a matter of law.
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Having determined that the trial court correctly identified and properly applied the 

relevant legal principles, we affirm the dismissal of the Individual Respondents.

II.

Petitioner contends the trial court abused its discretion by dismissing the Petition 

for Declaratory Judgment on summary judgment without first allowing Petitioner the 

opportunity to conduct meaningful discovery. 

The Petition for Declaratory Judgment was filed on September 7, 2017, and 

Petitioner was granted leave of court to proceed in forma pauperis by order entered on 

October 23, 2017. Although Respondents filed motions for extension of time to file a 

responsive pleading, the issues were joined no later than March 9, 2018, when 

Respondents filed their joint Motion to Dismiss Petition for Declaratory judgment and/or 

Motion for Summary Judgment. The motion was supported by the affidavit of Jim 

Purviance, Executive Director of the Tennessee Board of Parole, a copy of the Court of 

Appeals decision in Dalton v. Tennessee Bd. of Paroles, No. 01-A-01-9601-CH-00029, 

1996 WL 230209, at *1 (Tenn. Ct. App. May 8, 1996), a memorandum of law in support 

of the motions, and a statement of undisputed material facts. Petitioner then filed a 

motion for extension of time to file a response, which was timely granted on April 12, 

2018. Thereafter, Petitioner filed his Response in Opposition to Respondents’ Motion to 

Dismiss and for Summary Judgment, which was supported by multiple affidavits, a 

memorandum of law, and a separate statement of disputed material facts. Significantly, 

however, Petitioner never asked the trial court for additional time to conduct discovery

prior to hearing the motions. 

Our courts have consistently taken the view that “issues not raised in the trial court 

cannot be raised for the first time on appeal.” Correll v. E.I. DuPont de Nemours & Co., 

207 S.W.3d 751, 757 (Tenn. 2006) (citations omitted). Stated another way, the failure to 

raise an issue in the trial court will ordinarily operate as a waiver of that issue on appeal. 

Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn. 2010). Because Petitioner 

never asked the trial court for additional time to conduct discovery in order to respond to 

the motion to dismiss and motion for summary judgment, Petitioner has waived this 

issue.

III.

Respondents challenged the petition on multiple fronts but the primary ground 

they relied upon for summary judgment, as summarized in their appellate brief, is “there 

was never any foundational basis for Appellant’s petition or subsequent appeal, and the 

relief he sought cannot be granted – because the wrong he avers is a factual and legal

impossibility.” This argument is based on the undisputed material fact that the Board of 

Parole could not and does not consider Petitioner’s completion of the SOTP as a basis 
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upon which to deny him parole. The trial court agreed, as it explained in its ruling, “all 

claims in the lawsuit against any and all parties are dismissed on summary judgment 

because the premise of the Petition—that denial of parole for Petitioner is predetermined 

if he has not completed SOTP—is incorrect as a matter of law and fact.” Petitioner 

contends the trial court erred in summarily dismissing his claim.

This court reviews a trial court’s decision on a motion for summary judgment de 

novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, 

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 

(Tenn. 1997)). Accordingly, this court must make a fresh determination of whether the 

requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955 

S.W.2d 49, 50-51 (Tenn. 1997). In so doing, we consider the evidence in the light most 

favorable to the non-moving party and draw all reasonable inferences in that party’s 

favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

Summary judgment should be granted when “the pleadings, depositions, answers 

to interrogatories, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for 

summary judgment does not bear the burden of proof at trial, it may satisfy its burden of 

production “either (1) by affirmatively negating an essential element of the nonmoving 

party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the 

summary judgment stage is insufficient to establish the nonmoving party’s claim or 

defense.” Rye, 477 S.W.3d at 264 (emphasis in original).

When a motion for summary judgment is made and supported as provided in 

Tenn. R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its 

pleadings. Id. Instead, the nonmoving party must respond with specific facts showing that 

there is a genuine issue for trial. Id. A fact is material “if it must be decided in order to 

resolve the substantive claim or defense at which the motion is directed.” Byrd v. Hall, 

847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could 

legitimately resolve that fact in favor of one side or the other.” Id.

If the moving party makes a properly-supported motion, the burden shifts to the 

nonmoving party to “set forth specific facts at the summary judgment stage showing that 

there is a genuine issue for trial.” Rye, 477 S.W.3d at 265 (internal quotation marks 

omitted; emphasis in original). A disputed fact is “material” if it “must be decided in 

order to resolve the claim or defense at which the motion is directed.” Byrd v. Hall, 847 

S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could 

legitimately resolve that fact in favor of one side or the other.” Id.

As the trial court correctly noted in its memorandum opinion and order, in Dean v. 

McWherter, No. 1-90-0027 (M.D. Tenn. filed Aug. 18, 1994), the TDOC and Board of 
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Parole entered into a consent decree, described in a prior case, Dalton v. Tennessee Bd. of 

Paroles, No. 01-A-01-9601-CH-00029, 1996 WL 230209, at *3 (Tenn. Ct. App. May 8, 

1996), that reads as follows:

Thereafter, on June 3, 1994, the parties stipulated that the sexual abuse 

treatment program required in Tenn. Code Ann. § 41-21-235(a) had “not 

been fully developed and instituted by the Tennessee Department of 

Correction.” Their stipulation also provided:

2. The Tennessee Board of Paroles will not apply the 

provisions of Tenn. Code Ann. § 41-21-235(b) until such time 

that the sex abuse treatment program is fully instituted.

3. The provisions of Tenn. Code Ann. § 41-21-235(b) will be 

applied only to those sex offenders who are committed to the

custody of the Department of Correction after the sex abuse 

treatment program is instituted.

4. Each sex offender who comes before the Board of Paroles 

will be judged on his or her own merits. The Board will apply 

the factors set forth in the Rules of the Board of Paroles, 

Chapter 1100-1-1-.06, to each sex offender in determining 

whether to grant or deny parole.

This fact is further supported by the affidavit of the Executive Director of the Board of 

Parole, which reads in pertinent part, “at Parole Grant or Parole Review Hearings for sex 

offenders, Hearing Officials may not recommend denying parole in order to complete sex 

offender treatment or for failure to complete sex offender treatment. Board members do 

not deny parole to offenders in order to complete sex offender treatment or for failure to 

complete sex offender treatment.”

Petitioner identified no facts or evidence to dispute the foregoing facts. Moreover, 

and significantly, Petitioner responded to the motion for summary judgment agreeing that 

this fact is undisputed. Therefore, it is undisputed that Petitioner’s participation or lack 

thereof in a SOTP could have no relevance or bearing on the parole board’s decision to 

grant or deny parole. As a consequence, Respondents were entitled to summary judgment 

as a matter of law.

For the foregoing reasons, we affirm the judgment of the trial court.
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IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs 

of appeal assessed against Petitioner, Bruce A. Smiley.

________________________________

 FRANK G. CLEMENT JR., P.J., M.S.