### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs S eptem

ber 16, 200 2 BILLY JOE SMITH v. LISA NIDIFER RICE, ET AL 

### . Appeal from the Circuit Court for Johnson County No. 2174 Thomas J. Seeley, Jr., Judge FILED NOVEMBER 14, 2002 No. E2001-02436-COA-R3-CV

In this appeal from the Circuit Court for Johnson County the Appellant, Billy Joe Smith, asserts that the Circuit Cou

rt erre d in denying his m otion to alter or amend the Court’s prior judgment dismissing his complaint for alleged violations of his civil rights upon grounds that the complaint failedto allege any

causes of action other than violations of the United States C onsti tutio n. We affirm t he judg ment of the

Circuit Cou

rt. Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Cause Remanded H OUSTON M. G ODDARD , P.J., delive red the o pinion of t

he court , in which H ERSCHEL P. F RANKS and C HARLES D. S USANO , J R ., JJ., joined. Billy Joe Smith, Mountain City, Tenne ssee, pro se . Paul G

. Summers, Att orney Ge neral and Reporter; Michael E. Moore, Solicitor Gener al; and Heather C. Ross, Senior Counsel, Attorney General’s Office, Nashville, Tenne ssee, for the Appellees, Steve Finney a nd Lisa Nidifer K. Erick son Herr

in, Johnson Cit

y, Tennesse e, for th

e Appellees, Debb ie Barr on and Steve Smith Thomas L. Kilday , Greeneville, Tennessee, for the Appelle es, Gre gg Ma sters, Ron

Arnold a nd David Pa ul ey OPINION

The record reflects that on January 9, 1995, in the Criminal Court for Uni coi County , Mr

. Smith was convicted of two counts of aggravated r ape, one count of aiding and abetting ag gravated rape, one count

of aggravated r

obbery and one

count of aggravate d kidnaping. In conseque nce of t hese convictions, on February 14, 1995, Mr. Smith was sentenced to 135 ye ars in prison . Mr

.1 Although Mr. Smith r efers to th is def endant as merely “C. Rice ” in his c omplaint , subs equent pl eadings fil ed in the cas e refer

to th is def

endant as “Constan ce” or “Cordell” Rice. The Dist ric t Cour t not es i n it s memora ndum opi nion that thi s defendan t was n ot serv ed with process an d our revi ew of the recor d veri fi es the Dis tri ct Cour t’ s det ermi nati on in this r egard. Becaus e ther e is n o proof that Ms. Rice was e ver served with a co py of M r. Smith’s c omp laint, she is not a p arty to this ap pea l. -2- Smith’s convictions were subsequently aff irmed by the Court

of Criminal Appeals on February 11, 1997. Mr. Smith fu

rther a ppealed his convicti ons for aggravated ra pe, aiding and abetting aggravated ra

pe and aggrava

ted kidnaping to the Tennessee Supreme Court and on September

28, 1998, the Supreme C ourt aff

irmed thos e convic tions. On March 21, 2001, Mr Smith filed a complaint in the Johnson County Circuit Court titled

“ 42 U.S.C. § 198 3 COMPLAINT FOR V IOLATION OF CIVIL RIGHTS GUARA NTEED BY THE CONSTITUTIO N OF THE UN ITED STATE S OF AMER ICA. ” In his complaint Mr. Smith request s compens atory and puniti ve damag es for a lle ged v iolations of his rights under the Fourth, Fifth, Sixth , Eighth and Four teenth Am

endments to the federal Constitution with reg ard to the abov e crimina

l convicti ons. The t

hirteen defenda nts named

in the com

plaint ar e as follo ws: assi stant attor ney s gene

ral, L isa Nidif er and Ste

ve Finne y; Joh nson City police of ficers, Debbie Barron and Steve

Smith; Unic oi County

Sherif f’ s Depar tment deputies, Ron A

rnold and David Pa ul ey; Unicoi County Circuit Court Clerk/ Crimin al Court Clerk, Gregg Masters; Mr. Smith’s at to rn ey, William B. Lawson, and the following persons who served as jurors in the criminal case - Darlene Hill, Pat Gouge, Kim Gou ge, Ear l Bennett and C. Rice. These thirteen defendants a re designated as the Appellees in this case. Pursuant to 28 USC 1441, et seq. Mr Smith’s complaint was removed to the Federal District Courtby eleven of

the thirteen defendants with consent of a t wel fth. Although the

thirteen th defenda nt, C. Rice, di d not join in the remo val, it

does not appear that she was served with proc ess and her participation in the removal was, therefore , not relevant 1 . Upon the defe ndants’ m otions to dismiss and/or for summary judgment, on May 25, 2001, the District Court filed an order and memorandum

opinion dis missing a

ll feder al claims agains teach of th e twelve defendants. The District Court declined to exercise supplemental jurisdiction over any State law claims that might have been raised in the complaint and remanded the case to the Circuit Court. Upon remand the Circu it Court dismissed Mr. Smith’s complaint by order filed July 11, 2001, upon grounds that the only causes of action

asserted in the complaint were for violations of specific Amendments to the United States Constitution and upon the add it ional ground that Mr. Smith had failed to file an inmate aff idavi t as required by

T.C.A. 41-21-805. Mr. Smith filed a motion to alter or amend judgment on Augus t 2, 2001, w hic h was denied by or der of the Court entered August 28, 2001. Mr. Smith now appeals the order of August 28, 2001, deny ing his motion to alter or amend the Court’s prior order of July 11, 2001. Our review o f a case

such as th

is one is de novo upon the trial court record with a presumption that the tr

ial cour t's factual fin dings are correct unless the evidenc e preponderate s to-3-

the contrary . Tenn.R .App.P. 13(d) . Ther e is no presu mpti on of c orrect ness a s to t he tri al cou rt's conclusions of law. Campbell v. Florida Steel ., 919 S.W.2d 26 (Tenn. 1996). In his motion to alter or am end filed on Augu st 2, 2001, Mr. Smith no tes that th e Circuit Court based its dismissa

l of his co mplaint upo n the follo wing g rounds: 1.Failure to allege any

further causes of action other than the mentioned violations of the U.S. Constitution. 2.Failure to submit an affidavit pursuant to T.C.A. 41-21-805. The motion

further states: THE PL AINTIFF WILL ONLY ADDRESS THOSE ISSUES CITED B Y THE COURT FOR IT’S DISMISSAL, AS THEY AR E THE O NLY REASONS THAT COUNT A ND BARE [sic] ANY VALID ITY UPON THI S CASE. The import of the Circuit Court’s finding that Mr. Smith’s complaint does not assert any causes of action other

than violations of Amendments to the U.S. Constitution is that the complaint does notassert

any claims under

Tennessee law. Mr. Smith disagrees and conte nds that the District Courtindicate d that the

re were unresolv ed state

law clai ms when, according to Mr. Smith, the Court “remanded

the case back

to the trial court to settle the REMAINING State law claims.” (emphas is in origina l) Mr. Smith further

contends that his complaint “plainly states that the a ppellees violated laws governing the State of Tenne ssee, and not just constitutional violations.” We disagree with Mr. Smith’s assertion that the District Court remanded the case to the trial court to settle “remaining state law claims”. I n fact, the District Court’s memorandum opi n ion shows that it remanded the case to the Circuit Court after declini ng “to exerci se supplemental ju ris diction over any

state law claims tha

t might have been raised in this action.” (italics added) There is no indication that the District Court found that Mr. S mith’s complai nt raised state law claims. Our

review of Mr. Smith’s complaint shows that each cause of action a s set fort

h therei n alleges violation of a specific Amendment to the United States Constitution and the complaint makes no reference to any

laws of this state which were allegedly violated:

VIII. FI RST CAUSE OF ACTION The actions, inactions, and acquiescence of defendants’ Nidifer, Finney, B arron, Smith, Arnold, and Lawson violated the rig hts guaranteed and protected by the U.S. Constitutional Amendment IV.-4- IX. SECOND

CAUSE OF

ACTION The actions, inaction s, and ac quiesce nce of th e defendants a s herein mentioned violated the rights guarant eed and protected by the U.S. Constitutional Amendment V. X. THIRD C AUSE OF A CTION The actions, inactions, acquiescence of the defe ndants as herein m e ntioned violated the right s guara

nteed and protec ted by

the U.S. Co nstitutiona

l a mendmen t men dm ent VI.

XI. FOU RTH CAUSE OF ACTION The action s, inactions, and acquiescence of defe ndants as herein mentioned violated the rights guar anteed a nd protected by

the U.S. Co nst itutiona l Ame ndm ent VIII. XII. FIF TH CAUSE OF ACTION The actions, inactions, and acquiescence of the defendants as herein mentioned violated the rights guaranteed and pr otected by the U .S. Con stitutio nal Amendment XIV. Given such specificity r

egarding alleg ed violation of U.S. Con stitut ional Ame ndments without any ac companying reference to any

specific violations of s tate l aw and based upon our review of Mr. Smith’s complaint as a whole, we are compell ed to agree with the Trial Court’s conclusion that no state law claims were raised in this case. Although a pro se complaint, such as the one file d by

Mr. Smith is g

ranted a liberal c onstruct

ion by this Court, such a co mplaint mus t still comply with applicable procedural and substantive law. Irvin v. City of Clarksville, 767 SW2d 649 (Tenn. Ct. App. 1988). A pro se litigant is not entitled to shift the burde n of litig ating hi s case to the courts. Whita

ker v. W hirlpool Cor

p., et al, 32 S.W.3d 222 (Tenn. Ct. App. 2000). Alth ough we recognize that Tennessee c ourts also entertain jurisdiction of claims filed pursuant to 42 U.S.C. 1983, it is our determination that all such claims in this case were disposed of by t he order and memor

andum opin

io n of th e District Court entered on May 25, 2001, both of which are attached as an appe ndix to this opinion.-5-

It being our determination that Mr. Smith raised no causes of action in his complaint under state law, we need not f

urther d etermine whether the dismiss al of his c omplaint is sup ported on additional grounds such as failure to file an inmate af fidavit as required by

T.C.A. 41-21-805. For the foregoing reasons the judg ment of the Circuit Court is aff ir med and th

e cause remanded for such further proceeding s, if any, as may be necessary

and for collection of costs below. Costs of appeal are adjudged ag ainst Billy Joe Smith.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE