1 Rule10 (Court of Appeals). Memoran dum Opin ion . -- (b) The Court, with the

concurrence

of all judges part

icipating in

the case, may af

firm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum op inion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

# FILED May 21, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

______________________________________________ CHARLES E. HAYNES, From the Hickman Cou nty Circuit Court, No. 97-5180C Plaintiff-Appella

nt, The Honorable James L. Weatherford, Judge Vs. C.A. No. 01A01-9810-CV-00518 AFFIRMED AND REMANDED JUDGE DONALD P. HAR RIS, ET AL, Defendants-Ap

pellees. D. Randall Mantooth ; Hal W. Wilkins; John Knox Walkup, Attorney General Leitner, Williams, Dooley & Napolitan, and Reporter; Michael E. Moore, PLLC of Nashville Solicitor Genera l; Mary M. Bers, For Appellee, Jim Rice Assistant Attorney General For Appellees, Ha rris, Baugh, Ronald Davis, Eric Davis, Adams, Henderson, and Drolsum Charles E. Hayne

s, Pro Se

___________________________________________ ________________________________ _ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J. Plaintiff/Appella

nt, Charles E. Haynes, appeals the orders of the t rial court dismissing his complaint for fai

lure to state a cla

im against Defend

ants/Appellees, J

udge Donald

P. Harris, et al. In reviewing an appeal from an order dismissing a suit for failure to state a claim upon which relief can be gr

anted, we obvious

ly are limited to

the allegations in the complaint, and we must construe the comp

laint liberally in

favor of the plaintiff, taking all of the allegations of fact therein as true. Randolph v. Dominion Bank of Middle Tennessee , 826 S.W.2d 477, 478 (Tenn. App. 1991) (citing Huckeby v. Spangler , 521 S.W.2d 568, 571 (Tenn. 1974)). Dismissal under Tenn. R. Civ. P. 12.02(6) is w arranted only

when no set of facts will entitle theplaintiff to relief. Pemberton v. American Distille d Spirits Co. , 664 S.W.2d 690, 691 (Tenn. 1984). Moreover,2 Assistant Attorney General Merrilyn Feirman was not served with process and was

subsequently dismis sed. There is no a ppeal from her di

smissal. In addition, Ms. Feirman’s name is spelled a number of different ways in the record. The spelling used in thisopinion is how her name is spelled in the trial court’s order dismissing her as a defendant. 2 a complaint should notbe dismissed no matter how poorly drafted if it states a cause of action. Dobbs v. Guenther , 846 S.W.2d 2 70, 273 (Tenn. App. 1992). In Humphries v. West End Terrace, Inc. , 795 S.W.2d 128 (Tenn. App. 1990), this Court said:

A motion to dismiss pursuant to Rule 12.02(6), Tenn. R. Civ. P., for failure to stat e a c laim upon which relief can be grantedis the equivalent of a demurrer under our former common law procedure and, thus, is a test of the sufficiency of

the leading pleading. Cornpropst v. Sloan , 528 S .W.2d 188, 190, 93 A.L.R.3d 979 (Tenn. 1975). Such a motion admits th e truth of all relevant and material averments contained in the complaint but assert s that such facts do not constitute a cause of act ion

. Cornpropst , 528 S. W.2d at 190. A complaint should not be dismissed upon such motion “unless it appears beyond doubt that the plaintiff canprove no set of fa cts in support of his

claim that would entitle him

to relief.” Fuerst v. Methodist Hos pital South , 566 S.W.2d 847, 848 (Tenn. 1978). In con sideri ng whether to dismiss a complaint for failureto state a claim upon whichrelief canbe granted, the c

ourt should constru

e the complaint libe

rally in favor of the plaintiff taking all of the allegations of

fact therein as true. Huckeby v. Spangler , 521 S.W.2d 568, 571 (T enn . 1975). Humphries , 795 S.W.2d at 130. On appeal, issues raised by a Rule 12 .02(6) motion to dismi ss

are questions of law that are reviewed de novo with no presumption of correctness. Owens v. Truckstops of Am. , 915 S.W.2d 420, 424 (Tenn. 1996). With the above rules in mind, we examine Plaintiff’s complaint filedSeptember 5, 1997, against Judge Donald P. Harris, Joseph Baugh, Ronald Davis, Eric Davis, John Hender son, La rry Drolsum, Merrilyn Feirman 2 , Jim Rice and Mark Adams. Th e perti nent allegations of the complaint are as follows: H

aynes is incarce

rated at the Wes

tTennesseeHigh Security Faci lity serving a life sentence for first degree murder. Haynes, along wi th a co-defendant, Nathaniel Fleming, were convicted

of first degree murder on October 20, 1990. After his conviction was affirmed on appeal, Haynes filed a petition for post-conviction relief on June 27, 199 4, i n the Hickman County Criminal Court

. Defendant Jim Ric

e is the court clerk. On July 28, 1994, an

answer to the petition was filed by Defendant Ronald Davis, who is the Assistant District Attorney. In July 1994, counsel from the public defender’s office was appointed by Cri minal3 Fleming had filed his petition for post-conviction relief in the Hickman Criminal Court

on or about

October 12, 1993. Drolsum was appoin ted by the court to r

epresent Fleming o

n this matter.
4 The complaint

also alleges that in January 1997, Haynes filed a proceeding for writ of mandamus in federal court. According to his complaint and brief, this motion is pending appeal in the Sixth Circuit Cou

rt of Appeals. 3 CourtJudge Donald P. Harris to represent Haynes. Defendant John Henderson is the D istrict Public Defender. Haynes avers that he never learned the name of his appointed counsel nor was he ever contacted by the appointed counsel until the date of the hearing on his petition on March 26, 1996, when Assistant Public De fender Larry D

rolsum met with

him. In the interim, Haynes filedtwo motions, one on July 15, 1995 and the other on January 4, 1996, requesting the court to reappoint counsel to represent him since he had not heard from anyone from the pu blic defender’s office. These motions were denied on the day of the March 26, 1996 hear ing. During the pr oceedi ngs on March 26, 19 96 before Judge H

arris, Haynes ob

jected to Drolsum’s representation arguing that there was a con flict of interest s ince Drolsum was a

lso representing Haynes’ co-defendant, Nathaniel Fleming. 3 Haynes avers that Drolsum and Fleming had met

on several occasions beforehand and that this was the first time he had met or conversed

withDrolsum. Haynes a lso objected to the

consolidation of hi

s petition with his

codefendant’s petition and to the fact that he had not been contacted by his appointed attorney prior to the da y of the hearing. Furthermore, Haynes submits that Judge Harris, during the proceedings,

stated the issues that he would allow to be raised during the hearing. Haynes avers that none of the issues stated by the judge were raised by him in his petition. Because of Haynes’ objections, Judge Harris appointed Mark Adams, a private attorney, to represent Haynes on

July 24, 1996. Haynes subsequently contacted Adams in August of 1996. Adams stated that he was unaware of his being appointed as counsel to represent Haynes but that he would check into the matter. Haynes avers that he never heard from Adams or the court. The complaint alleges

actions u nder 42 U.S.C. § 1983, § 1985(2) and (3) for violation of his constitutional rights under the United States Constitution and the Tennessee Constitution. 4 Haynes also seeks damages pursuant to 42 U.S.C. § 1986. Haynes alleges that the Defenda nts violatedhis right of acce

ss to the court and his rights of due process and equal protection of the4

law due to the manner i

n which his petition w

as handled in that t

he Defendants c

onspired against him to violate his constitutional rights and that they knew or shou ld have known about the conspiracy and did not stop it. Haynes requests a declaration that his rights were violated and an award of comp

ensatory damage

s. The Defendants subsequently filed motions pursuant to Tenn.R.Civ.P . 1 2.02(6) to dismiss the complain

t for failure to

state a claim upon which relief can be granted. On March 20, 1998, the trial c

ourt granted the D

efendants’ motio

ns to dismiss. Haynes appeals and the only issue for review is whether the trial court erred in granting the Defendants’ motions to dismiss. Haynes’ complaint purport s to state a claim

under 42 U.S.C. § 1983, § 1985(2) and (3), and § 1986 due to an alleged conspiracy to deprive him of his right of access to the courts and his due process and e

qual protection r

ights. “It is well-settled that conspiracy claims must be pledwith some degree of specificity and that vague and conclusory allegations unsupportedby material facts will not be sufficient to state such a claim under § 1983.” Gutierrez v. Lynch , 826 F .2d 1534 , 1538 (6th Cir. 1987). The same is true in order to state a claim under 42 U.S.C. § 1985(2). Jaco v. Bloechle , 739 F.2d 239 , 245 (6th Cir. 1984). As for 42 U.S.C. § 1985(3), along with requiring specificity, there must also be allega tions of a class-b

ased conspirac

y in order to state a claim. Id. (citing Griffin v. Breckenridge , 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971); Taylor v. Brighton C orp. , 616 F.2d 256 (6th Cir. 1980)) ; see also Dunn v. Tennessee , 697 F.2d 121, 124 (6th Cir. 1982) (To stat

e a claim under § 1985(3), a complaint must allege both a

cons piracy and some class-based discriminatory animus behind the conspirators’ action.). From a review of the allegations contained in Haynes’ complaint, we find that they are insufficient

to withstand a motion to dismiss for failure to state a claim. Haynes’ allegations lack the requisite materi

al facts and spec

ific ity ne cessary to sustai n a conspiracy c

laim. His allegations also fail to allege a class-based conspiracy for § 1985(3) purposes. Th us, the trial court properly dismissed Haynes’ claims under § 1983 and § 1985(2) and (3). M oreover, because Haynes’ § 1986 claim is dependent upon the existence of a valid § 1985 cause of action, it was properly dismissed likewise. See Jaco , 739 F.2d at 245.5 Although Defendants in the trial court and again in this court

present severa

l other valid reasons for the dismissal of thecomplaint for fai lure tostate a claim upon which relief can be granted, we will not prolong this opinion by delving into them separately. Accordingly, the orders of the trialcourt dismissing the complaint are affirmed, and the

case is remanded to the trial court for such further proceedings as may be necessary. Costs of the appeal are a

ssessed against th

e appellant.

_________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE