# FILED
July 16, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

RUSSELL WELLINGTON, ) ) Plaintiff/Appellant, ) ) Appeal No. VS. ) 01-A-01-9807-CH-00363 ) ROBERT S. LEDFORD, DAVID ELAM, ) Davidson Chancery RICHARD MERCHANT, JASON ) No. 97-4154-III BROOKS, CPL. SCOTT, SANDRA ) HALL, WARDEN RICKY J. BELL, ) ) Defendants/Appellees. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR RUSSELL WELLINGTON, #122766 R.M.S.I. #1-B-209 7475 Cockrill Bend Industr ial Road Nashville, Tennessee 37209- 1010 Pro Se/Plaintiff/Appellant PAUL G. SUMMERS Attorney General and Repor ter PAMELA S. LORCH Assistant Attorney Gener al 425 Fifth Avenue North Nashville, Tennessee 37243-0488 Attorney for Appellees Ledford, E lam, Merchant, Brooks, Scott and Bell WILLIAM BARRY WOOD 326 Washington Square Building 222 Second Avenue, North Nashville, Tennessee 37201 Attorney for Appellee Hall

AFFIRMED IN PART; REV ERSED IN PA RT;

AND REMANDED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. CAIN, J.- 2 - 

## O P I N I O N

A prisoner in the custody of the Department of Correction cl aimed that five prison guards brutally assaulted him while he was shackled in full restraints. He also claimed that another guard and the warden responded to the alleged assault in
a negligent way.The trial court dismiss ed the claims agai nst all the defendants, stating among other

things that they posses sed absolute immunity for their actions. We affirm the dismi ssal of t he warden , and of the guard who alleged ly f ailed t o provide timely medica l help, but we rever se as to the five remaining defendants.
I. The Allegations of the Complaint
The plaintiff, Russ ell Wellington, is a prisone r at the Riverbend Maximum Security Prison, who was obviously regarded as

a nuisance by some of the guards. The following excerpt

s from his hand-written compl aint, which was fil ed on December 16, 1997, convey the flavor of the interactions between the defendan ts and Mr. Wellington: 5. On September 29, 1997, plaintiff was moved from

unit #(1) one, at Riverbend prison in Nashvill e to uni t #(3) three at the same prison. 6. On September 30, 1997, at or abo ut 9:30 a.m. defendant David Elam entered B -pod o f unit #(3) three and the plain tiff go t his attention and inquir ed of the units’ rules a nd regulations. Defendant responded with hostile arrogance, stating

that it’s alw

ays som ething

with t he plaintiff, and that the

plainti ff would get “no

thing” from him or his s

taff pertaining to unit rules and procedures. 7. On October 16, 1997 plaintiff fi led an inmate grievance, alleging “failure to communicate by unit #(3) three team members. 8. On October 22, 19 97, a hearing was ha d on plaintiff’s October 16, 1997 grievance. Defendants Elam and Ledford acted as the Grievance C ommittee. DefendantElam began the he aring by badgering the plai ntiff, and accusing him of being a

problem. 9. O n Octobe r 17, 1997, plaintiff sent (3) thr ee personal documents to defendant Elam, by defe ndant Ledford; these documents pointed out the reas on p l aintiff was moved from unit #(1) one, to unit #(3) three. Defendant- 3 - Elam took the documents, and refused to return them to plaintiff. 10. On October 28, 1997, plaintiff filed an inm at e grievance, alleging “refusal to return personal documents by Unit Team Members.”

The com plaint continues in the same v ein, with Mr. Wellington continuing to attempt to registe r his grievances, and Officer El am refusing to cooperate, and thereby generating more gri evances. On the morning o f November 5, 1997, the plaintiff was escort ed to Officer Elam’s office to have s ome legal documents notarized:

15. Plaintiff was wearing full restraints. 16. Upon entering defendant Elam’s office, he was surrounded by defendants Brooks, E lam, Ledford and Merchant. 17. The issue of plaintif f’s relea se from a dministr ative segregation (A.S.) w

as being discussed. 18. During the course of the conversati on defendant Elam became enraged with ang er, and made numerous obnoxi ous and h ostile

stateme nts to pl aintiff. 19. Plaintiff then inquired of defendant El am why h e always insulted hi m each time they met. 20. Defendant Elam’s response to plaintiff’s inquiry was “Because I’m in charge i n this unit, and I can do anything that I want to.” With that the (A.S) i ssue was discontinued.

Officer Brooks refused to notarize Mr. Wellington’s document becau se of the plaintiff’s use of an a.k.a. name on th e documents. Officer Elam then stated that he wanted the plaintiff out of his office. At that point, the situation became uglier:

27. Plaintiff then gather (sic) his documents, tur ned to leave defendant

Elam’s office; a

s plaintiff stepped to the door of Defendant Ledford’s office and grasped thedoor knob, he was attacked by defendantElam, w ho grab bed plai ntiff’s l eft arm and rammed pla in tiff into the door, causing him t o stumble into Unit #(3) three center core, where plaintiff was then attacked by defendants Brooks, Scott, Merc hant and Ledford. 28. Defendant Brooks grabbed plai ntiff’s right arm and began twisting it violently as he punched plaintiff in the ribs. 29. Defendant Scott had a hand around plaintiff’s throata s h e struck plaintiff over the head with a security radio.1 Mr. Wellington al so claimed that the defendant

s had viol ated Tenn. Code Ann. § 41-21-404, which reads:

Unauthorized means of punishm ent. -- No conv ict sh all be punished i n any way ot her than is pr

ovided i n this t itl e, except by authorit y of the commissioner of correct ion. W hile this statute establi shes an important pr incipl e for the ef

fective governance of our pri sons and for the pr

otectio n of the consti tution al rights of

inmates, it

does not appear t

o create a private right of action for it

s violation. - 4 -

30. Defendant Merchant had a hold of the ch ai n around plaintiff’s waist, a nd was pulling v iciously on it. 31. As plai ntiff

was shoved back

into the defendants’ offices, defend ant Ledf ord spraye d a chemi cal spray (F reeze plus p) into plaintiff’s ey es, nose, mouth; which w as opened due to defendant Scott’s grip on h is throat. 32. After th e assault, plai ntiff was dragged

outside into the recreation area, throw n in a cage, and l eft for over an hour laying in the cage, still wearing full restraints.

II. Proceedings in the Trial Court

Mr. Wellington claimed that the defendants had acted under color of l aw to violate the constituti onal prohibition against cruel and unusual punishment. See Amendment 8, U.S. Constitution, and 42 U.S.C. § 1983. 1 He asked the court to award him $10,000 in compe nsatory da mages and $10,000 in punitive damages against each defendant.

The State moved on behalf of the defendants to dismiss the complaint forlack of subject matter jurisdiction and fail ure to state a claim upon which relief can be granted. See

Rules 12.01(1) and (6) Tenn. R. Civ. P.

The plaintiff filed a numb er of motions, including a M otion for Writ of Habeas Corpus ad Testificandum, to be all owed to appear at the hearing of the

case. See Tenn. Code Ann. § 29-21-107. The motion was denied. At the heari ng, the trial court denied the plaintiff’s remaining moti ons, and granted the defendants’ Motion to Dismiss. In her memorandum and order, the chan cellor stated: “[t]he plainti ff asserts that his rights were

violated whendefendant correctional officer David Elam allegedly verbally harassed the plaint iff on September 30, 1997, October 22, 1997 and- 5 -

November

5, and 18, 1997 and when defen dant correctional officers . . . allegedly physically restrained the plaintiff on November 5, 1997.”

The court characterized the plaintiff’s claim as a “neg ligent tort action.” Since the defendants were state employ ees, and their acti ons were arguably performed within the scope of their employment, she concluded th at under the t erms of Tenn. Code Ann. § 9-8-307(h), “the defendants have absolute immunity from these claims. ” The court also stated that “the factual basis of the plaint iff’s complaint are
numerous incid ents o f verbal harassment by defendant David Elam. Verbal harassment, however, does not ri se to the level of an eighth amendment violation and does not state a cause of action for constitutio nal violations.”

The plaintiff filed a motion f or relief from judgment, in which he pointed out that he was claimin g t hat the d efe ndants were guilty of more than mere verbal harassmentor physical restr aint. The chancellor agree d, but while she agreed

to alter the language, she allow ed the result to remain the same. In a memorandum and order that were filed on Oc tober 22, 1998, the trial cour t stated: “The C ourt agrees that its memorandum shoul d be altered to ref lect t hat the petitioner asserts that he was brutally beaten, spray

ed with chemical and fully restrained. “These claims, however, s eek compensatory and punitive dam ages . The Chancery Court is not permitted to award such unliquidated damages. Tenn. Code. Ann. § 16- 11-102(a ). The Court, therefore, does not hav e jurisdiction to consider the petitioner’s eighth amendment claim and the Cour t’s dismissal of the same on June 17, 1998 i s appropriate.
This appeal followed.

III. Failure to State a Claim a. The Allegations of Assault2 W e agree with the chancell or that t he alleged ve rbal threats or harassment do not rise to t he level of an Eighth Amendment viol ation. - 6 - The purpose of a mot ion unde r Tenn. R. Civ. P . 12.02(6) for failure to state a claim upon which rel ief may be gran te d is to test the sufficiency of the complaint. Merriman v. Sm ith , 599 S.W.2d 548 (Tenn. App. 1 980) . Such a motion admits the truth of all relevant and material allegations, “but asserts that such f a cts do not constitu te a cause of action as a matter of law.” Pursell v. First Am erican National Bank , 937 S.W.2d 838 (Tenn. 1996). In examining a complaint in the face of such a motion, the trial c ourt shoul d therefore construe the complaint liberally in favor of the pl aintiff, taking all the allegations of fact therein as true. Sullivan v. American

Homes, Inc. , 605 S.W.2d 246 (Tenn . App. 1980). Dismissal under Rule 12.02(6) is warranted only when no set of facts will entitl e the plaintiff to relief, or when the complaint

is totally lackin g in clarity or specificity. Dobbs v. Guenther , 846 S.W.2d 270 (Tenn. App. 1992).

In the present

case, Mr. Wellington’s allegations are not lacking in clarity
or specifi city. They cl early descri be the use of exce ssive physic

al fo rce by st ate employeesagainst a prisoner w hose actions di d no t pose any imminent danger t o them, for no apparent

purpose other than to punish hi m for questioningthe limits of theirauthorit y. 2 Such conduct, if it can be prov ed, cannot be tolerat ed in a society which claims to be based upon the rule of law.

Mr. Wellington has stated a claim for a possible violation of the Eighth Amendment prohibition again s t cruel and unusual punishment ( as well as of the parallel prohibition in Ar t icle I, § 17 of the Tennessee Constitution). If proven, h is allegations

can support a judgment unde r 42 U.S .C. § 1983 for deprivation of constitutional rights

under color of state law.

We do n ot agree with the trial cour t that the defendants are immune from liability for their

actions by virtue of Tenn. Code A nn. 9-8-307(h). That statute is pa rt of th e act establishing the Tenness ee Claims Commission to hear and- 7 -

determine claims against the State. The effect of the act is to re move the sovereign immunity of the State for injuries caused b y the negligent actions of its officers and its employe es. A s a corollary, the empl oyees themselves are i mmunized from liability arising from the sa me acts for which the state has consented to be sued. But it is clear that the grant of immunity i s not unlimited. The statut e reads in relevant par t: (h) State officers a nd employees are absolutely immune from liability

for acts or omissions w ithin the scope of the officer's or employee's offic e oremployment, except for willful, malicious, or criminal acts or omissions or

foracts or omissions done for personal g ain.

The acts alleged on the face of the complaint are not merely negligent,
as the trial court initial ly stated, but they appear to fall within the definiti on of acts for which Tenn. Code Ann. § 9-8-307(h) affords no immunity. The chancellor her self may have recognized this fact, f or after modifying her characterization of the plaintiff ’s claim, she appears to have altered the basis upon which she dismissed the complaint.

We accordingly reverse the dismissal of the claims against defendants Robert S. Ledford, David Elam, Jason Brook s, Richard Merchant and Corporal Scott forfailure to state a claim upon w hich relief can be grant ed. In reve rsing the trial court, we express no

opinion as the truth of Mr. Wellington’ s allegations, or as to the ultimate merits of his claim, but merely assert that he has demonstrated that he is entitled to his day in c

ourt.
b. The Claim against Se rgeant Hall

The claims against the other two defendants stand u pon a different footing. Mr. Wellington’s claim against officer Sandra Hall is based upon her failure to promptly arrange for medi cal help after he was allegedly thrown into a cage in full restraints: 33. Se c ond shift officers removed plainti ff from the cage, and removed the restraints. 34. Plaintiff made arequest to the second shift officer in charge - Sergeant Sandr a Hall, to be seen by medic al, due- 8 - to complications in breathing, and usual(sic) problems, and serious head pains; this request w as made at 2:1 5 p .m., or about. 35. At or

about 7:20 p.m., while being escorted from the recr eation area plaintiff passed-out in the pod,and was carried there over ni ght.

The United States Supreme Cour t has stated that “deliberate indifference to seriousmedical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. Estelle v. Gamble , 429 U.S. 97, 104 (1976). This simple statement implies that two necess ary components
are required to implicate the Eighth Amendment: a subjective component inv olving the motivations

of the individual who den ies appropriate medicalcare to the injur ed party; and an objective component, inv olving the seriousnes

s of the unmet medical need.

The plaintiff does no t alle ge that Se rgeant Ha ll acted d eliberat ely, maliciou sly, intentionally or criminally in failing to respond promptly to Mr. Wellington’s request, nor do we perceive in the facts recited by him any indicatio ns of such motive. Thus, the claim against Sergeant Hall sounds in negli gence.

The United States Supreme Court ha s ruled that actions broug ht under 42 U.S.C. § 1983 cannot b e b ased on negligent conduct. Daniels v. Williams , 474 U.S. 327 (1986). See a lso Shell v. State , 893 S.W.2d 416 (Tenn. 1995). Such a claim would be bet ter addressed in the Claims Commission, which w hile granting immunity to the negl igent employee, makes the State answ er in damages for her negligence. The trial court did not err in dismissing the claim against Sergeant Hall.

c. The Claim A

gainst Warden Bell

The plaint i ff’s claim against Warden Ricky Bell is based upon the warden’s failure to take any disci plinary actions agai nst the five guards after the plainti ff wrote a letter to him about the assault. The plaintiff also claim ed that the- 9 -

warden knew of

earlier incidents of cru el or harsh treatment against other inmates by defendants Elam, Ledford and Brooks, but di d nothing about them.

A claim filed under

42 U.S.C. § 1983 must allege that the defendant was personally involv

ed in the alleged unconstitutional conduct: “Section 1983 liability

will not be imposed solely upon the basis of respondeat superior. There must be a showing tha t the supervisor encoura ged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show th at a supervisory official a t l east implicitly authorized, approved or knowingly acquiesced in the unco ns titutional conduct by the offending subordinate.” Bellamy v. Bradley

, 729 F.2d 416, 421 (6th Circuit 1984).

Insofar as Mr. Wellington’s claim refer s to th e warden’s failure to act after t he alleged unconstitutional conduct by his subordina tes, it fails to establish a sufficientbasis for believing that the warden was

personally invol

ved in those events themselves.
Further, Mr. Wellingto n does no t offer any specifics to support his allegations

of prior inc

idents of brut

ality at the prison in

volving some of the same guards, or that the warden wa s aware of

such incidents. Conclusory allegations are not suf f icient to state a claim under 42 U.S.C. § 1983. Chapman v. City of Detroit , 808 F.2d 459, 465 (6th Circuit 1986).

If it is valid at all , the claim against Warden Bell, like the claim against Sergeant

Hall, would sound in negligence. If the earlier incidents did in fact occur, he could possibly be guilty of negligent supervision, even if he was n ot aware of them. Once again, such a claim would best be addres sed in the context of a proceedi ng against the State in the Cl aims Commission.

IV. Jurisdiction- 10 - The Chancellor

correctly noted

that the legislature has not granted the Chancery Court jurisdiction over cases involv ing unliquidated damages for personal injuries. Tenn. Code Ann. § 16-11-102(a). However Tenn. Code Ann. § 16-11-102(b) indicatesthat when such a case is filed in chan cery cou rt, and objection is taken t o the c ourt’s jurisdiction,the court may transfer it to Circuit Court. In Flowers v. Dye r County , 830 S.W.2d 51 (Tenn . 1992), our Supreme Court stated that “[i]mplicit in the provi sions of Tenn. Code Ann. § 16-11-102 is the pos itive inference that w her e a jurisdictionalobjection has been made, such a transfer is mandated.” 830 S.W.2d at 53.

The State attempts to di s tinguish this case from Flowers on the basis that Flowers

involved a claim under

the Governmental Tort Liabil ity Act (GTLA), Tenn. Code Ann. § 29-20-101, while the present case does not. But the Flowers

court did not limit its holding to GTLA cases, and there appears to be no reason to permit the Chancery Court to dismiss, rather than transfer, an otherwise valid claim that it could have entertai ned, if objection had not been made to its j urisdiction. Thus the tri al court erred in dismissi ng this case on jurisdi ctional grounds.

V. Waiver

The State als o argues th at Mr. W ellington has waived h is right to h ave his 42 U.S.C. § 1983 claim considered by a trial court, because of a claim he filed with the Claims Commission containi ng the same facts. TheState asserts that the alleged claim was filed o n Febr uary 5, 1998, and invokes Tenn. Code Ann. § 9-8-307(b) which reads: Claims against t he state filed pursuant to subsecti on (a) shall operate as a waiver of any cause of actio n , based upon the same act or omission, w hi ch the claimant has against an y state officer or employee. The waiver is void if the commission determines that the act or omission was not within the scope of the of ficer’s o r employe e ’s office or employment. However, there is nothing in the r ecord to suggest that thi s a rgument
w as raised bel ow, or even that the al leged claim was ev er filed. Instead, the State- 11 -

refers us to a certified copy of a “Notice of Appeal from Denial of Claim by the Division of Claims Administration” w hich it has appended to its br ief.

The jurisdiction of this court is appellate only . Tenn. Code Ann. § 16-4- 108. Thus, while any

question of law may b e brought up for revi ew, see Rule 13(a), Tenn. R. App. Proc., we may not deci de questions that were not brought up in the court below. Further, w e are notrequired to consider fact s thatwere not presented to the trial court. Rule 13( c), Tenn. R. App. Proc. Thus, w e would not feel compelled to address the argument of wai ver, were it not for

the likelihood that the

defendants would assert it in th e trial court upon remand.

We are not aware of any case in which theTennessee Supreme Court has determined that the filing of a cl aim in the Claims Commissi on req uired t he dismissal of a earlier-filed trial court complaint brou ght under 42 U.S.C. § 1983 for intentional deprivation of constitutional rights . However the appell ee has directed our attention to a case decided by the United States Court of App eals, in which the Federal Appeals Court made such a deter mination, White

ex rel Swafford v. Gerbitz , 860 F.2d 661 (6th Circuit. 1988) (Jones, J. dissenting).

We note that in the Swafford case, the Sixth Circuit took great pains to
ensure that it

s decis ion did not resu lt in th e plaintiff irre vocably losi ng his f

e dera l rights. The Appeals Court instruct ed the U.S. District Court to i nclude language in its order of dismissal to the effect that if the w aiver provision was not invoked due to

the defendant’s act being deemed to be outside thescope of his empl oyment,the plai ntiff
was entitled to have his cl aim reinstated in the federal district c ourt, with the Statute of Limitations on the

federal cause of action being tol led in the interim. Despite this safeguard, Judge Jones, the dissenting judge, declared himself to be disturbed by the majority’s opinion, because the Court’s decision “exalts a s tate waiver provis ion above a plaintiff’s right to seek relief for unconstitutional acts. ”- 12 - A further indication of the Court’ s discomfort with such a result may be found in the earlier

case of Leaman v. Ohio Dept. Of M ental Retardation , 825 F.2d 946 (6th Circuit 1987). The C ourt sat en banc to hear that cas e, which involv

ed a waive rprovi sion in Ohio law simi lar to Tenn. Code Ann. § 9-8-307(b). While a majority of the 14 judges (one judge recused himself) agreed that the w aiver was effect ive to require dismissal of the plaintiff’s 42 U.S.C. § 1983 claim, the case also generated six separate dissenting opin ions bas ed on objections similar t o the one quoted above.

We share t he concern of the Sixth Cir cuit for the protection of constitutional rights. However, the courts of this state are not bound by the decision in the Swafford

case, and we do not believe that Mr . Wellington has waived his constitutional claims. The Legislature enacted Tenn. C ode Ann. § 9-8-307(b) to avoid the danger of inconsistent or duplicative judg ments in different tribunals, not to create
a trap to hinder or delay the diligent pro se plai ntiff. In the present case, it is apparent to us that the circuit court is the most appropriate forum for dealing with the alleged assault b y the five guards. The al legedly neglig ent conduct by other Departmental employees, all of which occurred either before and after the alleged assault, is bet ter addressed by the Claims C ommission.

VI.

We affirm the trial court’s dismissal of the plaintiff ’s claims against defendants Hall and Bell, and reverse the dismissal against defendants Ledford, Elam, Merchant, Bro oks and S cott. Remand this cause to the C hancery Court of Davidson County with instructions to transfer it to the Circuit Court. Tax one-third of the costs on appeal to Appellant Wellington, a nd two-thirds to appell ee s Ledfo rd, Elam, Merchant, Brooks and Sc ott.- 13 - ______________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE