# FILED
February 25, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON ANTONIO SWEATT, ) ) Plaintiff/Appellant, ) Lake Circuit No. 98- 7744 ) VS. ) Appeal No . 02A01-9808-CV- 00227 ) DONAL CA

MPBELL, et al, ) ) Defendants/Appellees. )
APPEAL FROM

THE CIRCUI T COURT OF LAKE COUNTY AT TIPTONVILLE, TENNESSEE THE HONORABLE R. LEE MOOR E, JR., JUDGE

ANTONIO SWEA

TT, pro se Only, Tennessee
PAUL G. SUMMERS Attorney

General and Reporter MICHAEL MOORE Solicitor General PAMELA S. LORCH Assistant A

ttorney General Nashville, Tennessee Attorney for Appellees

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J.
Antonio Sweatt, a pro

se inmate, has appealed the trial court’s dismissal of this civil1. Every person who,under color of any statute, ordi nance, regulation, custom, or usage, of any State

. . . , subjects, or causes to be subj ected, any citi zen of the United States or other person within the juri sdicti on thereof t o the depri vation of

any ri ghts, pri

vileges,or immunities secured by the Con stitutio n and laws , sha ll be liabl e to the par ty i njured in an action at law, suit in equity, or oth er prope r procee ding for re dress. . . . . 42 U.S.C. § 1983 (1994 ). 2. If two or m ore pers ons in an y State . . . conspire . . . for the pu rpose of deprivi ng, eit her direc tly or indi rectly , any perso n or class of p ersons of the equal pr otectio n of the laws, or of equal privi leges and immunities under the l aws, or for the purpose of prev enting or hinderi ng the constit uted authorities of any State . .. from givi ng or securingto all persons withi n such State

. . . the equal protection of the laws; . . . [ and] if one or more pers ons enga ged there in do, or cause to be done, any act i n furtherance of the object of such conspira cy, whereby another is inj ured in hi s person or prop erty, or depriv

ed of having an d exercisi ng any ri ght or privi lege of a citizen of the United States, the party so injuredor depriv

ed may have an acti on for the recovery of damage s, occasioned by such injury or depriva tion, against any one or more of the conspir

ators. 42 U.S.C.S. § 1985(3) (1989 ). 3. Every per son who, having kno wledge that any of t he wrongs conspiredto be done, and mentioned in the pr

eceding section, are about to be committed, and havi ng power to prev ent or aid in preventing the comm ission of the s ame, neglects or r efuses so to do, if such 2 rightsaction that was

brought against several in dividually named Tennessee Department of Correctio n (TDOC) em ployees. Based up on the f ollowing, we affir m the trial court’s dismissal.

Facts and Procedural His tory

On February 12, 1998, Sweatt filed a complaint against Do nal Campbell, Fred Ran ey, James Dukes, Steven E. Gatl in, Pamela Blakley, and C .O. Minnick (he reafte r collectively

referred to as the “Defendants”), naming all D efendants in their individual capacitie s. Campb ell was alleged to be the TDOC Commissioner, and the remaining defendants were alleged to be TDOC employeesw ho worked at the TDOC’s Northwest Corr e ctional Complex, located in Tiptonv ille, Lake County, Tennessee. Raney was the Warden; Dukes was the Associ ate Warden of Operation s; Gatlin was an adm inistrat ive lieutenant; Blakley w

as a correctional officer and the mail room clerk; and Minnick was a correctional officer.

Sweatt’s action was based upon federal claims of civil rig hts violatio ns. The clai ms
w ere brough t under sections 1983, 1985(3),and 1986 of Title 42 of the United States Code, based upo n alleged deprivations of civil rights, 1 conspiracies to interfere with civil rights, 2 and neglect to prevent conspiracies. 3 The civil rights that were alleged to h av ewrongful act be co mm itted, shall be liab le to the par ty injured

. . . for all damages caused by such w rongfu l act, which s uch pe rson by re asona ble diligence could ha ve preve nted . . . . 42 U.S.C.S. § 1986 (198 9). 3 been violated included Sw eatt’s right to adequate,effective, and meaningful access to the courts, his First Amendment right to petition the government for a redress of grievances (without retaliation), and purported state statutory rights.

A cco rding to Sweatt’ s original complain t, along wit h its atta ched exhi bits, two separate prison facilities, formerly named the Lake County Regi onal Correctional Faci lity and the Northwest Corr ectional Center, were consolidated and renamed as the Northwest Correctional Complex. Prior to consolidation, the facility in which Sweatt w as imprisoned had its own mail room. After consolidation and effec tive Ja nuary 20, 1998, however, all mail room servi ces were consolidated t o a restricted area in a s eparate administration building. Sweatt’s complaint alleged that

the prison’s mailing policies and procedures that
were in effect subsequent to this cons olidation, combined with certain actions (or inactions) taken by the Defendan ts, inter fered with his access to the courts, and that the mail procedures“perhaps could caus e [Sweatt] to lose his pend ing cases” due to mailin g delays.

Sweatt alleged that official TDOC policies and procedures provided for the mailing of outgoing “legal

mail” from indigent inmates,whereby the institution paid for the costs of postage upon the execution of a “personal withdrawal req uest” by the inmate (so tha t the funds could be remo

ved from his trust account when the funds became available). He further alleged that he is an indi gent inmate who is entitled to the costs of postage for legal mail upon the exe cution of a personal withdraw al request. According

to his complaint,
some conflict arose either from the TDOC’s po licies and procedures or from the implementation of these policie s such that the Defendants denied Sweatt the costs of postage for legal mail. More specifically, he alleged thatthe Defendants denied Sweatt the costs of postage for documents that were required to

be “served upon each of the parties” under Tennessee Rule of Civil Procedure 5 in either this lawsuit or other lawsuits. He explained that certain legal mail had been charact erized as “priv

ileged mail,” andthat he4. Tennessee Code Ann otate d title 4 1, ch apte r 21, p art 8, w hich is titled “Laws uits by Inm ates,” pe rtains to

claim s brough t by inmate s “in which an affida vit of inability to pay cos ts is fi led with the claim by the inm ate.” See Tenn. Code A nn. § 41-21-802 (1997). 4 had been required to pay the postage of such pri vi leged mail without the benefit of executing a personal withdrawal request. He does not allege, however,that he was ever prevented from mailing or unable to mail legal mail as

a result of the Defendants’ actions. He simply maintains that the D efendant s’ actions, which caused mailing delays, “could cause” his lawsuit(

s) to be dismissed.

His original complaint si mply sought injunctiv e relief from future violations of his civil rights, asserting that such inj unctive relief “could s top confusion,” and he did not assert any claim for damages. However, on March 23, 1998, Sweatt filed a motion for leav e to file an amended complaint, which w as later granted by th e trial cou rt, along with a copy of the amended complaint. The amended complaint asser ted additional claims for relief against each of the Defendants, though it still s imply maintained that the alleged condu ct and procedures“could” detrimentally affect his pending lawsuits. In addition to theinjuncti ve reliefthat was sought in the original complaint, the amended complaint also sought a declaratory judgment th at Sweatt’s rights had been violated, compensatory damages for mental or emotional injury , and punitive damages.

In April 1998, the Defendants moved for the dismissal of Sweatt’s acti o n. They asserted that Sweatt’s complaint shoul d be dismissed based upon a failure to comply wi th Tennessee Code Annotated sections 41-21-801 et seq. , 4 an d that Sweatt’s complaint failed to state a claim upon which relief can be granted. Subsequently, Sweatt filed a motion for continu ance , seeking time to conduct di scovery. Moreov er, Sweatt later filed another related motion, which he titled “Motion for Exten sion of Time for the Completion of Requested Discovery

from Defendants.” On July 6, 1998, the trial court enter ed an order that grante d Sweatt’s motion to amend his complaint, denied Sweatt’s motion(s) for continuance to allow discovery, and granted the Defendants’ motion to dismiss

. On appeal, Sweatt asserts tha t the trial court e rred by not aff ording h im addit ional time to conduct discovery, and that the trial court er red in dismissing his

action.5 Analysis
A. Continuance and Discovery

In this case, Tennessee Code Annota ted sec tion 41-21-804(d) requi red the trial court to suspend all discoveryupon the filing of a motion to dismiss asserting that a claim is frivolous or malicious . Tenn. Code Ann. § 41-21-804 (1997) . Section 41-21-804 sets forth three factors for courts to con sider in determining w he ther a clai m is frivolous or malicious. These factors are “whether or not: (1) The claim has a chance of success; (2) Th e claim has a basis in law and in fact; and (3) The claim is substantially similar to a previousclaim filed by the inmate in that the present claim arises from the sameoperative facts.” Tenn. Code Ann. § 41-21-804(b) (1997). Because Defendants’ motion to dismiss
was based, in part, upon the assertion that Sweatt’s claim had no basis in law and in fact ( i.e. , that Swea tt failed to state a claim upon w hich relief can be granted) , the motion to dismiss amo unted to one that asserted Sweatt’s claim to be frivolous or malicious. Accordin gly, the trial court was r equired t o suspend all discovery, and this issue has no merit.

B. Dismissal / Exhaus tion of Remedies

Tennessee Code Annota ted se ction 41-21-806(a) sets forth the following requirement in lawsuits filed by inmates: An inmate who files a claim th at is subject to revi ew by the griev ance committee established by the department shall file with the court an affidavit stating thedate that the grievance was filed and the date the final decisi on was received by the inmate with a cop y of the f inal decision from the grievance committee. Tenn. Code Ann. § 41-21-806(a) (1997). The trial court’s order granting dismissal

states t hat, wh ile Sweatt filed an affidavit for the intended purpose of satisfyi ng section 41-21- 806(a), he failed to attach a copy of the grievance com mittee’s final decision. The tr ial court therefore dismissed Sweatt’s l awsuit based, in part, upon Sweatt’s failure to attach5. The tri al court’s order stat ed the fol lowing: [Sweatt] also fi led on March 23, 19 98, “Separ ate Affidavit Under Tennessee Code Annotate d § 41-21-806 . . . . He i ndicates t hat a copy of the grievance committee’ s final decision was attached to the aff idavit . The Court fi nds that a copy of his gri evance along with t he response [sic] the priso n offici als and a copy of the minutes were attache d. There is, however, no copy of the griev ance c omm ittee’s final dec ision attach ed to the a ffidavit. . . . . This claim is al so dismissed a s [Swea tt] has fail ed to fil e the fin al decisi on of the grievancecommittee. The Court i s unaware of whether or not all administrative procedures have been exha usted because the Court does not have befor e it a fi nal decisi on of the grievancecommittee. Alt hou gh, [Swea tt] spends a lot of time deali ng with t he grievance, [Sweatt]final ly st

ates that his gri evance was upheld by the grie vance committee.

6. The Inmate Grievance Response stated that th e Grievance Committee recogni zed that the Federal Rules of CivilProcedure requi re service upon parti es, which woul d make any such d ocum ents “legalmail,” and that the comm ittee found the definitions of “legal mail” and “privi leged mail” as defi ned i n TDO C polici es to be am big uous. The document then indi cated that the Warden disagreed wit h the committee’s pro pose d resp ons e bec aus e the “cur rent p roce dure s do n ot pro hibit a nyon e fro m s end ing m ail to anyone they desire for any reaso n.” Ther eafter, the document inqui red as to whethe r Sweatt wi shed to appeal the W ard en ’s unfavorable

response. Sweatt

declined an d affixed hi s signature to his resp onse.

6 “a copy of the final decision from the grievance committee.” 5 U pon review of the record before this Court, we note that, among other documents, a form document titled “Inmate Grievance Response” w as attached t

o Sweatt’s

affidavit. This TDOC for m d o cument provided for: the grievance committee’s “proposed response,”

which was completed and signed; the warden’s agree ment or disagreement, whi ch was completed and sig ned; a questionnaire to the grievant (Sw eatt) inquiring as to whether he wished to appeal from the warden’s response to the TDOC commissioner, which was declined and signed; and the commissioner’s response, if appropr i ate, which was not c ompleted and signed due to Sweatt’s failure to appeal. 6

Sec tion 41-21-806(a), which i s quoted above, serve s to help ensure tha

t al l
a dministr ative remedie s have bee n exhaust ed prior t o the exerc ise of ju dicial revi ew. However, because Sw

eatt’s suit

is based sol ely upon fede ral claims for alleged violations of his constitutional and/or state statutory civ il rights, hi s action is also subject to substantive limitations

established under

federal law, inclu ding a limitation on his rig ht to bring such an action. Section 1997e(a) of Title 42 to the United States Code, as amended bythe Prison Litigation Reform Act of 1996, establishes that “ [n]o action shall be brought with respect to prison conditions under . . . any . . . Federal law , by a prisoner

confined in any jail, prison, or other

correctional facili ty until such administrative remedies as are available are exhausted

.” 42 U.S.C.S. § 1997e(a) (Supp. 1998 ) (emphasi s added). “In7

light of the plain mandatory language of the statute regarding e xhaustion of

remedies, the legislati ve purpose underlying the plain language, and the sound policy on which it is based,

. . . prisoners filing . . . cases involving pri son conditions must allege and show that they have exhausted all

available state administrative remedies.” Brown v. Toombs , 139 F.3d 1102, 1104 (6th Cir. 1998) (emphasis added). See also White v. McGinnis , 131 F.3d 593 (6th Cir. 1997) (holding that a district court’s sua sponte dismissal of a prisoner’s civil rights suit, which sought declaratoryand injuncti ve relief and comp ensator y and puni tive damages against s everal i ndividual defendants, was proper where the priso ner filed an adminis trative grievance regar ding his claims , but did n ot pursue an admin istrative appeal of the denial of the grievanc e). In the instant case, Sweatt’ s own affidavit, with its attached Inmate Grievance Response, indicates that Sweatt failed to exhaust all a vailable state administrative remedies, because he had been afforded the oppor tunity to appeal the W arden’s u nfavorable response to the TDOC ’s commissioner, yet fail ed to do so. Therefore, the dismissal of Sweatt’s action was proper, and we pretermit further analysis of other issues addressed by the parties relating to dismissal.

Conclusion

Accordin gly, we affirm the trial Courts dis missal. Costs of this appeal are tax ed against Antonio Sweatt.
HIGHERS, J.8

CONCUR:

FARMER, J.

LILLARD, J.