FILED

October 23, 1998

Cecil W. Crowson

Appellate Court Clerk

ROCKY LEE COKER, )

 ) Davidson Brd. & Tenn. Claims 

Claimant/Appellant, ) Commission

 ) Claim No. 97003162

VS. )

 ) Appeal No.

DON SUNDQUIST, and the STATE ) 01A01-9806-BC-00318

OF TENNESSEE CLAIMS )

COMMISSION, )

 )

Defendants/Appellees. )

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

APPEAL FROM THE TENNESSEE CLAIMS COMMISSION

AT NASHVILLE, TENNESSEE

HONORABLE W. R. BAKER, COMMISSIONER, MIDDLE DIVISION

Rocky Lee Coker, C.P.L.

STSRCF, Unit 6, #108069

Route 4, Box 600

Pikeville, Tennessee 37367

PRO SE/CLAIMANT/APPELLANT

JOHN KNOX WALKUP

Attorney General and Reporter

Ms. Heather C. Ross

Assistant Attorney General

Cordell Hull Building, Second Floor

426 5th Avenue North

Nashville, Tennessee 37243-0499

ATTORNEYS FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED.

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

BEN H. CANTRELL, JUDGE

CONCUR IN THE RESULTS:

WILLIAM C. KOCH, JR., JUDGE
-2-

ROCKY LEE COKER, )

 ) Davidson Brd. & Tenn. Claims 

Claimant/Appellant, ) Commission

 ) Claim No. 97003162

VS. )

 ) Appeal No.

DON SUNDQUIST, and the STATE ) 01A01-9806-BC-00318

OF TENNESSEE CLAIMS )

COMMISSION, )

 )

Defendants/Appellees. )

O P I N I O N

The captioned claimant has appealed from the order of the Claims Commission rejecting

the claimant’s claim for failing to state a claim for which relief can be granted.

Claimant’s “Amended Complaint” states:

16. At all times material in this cause, plaintiff was

confined on Unit 2 at Riverbend Maximum Security

Institution (RMSI) in Nashville, Tennessee. Unit 2, RMSI, is

the housing unit for those inmates sentenced to death, and is

a small isolated group of inmates separated from the general

population of inmates.

- - - -

DESCRIPTION OF INCIDENT

Date of Occurrence: On or about 2/10/96 Time: A.M./P.M.

Location: Knoxville/Nashville, TN State Agency involved:

Governor Don Sundquist

1. On or about February 10, 1996, the defendant

Don Sundquist, with malicious intent to injure plaintiff,

published, or caused to be written and published, of and

concerning plaintiff, in a certain newspaper called the

Knoxville News Sentinel, printed and published at its

Nashville Bureau, Davidson County, Tennessee, and

Knoxville, Knox County, Tennessee, as well as throughout

other areas across the State of Tennessee, and having a large

circulation in said County of Davidson, wherein plaintiff then

and there resided, certain false, malicious, and libelous

statements and the words and figures following:

2. Defendant Sundquist, in his statements of and

concerning plaintiff, published, inter alia, that plaintiff had

committed the felonious crimes of mass murder and rape, and

specifically “That [plaintiff] was the guy who committed 14

murders and two rapes on death row,” and that plaintiff

“committed the [m]ost grievous crime[s] imaginable.” A

copy of said publication is attached hereto as Exhibit A. 
-3-

No Exhibit A appears in the record before this Court. However, attached to the amended

complaint is an unidentified photostatic document reading as follows:

DISHING OUT CRITICISM

Nashville - “I’m a pussy cat,” Gov. Don Sundquist

says.

That remark came last week when a radio reporter

asked about accusations that he is “mean-spirited” in some of

his dealings in state government.

At the prompting of press secretary Beth Fortune, the

governor responded to one such accusation from some of the

inmates of death row. They accuse the governor of being

“mean spirited” because he took away their satellite dish.

Three inmates and four citizens have filed a federal

lawsuit againstthe governor and correction officials, claiming

the satellite dish was paid for by donors and that the governor

had no right to remove it.

“That was the guy who committed 14 murders and

two rapes on death row who said I’m mean spirited,”

Sundquist said. “If they think I’m mean-spirited, I would

question the origin of the statement. How can someone who’s

committed the most grievous crimes imaginable - who is

slated to be executed - expect to have television access that

most people in Tennessee don’t have”

“A satellite dish with all the Playboy channels may be

dangerous to their health.”

The dish carried HBO and Cinemax to the prisons at

Nashville’s Riverbend Maximum Security Institution. The

suit was filed by convicted murders Terry King, Rocky Lee

Coker and Michael Sample.

Sunquist also commented on a remark he made while

attending the National Governor’s Association meeting in

Washington, D.C., last week.

Sundquist called Republican presidential candidate

Steve Forbes “goofy.” At the time, the governor was wearing

a large cowboy hat that some might label goofy.

“I probably shouldn’t have said that,” Sundquist said

of the reference to Forbes. “Sometimes you’re brutally

honest, and I’m doing my best to obey the 11th

Commandment to not speak ill of another Republican.

“But sometimes you have to call them like you see

them. I’m going to try to do better.”

- - - -
-4-

17. Defendant’s article in this matter, and attached

to the original claim as Exhibit A, is entitled “Dishing Out

Criticism - Sundquist lashes death row convicts who called

him ‘mean spirited.’ ” The statements in the article were

intentionally made by defendant Sundquist, in a false and

misleading manner, in retaliation for a civil action brought

against him by three inmates names in the article.

18. The statements made by defendant were

therefore made specifically about the small group of inmates

in the article, of which plaintiff was a member, were false,

misleading, and the statements were directed at plaintiff. This

is because plaintiff’s name is explicitly stated in the article,

and plaintiff is one of the three inmates in the small group

who brought the civil action. Any reasonable person reading

the article would know that defendant’s statements were a

direct, malicious and retaliatory act by defendant against the

small group of inmates generally and against plaintiff

particularly.

The Order of the Commission states:

The main reason why this Commission finds this to be

a claim on which relief cannot be granted is that the

newspaper article in question is not libelous or injurious at all.

Any body who reads that newspaper article gets the message:

men who have been sentenced to death in a Tennessee Court

deserve to be deprived of entertainment, and when such men

use language like “mean spirited” and go to Court to get their

entertainment back then they are being ridiculous. Anybody

who reads that newspaper article recognizes that the

quotation, “That was the guy who committed 14 murders and

two rapes on death row who said I’m mean spirited,” was an

exaggeration, just a piece of mockery; anybody who reads that

newspaper sees that this statement is not statistically precise.

All human-beings --not just holders of high offices and

newspaperwomen-- use exaggeration sometimes. People may

say that men sentenced to death by Tennessee juries have

“committed the most grievous crimes imaginable,” while they

know that only people like Mao Tse-Tung and Pol Pot really

have “committed the most grievous crimes imaginable.” We

all talk like that sometimes, and talking like that is not slander

or libel. And there is a very good reason why it is not slander

or libel: because nobody who hears it takes it with nit-picking

precision. Take the case of the mother who says to her child,

“You’re just the worst little boy I’ve ever seen!” Nobody

would say to her seriously, “You’re a liar! You’ve seen two

little boys this morning who are worse than he is!” This

claimant is arguing that mockery is libel, and it is not.

- - - -

The State’s motion to dismiss is granted. The

complaint, as amended, is dismissed.
-5-

On appeal, the claimant presents the following issues;

I. Whether the Claims Commission erred in

dismissing Plaintiff’s complaint for libel and group libel, and

erroneously found that Defendant Sundquist’s statements in

the article about Plaintiff were not libelous or injurious at all?

II. Whether the Claims Commission erred in

dismissing Plaintiff’s complaint, thereby failing to consider

Plaintiff’s claims of infliction of humiliation and emotional

distress, and false light invasion of privacy?

Prior to consideration of appellant’s issues, it must be recognized that this is a claim

against the state and not a lawsuit against a newspaper or the person whose alleged oral remarks

were allegedly published by the newspaper.

T.C.A. § 9-8-112 provides in pertinent part as follows:

Final judgments against state employees. - (a) The

board of claims is authorized to pay final judgments for state

employees, as defined in § 8-42-101, for any damages,

including interest thereon, which are awarded in a final

judgment in a civil lawsuit against the employee in a court of

competent jurisdiction where it is determined by the board

that the incident on which such damages were awarded

occurred when the employee was acting in good faith within

the scope of such employee’s official duty and under apparent

lawful authority or orders.

(1) No final judgment or interest thereon shall be

paid where the employee’s conduct amounted to gross

negligence or willful, intentional or malicious conduct.

The Claim does not allege a final judgment against the originator or the publisher of the

allegedly defamatory statements. Moreover, the Claim states that the accused state employee

acted “with reckless disregard, intentional, reckless and malicious, with improper motives and

malice with intent to cause shock, mental suffering and severe emotional distress, humiliation,

anxiety pain and suffering, and depression.”

First Issue: Finding that alleged statements were not libelous or injurious.
-6-

The claim asserts that the claimant is a prisoner incarcerated on “Death Row.” This is

an admission that claimant is the subject of a final judgment of conviction of murder in the first

degree.

Under the circumstances of this case, the appellant is “libel-proof; that is, as a matter of

law would suffer no damages to his reputation by the words alleged to have been spoken.

Cardillo v. Doubleday, 2nd Cir. 1975; 518 F.2d 638; Ray v. Time, Inc., (W.D. Tenn. 1976), 452

F.Supp. 618.

The claim fails to state an actionable wrong for the reason that it states that the alleged

defamation referred to a group of three of which claimant is a member and the claim does not

allege that the claimant himself was named in the alleged defamatory statement.

The gravamen of an action for defamation is injury to the reputation of the plaintiff - not

injury to his self esteem, emotions or mental state.

Character is:

The predisposition or habit, or aggregate of ethical qualities

which belong to and distinguish an individual person; the

general result of the one’s distinguishing attributes.

- - - -

That moral predisposition or habit or aggregate of ethical

qualities, which is believed attached to a person on the

strength of the common opinion and report concerning him.

- - - -

Although “character” is often used in the sense of

“reputation”, the terms are distinguishable.

- - - -

“Character” is what a man is, and reputation is what he is

supposed to be. “Character” depends on attributes possessed,

and reputation on attributes which others believe one to

possess.

Black’s Law Dictionary, Fourth Edition, p. 294.
-7-

The words, character and reputation have been used interchangeably because where

character is relevant, it is proved by a “character witness” whose testimony must be confined to

reputation. Thus, “character” must be proven by reputation and not by acts.

In Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., et al, the appeal was from

the dismissal of the suit of an employee of Bluff City against his employer for slander by

accusing him of falsifying records. The Supreme Court dismissed the slander action as timebarred and said:

The basis of an action for defamation, whether it be

for slander or libel, is the defamation resulted in an injury to

the person’s character and reputation. 

Clearly, the words “character and reputation” were intended to mean “reputation in

respect to character, for character may be shown only by reputation.

In Little Stores v. Isenberg, the plaintiff obtained a jury verdict for damages from a false

allegation of shoplifting. This Court affirmed and said:

The “character” of an accused means his fixed

disposition or tendency, as shown by his habits, through the

manifestation of which his general reputation, good or

otherwise, is obtained. Keith v. State, 127 Tenn. 40, 152 S.W.

1029 (1913).

The claim shows on its face that the claimant is a convicted murderer worthy of death.

Therefore, neither his reputation nor his character could be impaired by the language allegedly

spoken and published.

This Court concludes that the State is not liable to a convicted murderer, for his character

is judicially declared to be evil, and, as a result, his reputation is that of a murderer.

For the foregoing reasons, the claim fails to state grounds for recovery.
-8-

Second Issue: Humiliation, emotional distress, invasion of privacy.

These elements of damage may apply if a valid right of action for defamation is shown.

However, the claim does not allege an actionable case of defamation without which there can

be no recovery for humiliation, emotional distress or invasion of privacy.

No merit is found in appellant’s second issue.

This opinion is not authority for the principle that prison inmates may not resort to the

Courts to redress libels committed against them in or out of prison. See Cardillo, above.

The judgment of the Trial Court is affirmed. Costs of this appeal are assessed against the

appellant. The cause is remanded to the Trial Court for necessary further proceedings.

AFFIRMED AND REMANDED.

_________________________________

HENRY F. TODD

PRESIDINGJUDGE,MIDDLESECTION

CONCUR

____________________________:

BEN H. CANTRELL, JUDGE

CONCUR IN RESULTS:

____________________________

WILLIAM C. KOCH, JR., JUDGE