1 Rule 10(Court of Appeals). Memorandum Opinion . -- (b) T he Court, with concurrence of all judges pa rticipating in the case, may affirm, reverse or modify the actions of the trial court by memora ndum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINI ON,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.

2 The corporation is not a party to this action.

1 

# FILED October 1, 199 7 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) ISSAC LYDELL

HERRON , ) Lauderdale Circuit Court ) No. 4720 Plaintiff

/Appella nt. ) ) C.A. No. 02A01-9706-CV-00117 VS. ) ) HON. JOSEPH H. WALKER, JUDGE ELIZABETH T. RICE, et al , ) ) AFFI RMED AND REMANDED ) Defend ants/Appe

llees. ) OPINI ON FIL ED: ) Issac Lydell Herron , Pro Se John Knox Wa

lkup , Attorney Gene

ral & Reporter Abigail Turner , Assistant Attorney Gene ral for Defendants/Appellees Elizabeth T. Rice and Jimmy Harrison

______________________________________________________________________________ MEMORAN

DUM OP

INION 1

______________________________________________________________________________ FARMER, J.

IssacLydell Herron appeals from the trial court’s order dismissing his petition for a writ of mandamus. The complaint alleges that Mr. Herron is the president and incorporator of the Church of God at Cold Creek, Inc., a Tennessee corporation. Jimmy Ha rrison is the ward

en of Cold Creek Correctional Facility

(C CCF) and Elizabeth T. Rice is the District Attorney Gene ral of the 25thJudicial District. Although not specifically stated in the c omplaint, it is appa ren t from the exhibit s to the com plaint th at Mr. Herron i s incarcerated at CCCF.

The complai nt alleges that defendant Rice ref used Herron’s 2 request

to crimina

lly prosecu te defendant Harrison for failure to compl y with §§ 48-51-201; 48-53-101 a nd 48-53-2

102(18)(19) of the Tennessee Code Annotat ed. Apparently the corporation over which Herron presides sought a

nd was re

fused pe rmission f

rom Warde

n Harris on to oper

atecer tain business ventures within the penal institution. Although not specified, it would appear from exhibits to the complaint that one of these ventures included the operation of a popc orn popper.

The st atutes under which Mr. Herron requested G eneral Rice prosecute Warden Harrison are not c

riminal sta

tutes. T.C.A. § 48-51-2 01 contains definitions per taining to nonprof

it corpora tions. Section 48-53-101 pertains to the purpose of corporations and § 48-53-102(18)-(19) allows a corporationto carr y on business a

nd do all things necessary

or convenient, not inconsistent with law, to furthe

r its acti vities and

affair s.

Even if Herron soug ht to require General Rice to prosecute Warde n Harrison, for violation of

criminal statutes, prosecutors have a g reat de al of disc

retion in d

etermining whet

her to pursue criminal charges. See United S tates v. Davis , 15 F.3d 526 (6th Cir. 1994). Mandamus agains ta public official will lie only to require performance of a ministerial nondiscretionary act of the official. State ex rel. Cole v. Francisco , 643 S.W.2d 105 (Tenn. 1982). The writ is use d to compel an official to perform an act which he has a legal duty

to perform and will not lie to control of ficial judgment or discretion. State ex rel. Byram v. City of Brentwood , 833 S .W.2d 500, 50 5 (Tenn. App. 1991) perm. app. denied (1992).

The complaint also a llege s that Harrison utilized Department of Correction administrative policies and procedures to deprive plaintiff of the statutor y po wers granted the corporation. It wa s clear

ly not the legislative intent in passing statutes governing corporations, and vesting them with certain powers, to allow an inmate to create a corporation and thus circumvent policies a nd proce dures of

the Depa rtment.

The complaint further seeks to recov er dama ges, pr esumably from both

defenda nts, for withholding the ri ghts guaranteed to him under the a foreme ntioned c orporat

e st atu tes. State officers and employee s are absolutely immune f rom liability for acts or omissions within the scope of their office or employ

ment, except for willful, malicious or criminal acts or for acts or omissions3

done for personal gain. T.C.A. § 9-8-307(h). There are no allegations of willful, malicious or criminal acts or

omissions or for acts or omissions done for personal gain. State employ ee includes
one who is employed in the service of and whose compensation is pay able by the state. T .C.A. § 8- 42-101(3)(A). The complaint further allege s that def

endant Ric e, by

her fai lure to criminally pr osecute Wa rden Ha

rrison, violated Mr . Herro n’s rights under the Firs t and Fou

rteenth Amendments to the Constitution of the United States and Article I § 3 and 8 and Artic le XI § 8 of the Constitution of the State of Tennessee. We, like the trial court, fail to see how the failure of the District At to rn ey G en er al to ac ce de to Mr . H er ro n’ s r eq ue st to cr im in al ly p rosecut e Wa rden Harrison constitute s a violati on of any of the af orement ioned con stitutiona

l guara ntees.

We affirm the trial court’s order of dismissal and tax the costs of this appeal to Issac Lyde ll He rr on , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LI LL ARD, J. (Conc

urs)