### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs D

ecember 14, 2000
RONALD L. DAVIS v. HERSHELL D. KOGER
Appeal from the Chancery Court for Maury County No. 98-773 Stella L. Hargrove, Judge

No. M2000-01598-COA-R3-CV - Filed February 6, 2001

This appeal involves a dispute between a convicted felon a

nd the lawyer app

ointed to represe

nt him in his efforts to reo

pen his post-conviction c

hallenge to his con

viction. After the

efforts to set aside his conviction prove

d unsuccessful,

the prisoner sued thelawyer in the Chancery Court for Maury Countyarguing that his civil rights had been violated because his lawyer had con spi red with the prosecutor

and the trial judge to prevent him from obtaining the post-conviction relief to which he b elieved he was entitled. The lawyer denied these allegations, and the prisoner moved for a summary judgment. On June 15, 2000, the trial court summarily dismissed the prisoner’s complaint
on two grounds. First, the court concluded that it did not have subject matter jurisdiction to consider claims regarding the denial of the prisoner’s request for post-judgment relief. Second, the trial court concluded

that the prisoner had failed to state a claim upon which relief can be granted. We affirm the dismissal of the

prisoner’s compl

aint. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W ILLIAM C. K OCH , J R ., J., delivered the opinion of the court, in which WILLIAM B. C AIN an d P ATRICIA J. C OTTRELL , JJ., joined. Ronald L. Davis, Henning, Tennessee, Pro Se. Hershell D. Koger, Pulaski, Tennessee, Pro Se.
OPINION

Late one evening in May

1982, Ronald

Davis and Tommy Lee King robbed the owner and patrons of the Third Street Inn in Columbia. They ordered the owner and the patrons to lie on the floor, and then Mr. King cold-bloodedly shot and killed the tavern owner. Mr. Davis and Mr. King escaped in the slain man’s car but were later apprehended and prosecuted. Mr. King was convicted of firs t degree murder and was sentenced to death. In November 1982, a Maury County jury convictedMr. Davis of aiding and abetting murder in the second degree,

and he was senten

ced to1 Davis v. State , No. 83-22-III (Tenn. Crim. App. Sept. 11, 198 4), perm. a pp. den ied conc urring in re sults only

(Tenn . Jan. 7, 198 5).

2 Davis v. State , No. 85-251-II I, 1986 WL 5469 (Tenn. Cri m. App. May 13, 1986) (No Tenn. R. App. P. 11 application filed) (affirm ing den ial of the first pe tition for po st-convic tion relief); Davis v. State , No. 89-77-III, 1989 WL 71039 (Tenn. Crim. A pp. June 29, 198 9), perm. app. denied (Tenn. Sept.

25, 1989) (aff

irming denial

of the second petition for post-conviction relief).

3 Davis v. Morgan , No. M 1999- 00965 -CCA -R3-PC , 1 999 WL 1073 702 (Tenn. Crim. Ap p. Nov. 29, 1999), perm. app. denied

(Tenn. M ay 15, 2 000).

4 Mr. Da vis’s Ten n. Code Ann. § 41-21- 805 (19 97) affida vit reveals that si nce 1997, he has fil

ed thirt y-four differe nt lawsuits in state court alleg ing every thing from racia l discri mination to conspiracy t o “denial of

copying services.” He also serves as an “inmate legal adv isor” assisting other prisoners in preparing and filing their lawsuits. Davis v. Holland

, 31 S.W.3d 574, 574 (Tenn. Ct. App. 2000) (stati ng that Mr. Davis works as “an inm ate legal advisor” for prisoners at the West Tennessee High Security Facility).

5 When Mr. Davis committ ed his cri me in 1982, aidi

ng and abetti

ng second degree murder was punishable as
a Class X felony by a determinate life sentence or any num ber of years not less than t en. The sentence was imposed by the jury. Stat

e v. Will iams , 575 S.W.2d 948, 949 (Tenn. 1978). The Tennessee Criminal Sentencing Reform Act of 1982 which replaced jury sentencing wit h judge sentencing did not apply t o crimes committed pri or to Jul y 1, 1982. Tenn. Code A nn. § 40-35-112 (a) (repealed 1989). The Tennessee Court of Criminal Appeals has rej ected an ille gal sentenci ng argument similar

to theone M r. Davis m akes in this c ase. Taylor v. Morgan , M1999-01416- CCA-R3-PC, 2000 WL 1278373, at *3 (Tenn. Cr im. App. Aug. 31, 2000) (Tenn. R. App. P.

11 applicat

ion fil ed Nov. 2, 2000). The Tennessee Court of Crim inal Appeals ha s also dismisse d Mr. Davis’s ha

beas corpus pe

titi on based on this theory

. Davis v. Morgan , supra, no te 3.
-2- serve ninety-nine years. Mr. Davis’s conviction was later upheld

on direct appeal 1 and in two postconviction proceedings 2 and one habeas corpus proceeding. 3 Mr. Davis has become quite familiar with the judicial system during his

incarceration. 4 In mid-1996, he filed a motion in the Circuit Court for Mau ry Co unty to reopen his post-conviction challenge to his conviction. In August 1997, after Mr. Davis and his first appointed lawyer hadan irreconcilable

disagreement, thecircuit court appointed Hershell D. Koger, a lawyer from Pulas

ki, to represent Mr.

Davis.

Mr. Davis quickly began trying to dictate Mr. Koger’ s trial strategy. In addition to the grounds for post-convict

ion relief that Mr

. Koger intended t

o raise on his

behalf, Mr. Davi

s insisted that Mr. Koger ar

gue that his

sentence was “void illegal” because it had been imposed by the jury rather than the trial judge. To placate Mr. Davis, Mr. Koger included this ground in his motion, even though it had little legal me rit. 5 The most significant argum ent M r. Koger was advancing on Mr. Davis’s behalf, in accordance with Tenn. Code Ann. § 40-30-217(a)(1) (1997), was ba s ed on the TennesseeSupreme Court’s opinion in State v. Trusty , 919 S.W.2d 305 (Tenn. 1996), overruled in part , State v. Doming , 6 S.W.3d 472, 475 (Tenn. 1999).6 Mr. Davis had previously fil ed another sui

t regardi ng his conspi

racy theory.

In that a

ction, he had asserted thatthe trial cour t, the prose cuting atto rney, an d the two lawyers a ppointe d to assist him w ith his first petition for postconvicti on relief ha d been partners in a conspir acy to pre vent him from o btaining p ost-conv iction relief. T his suit proved to be with out me rit. Davis v. Wea therford , No. 01 A01-9 903-C V-001 59, 199 9 WL 96964 8 (Tenn . Ct. App. O ct. 26, 1999) perm. appeal denied (Tenn. Feb. 14, 200 0). As w e read M r. Davis’s c ompla int in this case, h e eviden tly considers

Mr. Koger to be a member of t he same conspir

acy. -3- In March 1998, the c

ircuit court hea

rd Mr. Davis’s moti

on to reopen his pe

tition for postconviction relief. During the hearing, the judge challen ged Mr. Koger to se

t forth clearly

which of Mr. Davis’s multiple claims for relief he was advancing as meritorious . Mr. Koger candidly responded

that he believed that the State v. Tru sty argument was his st

rongest argument

. With regard to the illegal sentencing issue that Mr. Davis had insisted on raising, Mr. Koger informed the circuit court tha

t [O]ur final [issue] was that the defendant didn’t receive a sentencing hearing and quite candidly I looked up the old law on tha t. This offense was alleged

to have occurred on May 27th, I believe, in 1982, andthe statut e tha t took away jury sentencing and started judge sentencing, andthe comments applies only to offenses committed on
or after July 1, 1982. So candidly I don’t thin k we’ve got a vali

d claim on that and I know of no thing of it being a retroactive application.

In March 1998, after

considering all of

Mr. Davis’s argu

ments, the circuit

court denied Mr. Davis’s motion to re-open his post-conviction petition. The court noted:

All of those issues that you’ve just itemized have either been adjudicated

on the direct appeal in the first PCR or was waived, except possibly those Trusty

issues and this

court has concluded that one, that’s not a newly established right and tha t even if it was Mr. Davis wouldn’t

be able to fit his case under that holding because it’s distin gui shable

in light of the indictment, the jury instructions, and the verdict in the Davis case.

In December 1998 , Mr. Davisfiled this suit in the C hancery Court fo

r Maury County alleging that his civil rights have been violated during the March 1998 proceedings because Mr. Koger had “intentionally with malice denied to make the court aware of [Mr. Davis’s] void illegal
se ntence.” He also asserted that Mr. Koger “intentionally conspired with the assistan t attorne y general to have [Mr. Davi s] further conf

ined [in prison] knowing that a grave error existed.” 6 In his
answer to Mr. Davis’s complaint, Mr. Koger denied playing a role in any conspiracy to prevent Mr. Davis from obtaining post-conviction relief and described the eth ical constraints p reventing him from advancing Mr. Davis’s “illegal sentence” argument. He also denied that he was “acting under-4-

color of law” while he was representing Mr. Davis and asserted that Mr. Davis’s complaint failed to state a claim upon which relief can be granted.
Thereafter, Mr. Davis filed a motion for sum mar y judgment. In a supporting affidavit, he argued that “attorney Ko

ger did not r

epresent me a dequately due to my redress to Government against state officials [

sic ] which he then became part of a c onspiracy to help keep me confined longer with a void illegal sentence [and] [t]hat attorney Koger also conspired with state

officials by poorly drafting of my motion to reopen [my] post conviction [petition] intentionally with malice.” On June 15, 2000, the trial court dismissed Mr. Davis’s lawsuit on essentially two grounds. First, the trial court conclude d that it did not have subject matter jurisdiction to consider Mr. Davis’s substantive claims regarding the denialof his petition for post-conviction relief. Second, the trial court concluded that Mr. Davis’s complaint failed to state a claim under 42 U.S.C.A. §§ 1983, 1985(3) (West 1994) or any other cause of action. Mr. Davis has appealed from that decision.

I. S TANDARD OF R EVIEW
Our role whenreviewing summar y judgments is

well-settled. Summary judgments enjoy no presumption of

correctness on appeal. City of Tullahoma v. B edford County , 938 S.W.2d 408, 412 (Tenn. 199 7); McClung v. Delta Sq uare Ltd. Partnershi

p , 937 S.W.2d 891, 894 (Tenn. 1996). Accordingly, reviewing courts must make a fresh determination concerning w hether t he requirements

of Tenn. R. Civ. P. 56 have beensatisfied. Staples v. CBL & Assoc s. , 15 S.W.3d 83, 88 (Tenn. 20 00); Hunter v. Brown , 955 S.W.2d 49, 50-5 1 (Tenn. 1997); Mason v. Seaton , 942 S.W.2d 470, 472 (Tenn. 1997). Summary judgments areappropriate only when there are no genuine factual disputes

with regard to the

claim or defense embodied in the motionand when the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 5 6.04; Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997); Carvell v. Bottoms , 900 S.W.2d 23, 26 (T enn. 1995); Hart v. Tourte , 10 S.W.3d 263, 268 (Tenn. Ct. App. 1999).

Courts reviewing summar y judgments must view

the evidence in th

e light most favora

ble to the nonmoving party an

d must also draw all

reasonable inferences in the nonmoving party’s favor. Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn. 1997); Mike v. Po Group, Inc. , 937 S.W.2d 790, 792 (Tenn. 1996). Thus, a

summary ju dgment should be gr anted only when the

undisputed facts reasonably

support one concl

usion -- that the mov

ing party is entitled to a judgment as a matter of law. McCall v. Wilder , 913 S.W.2d 150, 153 (Te nn. 1995); Carvell

v. Bottoms , 900 S.W.2d at 26. A party may obtain a summary judgment by demonstrating that thenonmoving party will be unab le to prove an essential elem ent of its c ase, Byrd v. Hall, 847 S.W.2d 208, 212-13 (Tenn. 1993), because the inability to prov

e an essentia

l element of

a claim necessa

rily renders all o

ther facts immaterial. Alexander v. Memphis Individual PracticeAss’n , 870 S.W.2d 278, 280 (Tenn. 1993); Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom , 911 S.W.2d 727, 729 (Tenn. Ct. App. 1995).-5- II. T HE D ENIAL OF M R . D AVIS ’ S P ETITION TO R EOPEN HIS C LAIM

FOR P OST -C ONVICTION R ELIEF
We turn first to the trial court’s conclusion that it was not the proper forum to entertain Mr. Davis’s claims to the extent they involved the denial of his petition for post-conviction relief. We neednot tarry long because Tenn. Code Ann. §§ 40-30-204(a), - 217(a) ( 1997) clearly require pe titions for post-conviction relief to be filed in the trial court where the petitioner was origina ll y convicted. Filing in the proper court is a “jurisdictional pr erequis ite” for any claim seeking postconviction relief. Oliphant v. State , 806 S.W.2d 215, 217 ( Tenn. Crim. App. 1991). Mr. Davis was convictedin the Circuit Court f or Maury County, ma

king it t he place for any post-conviction challeng es. Accordingly, the trial court correctly concluded that the Chancery Court for Maur y Countycould not

entertain Mr. Da

vis’s claims

seeking post-conviction relief directly or indirectly.

III. M R . D AVIS ’ S C IVIL R IGHTS C LAIM
We turn next

to Mr. Davis’s civil rights claim. To state a claim under 42 U.S.C.A. § 1983,
a plaintiff must allege facts showing (1) that he or she has been deprived of someidentifiable right secured by the Constitution and laws of the United States and (2) that the person who deprived him
orherof these rights wa s acting under co

lor of state law. M

r. Davis’s claim a

gainst Mr. Koge r cannot satisfy the secon d requirement because court appointed counsel are not acting under color of state law when they are

representing a defendant in a state criminal proceeding. Polk County v. Dodson , 454 U.S. 312, 324-25 , 102 S. Ct. 445, 453 (1 981); Driver v. Howard County Pub. Defender’s Office , 575 N.E.2d 1001, 1005 (Ind. Ct. App. 1991). Because Mr. Koger was serving
as Mr. Davis’s court-appointed counsel with

regard to reopening the post-conviction proceeding, he was not acting under color of state law.

Private persons may, however, be found to be a cting under color of state law if they are engage d in a conspi racy with state of ficials to deprive

another person o

f his or her fede

ral rights. Tower v. Glover , 467 U.S. 914, 920, 10 4 S. Ct. 2820, 2824 (19 84); Humphreys v. N ager , 962 F. Supp. 34 7, 352 (E.D. N.Y. 1997). To avo id tying up the resou

rces of the part

ies and the courts

in wild goose chases, claims based on con spiracies to violate civil rights must be pled with factual specificity. Sanchez v. City of Santa Ana , 936 F.2d 1027, 1039 ( 9th Cir. 1990); Dolin ex rel. N.D.
v. West , 22 F. Supp. 2d 1343, 1350 (M.D. Fla. 1998). Instead of bald allegations that a conspiracy existed, the plaintiff must p lead enough oper

ative facts to give

riseto a reasonable inference that
a conspiracy existed, Lynch v. Cannatella , 810 F. 2 d 1363, 1370 (5th Cir . 1987); Arsenaux v. Roberts , 726 F.2d 1022, 1024 (5th Cir. 1982). Thus, civil rights plaintiffs relying on a conspiracy theory must provide some details of the time, place, and alleged effect of the conspiracy. Fobbs v. Holy Cross Health Sys. Corp. , 29 F.3d 1439 , 1449 (9th Cir. 1994); Humphreys v. Nager , 962 F. Supp. at 352. Complaints lacking the required specificity are subject to dismissal. Swoboda v.-6-

Dubach , 992 F.2d 286, 290 (10 th Cir. 1993); Lynch v. Cannatella , 810 F.2d at 1369-70 ; Martin v. Delaware Law Sch. , 625 F. Supp. 1288, 1297 (D.De. 1985).

These rules developed over the years by the federal courts

dovetail with

our general rules of pleading. Tenn. R. Civ. P. 8.01( 1) requires plai ntiffs to provide p

lainstatements in their

complaints demonstrating that they are ent itled to the relief

they seek. While

pleaders are no

t required to

recite in minute detail all the

facts giving rise

to their claims, the

y must include in the

ir complaint some direct factual allegations on every material point that is relevant to their causes of action. Donaldson v. Donaldson , 557 S.W.2d 60, 61-62 (Tenn. 1977); Jasper Engine & Transmission Exch. v. Mills , 911 S.W.2d 719, 720 (Tenn. Ct. App. 1995).

Mr. Davis is untrained in the law and is representing himself in this proceeding. Accordingly, no matter how frequently he l itigates on behalf of himself and othe

rs, we must hold his pleadings to less stringent standards than pleadings drafted by lawyers. Winchester v. Little , 996 S.W.2d 818, 824 (Tenn. Ct. A pp. 1998); Fox v. Tennessee Bd. of Paroles , No. 01A01-9506

- CH00263, 1995 WL 681135, at *3 (Tenn. Ct. App. Nov. 17, 1995) (No Tenn. R. App. P. 11 application filed). H owev er, we must be mindful of the boundary between fairness to a pro se prisoner and unfairness

to the State of Tennessee. Thus, we cannot excuse Mr. Davis from complying with the
samesubstantive and procedural rules that represen ted par ties are expected to observe, Kaylor v. Bradley , 912 S.W.2d 728, 733 n.4 (Tenn. Ct. Ap p. 1995), and we cannot create claims from pleadings where none exist. Rampy v. ICI Acrylics, Inc. , 8 98 S.W. 2d 196, 198 (Tenn. Ct. App. 1994); Brown v. City of Manchester , 722 S.W.2d 394, 397 (Tenn. Ct. App. 1986).

Mr. Davis’s claim rests on nothing more than his erroneous belief that he was entitled to be sentenced under the Tennessee Criminal Sentencing Reform Act of 1982 and his d

issatisfaction wit

h the empha sis his two appointed lawyers placed on his meritless argument that he was somehow deprivedof a sentencing hearing. Nomatter how liberally weview Mr. Davis’s complaint, we have been unable to discove

r sufficiently

precise factual allegations to give rise to a reasonable inference that Mr. Koger

conspired with a judge of the Circuit Court of Maury County and the Office of the District Attorney Gener al for the Twenty-Second Ju dicial District to d

eprive Mr. Davis

of his federally-protected

civil rights. Nowhe

re does he show ho

w Mr. Koger’s just

ifie d la ck of enthusiasm

for his illegal sentence claim arose from any sort of collusion with the prosecution or the judge presiding at the hearing . A ccordingly, we concur with the trial court’s conclusion that Mr. Davis’s complaint fails to state a claim for relief under 42 U.S.C.A. §§ 1983, 1985(3) or under any other theory.

IV.

We affirm the judgment dismissing Mr. Davis’s “Complaint for Violation of Civil Rights” andremand the case to the trial court for whatever further proceedings may be required. We tax the costs of this appeal to Ronald L. Davis for which execution, if necessary, may issue.-7- ____________________________ WILLIAM C. KOCH, JR., JUDGE