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

ecember 11,

2001
JERRY L. LUSTER v. B. CAMP BELL SMOOT Appeal from the Circuit Court for Coffee County No. 30,127 Lee Russell, Judge, By Interchange

No. M2000-02191-COA-R3-CV - Filed May 2, 2002

A prisoner filed a

civil rig hts intimidati on suit against a public defender who uttered a racial slur during a recess in the plaintiff’s criminal trial. The trial court granted summary judgment to the public defender

. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded

B EN H. C ANTRELL , P.J., M.S., delivered th e opinion of the co

urt, in which W ILLI AM C. K OCH , J R

. and W ILLI

AM B. C AIN , JJ., joined. Jerry L. Luster, Whiteville, Tennessee, Pro Se. H. Thomas Parsons,

Manchester, Te

nnessee, for the

appellee, B. Ca

mpbell Smoot.

OPINION
I. Jerry Luster was on trial in a criminal matter. Public Defender B. Campbell Smoot was defen ding him, and Mr. Luster was not happy with the quality of the defense Mr. Smoot wa s providing. According to Mr . Luster’s af

fidavit, the Public

Defender failed to take

proper measures before the criminal trial

to deal with “fals

e reports” and “tamper ing” and “other issues.” Mr. Luster also complained about Mr. Smoot’s “lack of interest,” “lack of time,” and “unwillingness of ethical obligation.” He also stated that he and Mr. Smoot disagreed about how the criminal tr

ial was “split up”, presumably referring to a severa nce issue. Further, du ring a conference conducted during a recess in the trial on November 17, 1998, he and Mr. Smoot argued, and according to the affidavit, “a prejud ice remar k was made in which-2-

Campbell Smoot let slip a remark niger that made me feel hurt . .

. .” Signed but unsw orn statements by two inmate

s confirming Mr.

Luster’s ac

count of that incid

ent were include

d in the affidavit.
The trial resulted in a

convictio n and a sentence of imprisonment for Mr. Luster. On November

19, 1999, he filed a hand-written complaint naming Mr. Smoot as defendant. The cover page of the complaint stated that its subject was “Civil Complaint RE. Of ficial misconduct

, violation of lawyer oath, Violation of Civil Rights pursuant to 42 U.S.C. Sec 1983, Civil rights intimidation.” The body of the complaint consisted simply of the above-mentioned af fidavit, and a paragraph entitled “Relief,” which asked for $300,000 in dam

ages, and that M

r. Smoot be made to

answer in his off ici al a nd i ndi vid ual capa cit y.
Mr. Smoot filed a Motion f or Summary Judg

ment, which arg

ued that he was en

titled to immunity u nde r Tenn. Code. Ann. § 8-14-209, which

immunizes public def

enders from laws

uits arising out of the exercise of their official duties. In his accompanying af fidavit, he alleged

that “at all times in his representation of the plaintiff, it was in hi s official c apacity as the elected Public Defender for the Fourteenth Judicial District of Tennessee.”
Mr. Luster filed an answer which stated that M

r. Smoot should not be

allowed to

hide behind the protection of Tenn. Code Ann. § 8-14-209, that he was not acting under color of law, and alleged (fal sel y) that Mr. Smoot was appointed through the District Attorney ’s office (in

fact, he was elected by the people of the Fourteenth District), that he was not a Public Official and therefore not entitled to immunity, and that he was under the protection of the District Attorney ’s office. Judge John Rollins recused himself from this case, a

nd it was transfer

red by inter

change to Judge Lee Russell. After a heari ng, the judge issued a memorandum opinion, followed by an order granting Mr. Smoot’s summary judgment motion. The court observed that the issues relatin

g to trial strategy and to the conduct of Mr. Luster’s defense could be properly raised in a post-convicti on proceeding arising out of the criminal case, and that the immunity statute precludes a civil suit for such grievanc

es.
As for Mr. Smoot’s unf

ortunate remark, the trial court

observed that this presented a closer issue, and statedthat “[m]aking racial slurs is not part of the duties of a public defender, and making racial slurs is never appropriate.” The court noted, however, that the mid-trial conference between the parties during which the public defender “let slip” the racial slur arose from the public defender’s official duties, and that he had enga ged in the confe

rence in his

official capacity. The court further noted that, “[t]he immunity statute does no t deal w ith the propriety or reasonableness or effectiveness

of an action, bu t only with the capacity of the actor ( whether acting officially or otherwise) an

d with the occasion for the activity (whether arising from the execution of the actor’s official duties or arising from some private activity).”-3-

The court therefor

e concluded that

the immunity st

atute applied and that the public defender was entitled to summary judgment on this claim as well. Mr. Luster appea led.
II.
The appellant filed three briefs in this court, two of whic h were handwritt

en and nearly undecipherable. None of the brief s took issue with the t

rial judg e’s dismissal of the complaints relating to the public defender’s performance at the appellant’s trial. All of them, however, contained vehement objections to the dismissal of the claims related to the racial slur.
Like the trial court, we also believe that racial slurs are never appro priate, and we can sympat hize with the feeling of outrage Mr. Luster has expressed. Ther e is a di fference, however, between conduct that is

actionable, and conduct

that is merely objectionable. Even if we put aside the possibility

of immunity for Mr. Smoot under Tenn. Code. Ann. § 8-14-109, it does not appear to us that Mr. Luster has described conduct that meets the requirements for maintaining a c ause of action under either federal or state law.

In Pendleton v. Mills

, ___S.W.3d ___ (2001), this court cited numerous cases in the federal courts that have uniformly held that verbal threats and insults alone, even including racial slurs, do notprovide grounds for a federal civil rights action. Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986), Shabazz v. Cole, 69 F. Supp.2d 177, 201 (D. Mass 1999). Rather, “to be actionable under 42 U.S.C. §1983, the verbal abuse must be accompanied by a wanton act of cruelty wh

ich, if it occurred, would be considered

unusually brutal.” ___ S.W.3d at ___. See also Burton v. Livingston , 791 F.2d 97 (8th Cir. 1986). The record before us does not indicate that any such ac ts were committed by the defendant. Turning to Mr. Luster’s claim under state law, he argues on appeal that Mr. Smoot’s utterance was a violation of Tenn. Code. Ann. § 39-17-309, which defines the crime of Civil Rights Intimidation a

s follows: (b) A person commits the offense of intimidating others from exercising civil rights who: (1) Injures or threatens to in jure or coerce

s another person

withthe intent to unlawfully

intimidate another from the free exercise or enjoy ment of any

right or privilege secured by the constitution or laws of the state of Tennessee ; (2) Injures or thr

eatens to injure or coerc

es another perso

n with the intent to unlawfully

i ntimidat e another bec ause that ot her exercis ed any right or pr ivilege secured by the constitution or laws of the United States or the constitution or laws of the state of Tennessee; ( 3) Dam ages , de str oys o r def aces any re al o r per son al p rop ert y o f anothe r pe rson with the intent to unl awfully inti

midate another f

rom the free exer

cis e o r enjoyment

of any right or privilege secured by the constitution or laws of the state of Tennessee; or-4- (4) Damages, destroys or defaces any real or personal propert

y of anot her person with the intentto unlawfully intimidate another because that other exercised any right or privilege secured by the constitution or laws of the United States or the constitution or laws of the state of Tennessee.
Section (e) of that statute states that “The penalties provided in this section for intimidating others from exercising civil rights do not preclude victims from seeking any other remedies, criminal or civil, otherwise available under law.”
The app ell ant als o ref ers us t o Te nn. Cod e. A nn. § 4- 21- 701 , wh ich read s in its ent ire ty: (a) There is hereby c

reated a civil c

ause of action fo

r malicious haras sment. (b) A person may

be liable to the vic

tim of malicious har

assment for both special and general da

mages, including

, but not li mited to , damages for emotional distress, reason

able attorney

's fees and cos

ts, and punitive dam

ages.
In one of the few reported cases dealing with either statute, the T ennessee Su

preme Court sp ecifica lly

found that the elements of a civil claim of malicious harassment under the Tennessee Human Rights Act

are derived from the criminal offense of civil rights intimidation. Washington v. Robertson County

, 29 S.W.3d 466 (Tenn. 2000).
The appellee argues that the dictionary definition of harassment implies a ser ies of a cts, rathe r than a single act, and therefore that the statute cannot be used to pursue a civil action aga

inst a party who has only comm

itted a single ac

t of civil rights

intimidation. We do not agree. We believe that
even a single act of intimidation, if sufficiently threatening or injurious can meet the de finition found in Tenn. Code. Ann. § 39-17-309(b) and form the basis of a civil claim under that statute. However, it does not appear to us that the utterance of a s in gle word on one occasion, however hateful that word may sound in th

e ears of its liste

ners, is sufficient to supp

ort a claim for ma

licious harassmen

t. Further, Tenn. Code. Ann. § 3 9-17-309(b) cle arly speci fies th at its sanc tions are only directed against intentional conduct. Of course, Mr. Luster’s own complaint that the publ ic defend er “let slip” the racial s

lur clearly

indicates negli

gent rather tha

n intentional condu

ct.
III.
The order of the tria

l court is affirme

d. Remand this cause to the Circuit Court of Coffee County for further pro

ceedings consi

stent with this opinion. Tax the cost s on appeal to the a

ppellant, Jerry Luster.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.