Leonard Frazier v. Donal Campbell

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

ASSIGNED ON BRIEFS AUGUST 4, 2006

LEONARD FRAZIER v. DONAL CAMPBELL, ET AL.

Direct Appeal from the Chancery Court for Shelby County

No. 02-0393-2 Arnold B. Goldin, Chancellor

No. W2006-00031-COA-R3-CV - August 31, 2006

This appeal involves a petition for writ of certiorari filed by a state prisoner. After drugs were

discovered in the inmate’s incoming mail, he was sentenced to punitive segregation. He sought

review of his conviction in the Shelby County Chancery Court, which later dismissed his case

without prejudice for lack of prosecution. The inmate filed a notice of appeal which we have

determined was untimely and therefore a nullity. As a result, we must dismiss this appeal without

considering the issues presented by the Petitioner.

Tenn. R. App. P. 3; Appeal as of Right; Appeal Dismissed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY

M. KIRBY , J., joined.

Leonard Frazier, pro se, Tiptonville, TN

Paul G. Summers, Attorney General & Reporter; Arthur Crownover, II, Senior Counsel, Nashville,

TN, for Appellees

OPINION

I. FACTS & PROCEDURAL HISTORY

Leonard Frazier (“Frazier” or “Petitioner”) is an inmate in the custody of the Tennessee

Department of Correction at the West Tennessee State Penitentiary (“WTSP”) in Henning,

Tennessee. On June 26, 2001, Frazier received a disciplinary infraction for drug possession after

forty-nine morphine pills were found in a package which Frazier had signed to receive. The

disciplinary board conducted a hearing and convicted Frazier of the charged offense. As a result,

he was sentenced to punitive segregation. The conviction was subsequently upheld on first- and

second-level appeals, by the Prison Warden and Commissioner of the Department of Correction,

respectively. Frazier then filed a Petition for Writ of Certiorari on February 28, 2002, asking the

Shelby County Chancery Court to review the decision.

The defendants, the Tennessee Department of Correction and Donal Campbell, former

Commissioner, filed a motion to dismiss on May 9, 2002. They alleged that the Shelby County

Court lacked subject matter jurisdiction over a petition for writ of certiorari filed against the

Department of Correction, a state agency. In addition, they claimed that Frazier’s petition was barred

by the applicable statute of limitations. Frazier filed a response to the defendants’ motion on May

10, 2002. On July 12, 2002, he filed a motion for entry of default judgment, stating that the

defendants had failed to respond to his complaint within thirty days. It appears that no further action

was taken in the case until September 9, 2005, when a hearing was held upon motion of the Clerk

and Master to dismiss for lack of prosecution.1 An order was entered dismissing the case without

prejudice on that same day. Frazier filed a notice of appeal on October 31, 2005. He had signed his

notice of appeal on October 12, 2005.

II. ISSUES PRESENTED

On appeal, Frazier presented the following issues, as we perceive them, for review:

1. Whether the trial court improperly failed to transfer his petition to the appropriate

jurisdiction; and

2. Whether application of the statute of limitations for seeking a writ of certiorari would

deny him a reasonable opportunity to assert a claim in a meaningful time and manner.

However, we do not reach consideration of the issues presented because our review of the record in

this case reveals that his notice of appeal was untimely.

III. DISCUSSION

Tennessee Rule of Appellate Procedure 3(a) states that “[i]n civil actions every final

judgment entered by a trial court from which an appeal lies to the Supreme Court or Court of

Appeals is appealable as of right.” However, appeals as of right are “taken by timely filing a notice

of appeal with the clerk of the trial court.” Tenn. R. App. P. 3(e). “[T]he notice of appeal required

by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days after the date

of entry of the judgment appealed from . . . .” Tenn. R. App. P. 4(a). This thirty-day time limit for

filing a notice of appeal is mandatory and jurisdictional in civil cases. Albert v. Frye, 145 S.W.3d

526, 528 (Tenn. 2004) (citing Binkley v. Medling, 117 S.W.3d 252, 255 (Tenn. 2003)).

1

Rule 22 of the Shelby County Local Rules of Practice provides for dismissal for lack of prosecution

“whenever a cause has remained on the Rule Docket for twelve (12) months or more without steps being taken by the

Plaintiff to dispose of the cause.” The Clerk and Master is entitled to request the court for a dismissal of the cause

without prejudice.

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Filing a notice of appeal is an essential step necessary to a valid appeal as of right, which is

not waivable. Tenn. R. App. P. 2 advisory commission comment. An appellate court is not

authorized to extend the time limit for filing a notice of appeal. Briley v. Chapman, 182 S.W.3d

884, 889 (Tenn. Ct. App. 2005) (citing Arfken & Assoc. v. Simpson Bridge Co., 85 S.W.3d 789, 791

(Tenn. Ct. App. 2002); Tenn. R. Civ. P. 2; Tenn. R. Civ. P. 21(b)). In civil cases, a party’s failure

to timely file a notice of appeal deprives the appellate court of jurisdiction to hear the appeal. Briley,

182 S.W.3d at 889 (citing McGaugh v. Galbreath, 996 S.W.2d 186, 189 (Tenn. Ct. App. 1998);

American Steinwinter Investor Group v. American Steinwinter, Inc., 964 S.W.2d 569, 571 (Tenn.

Ct. App. 1997). As a result, the appellate court must dismiss the appeal if the notice was not timely

filed. Id.

As previously noted, on September 9, 2005, the chancellor entered an order dismissing

Frazier’s case for lack of prosecution. Frazier’s notice of appeal was filed on October 31, 2005.

However, since Frazier is a pro se litigant incarcerated in a correctional facility, we do not look to

the date on which his notice of appeal was filed. Instead, “filing shall be timely if the papers were

delivered to the appropriate individual at the correctional facility within the time fixed for filing.”

Tenn. R. App. P. 20(g). Still, Frazier did not sign his notice of appeal until October 12, 2005, after

the thirty-day time limit for filing an appeal had expired. Therefore, he could not have delivered the

papers to the appropriate official for mailing in a timely manner. When timeliness of filing becomes

an issue, the burden is on the pro se litigant to establish compliance with the Rule. Tenn. R. App.

P. 20(g). Frazier did not mention the timeliness of his notice of appeal in his brief, and did not

attempt to establish compliance after the Defendants raised the issue in their brief. Because his

notice of appeal was not timely delivered for mailing, within thirty days of the final judgment, this

Court is without jurisdiction to hear the appeal. Frazier’s untimely notice of appeal is a nullity, and

therefore, the trial court’s order has become final.

While we realize the “legal naivete” of a pro se litigant such as Frazier, we must not allow

him an unfair advantage because he represents himself. Irvin v. City of Clarksville, 767 S.W.2d 649,

651-52 (Tenn. Ct. App. 1989). Pro se litigants who invoke the complex and technical procedures

of the courts assume a very heavy burden. Id. at 652, (citing Gray v. Stillman White Co., 522 A.2d

737, 741 (R.I. 1987)). While they are entitled to fair and equal treatment, they must follow the same

procedures as a represented party. Id. (citations omitted).

We find it appropriate to include the following observation of the Eastern Section of this

Court, when faced with this same situation in Grigsby v. Univ. of Tenn. Med. Ctr., No.

E2005-01099-COA-R3-CV, 2006 WL 408053, at *2-3 (Tenn. Ct. App. Feb. 22, 2006). The Court

was forced to dismiss the appeal of a pro se litigant because his notice of appeal was not timely filed,

and stated:

We do not favor dismissing pro se litigants’ appeals on what might

appear to be technicalities. However, while parties who choose to

represent themselves are entitled to fair and equal treatment, they are

not entitled to shift the burden of litigating their case to the courts, see

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Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C. Cir.1983), or

to be excused from complying with the same substantive and

procedural requirements that other represented parties must adhere to.

See Irvin v. City of Clarksville, 767 S .W.2d 649, 652 (Tenn. Ct. App.

1988). Accordingly, they must act within the time periods provided

by the applicable statutes and rules in order to have their cases

considered. See Williams-Guice v. Board of Educ., 45 F.3d 161, 164

(7th Cir.1995); Kelley v. Secretary, United States Dep’t of Labor, 812

F.2d 1378, 1380 (Fed.Cir.1987).

Id., (citing Goad v. Pasipanodya, No. 01A01-9509-CV-00426, 1997 WL 749462, at *2 (Tenn. Ct.

App. Dec. 5, 1997)). Unfortunately Mr. Frazier’s appeal was not timely filed, and therefore we may

not consider the issues he has presented for our review.

V. CONCLUSION

For the aforementioned reasons, we dismiss this appeal and costs are assessed against the

Appellant, Leonard Frazier, for which execution may issue if necessary.

___________________________________

ALAN E. HIGHERS, JUDGE

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