William W. Goad, Jr. v. Alphonse Pasipanodya, M.D., Meharry Hubbard Hospital, Frank Thomas, M.D. and Larry Woodlee

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

FILED

WILLIAM W. GOAD, JR., )

December 5, 1997

)

Plaintiff/Appellant, ) Cecil W. Crowson

) Appellate Court Clerk

) Davidson Circuit

VS. ) No. 94C-295

)

)

ALPHONSE PASIPANODYA, M.D., ) Appeal No.

MEHARRY HUBBARD HOSPITAL, ) 01A01-9509-CV-00426

FRANK THOMAS, M.D., and )

LARRY WOODLEE, )

)

Defendants/Appellees. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE HAMILTON V. GAYDEN, JUDGE

For the Plaintiff/Appellant: For Meharry Hubbard Hospital:

William W. Goad, Jr., Thomas A. Wiseman, III

Pro Se John T. Reese

Nashville, Tennessee

For Larry Woodlee:

Cyrus L. Booker

Carla G. Fox

Nashville, Tennessee

APPEAL DISMISSED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This appeal involves a prisoner’s medical malpractice suit stemming from the

repair of an epigastric hernia. The prisoner filed a pro se complaint against the

surgeon who had performed the surgery, the hospital where the surgery was

performed, and a physician and physician’s assistant employed by the prison. The

Circuit Court for Davidson County first granted the motion for summary judgment

filed by the physician’s assistant and later granted the summary judgment motion

filed by the hospital. The prisoner appealed from the order summarily dismissing his

claims against the hospital. We have determined that the prisoner’s appeal must be

dismissed because he has not complied with the mandatory requirements of Tenn. R.

App. P. 3(f) and 4(a).

I.

William M. Goad, Jr. is incarcerated at the Riverbend Maximum Security

Institution following convictions in Davidson County for armed robbery and assault

with intent to commit first degree murder1 and in Sumner County for first degree

murder and armed robbery.2 In August 1989, Dr. Alphonse T. Pasipanodya

performed surgery on Mr. Goad at Meharry Hubbard Hospital to repair an epigastric

hernia. Dr. Pasipanodya closed Mr. Goad’s fascia with prolene sutures and then

closed the incision with surgical staples. The prolene sutures were permanent and

non-absorbable, and Dr. Pasipanodya intended them to remain in Mr. Goad’s

abdomen in accordance with accepted medical practice.

In October 1993, Mr. Goad noticed the sutures immediately beneath his skin

and began experiencing discomfort in the area of his hernia operation. Dr. Frank

Thomas examined him in the prison infirmary in November 1993 and ordered several

medical tests. Larry Woodlee, a physician’s assistant working at the prison,

examined Mr. Goad again in early January 1994 and referred him to another

1

See State v. Goad, 692 S.W.2d 32 (Tenn. Crim. App. 1985).

2

See State v. Goad, 707 S.W.2d 846 (Tenn. 1986) (conditionally affirming Mr. Goad’s first

degree murder conviction and death sentence); State v. Goad, No. 85-25-I, 1986 WL 12370 (Tenn.

Oct. 27, 1986) (affirming Mr. Goad’s conviction and death sentence); Goad v. State, 938 S.W.2d 363

(Tenn. 1996) (affirming Mr. Goad’s conviction for first degree murder and remanding the case for

a new sentencing hearing).

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physician for additional medical treatment. Several weeks later, Mr. Goad filed a pro

se complaint in the Chancery Court for Davidson County against Drs. Pasipanodya

and Thomas, Mr. Woodlee, and Meharry Hubbard Hospital alleging that they had

failed to exercise due care and did not provide him with proper medical treatment.

The chancery court later transferred the case to the Circuit Court for Davidson

County.

Mr. Woodlee moved for a summary judgment in February 1995. The trial

court entered an order on March 17, 1995, dismissing Mr. Goad’s claims against Mr.

Woodlee and included in the order a Tenn. R. Civ. P. 54.02 certification that the order

would be deemed final. Thereafter, Meharry Hubbard Hospital moved for a summary

judgment. On June 19, 1995, the trial court entered an order granting Meharry

Hubbard Hospital’s motion and certifying that this order would also be deemed to be

final under Tenn. R. Civ. P. 54.02. Mr. Goad filed a notice of appeal with the trial

court on July 24, 1995, stating that he desired to appeal from the trial court’s June 19,

1995 order.

II.

This appeal involves the fate of Mr. Goad’s claims against Mr. Woodlee and

Meharry Hubbard Hospital.3 Even though Mr. Goad takes issue with the summary

dismissal of these claims, we cannot reach the merits of his arguments because he has

not complied with the mandatory requirements of Tenn. R. App. P. 3(f) and 4(a).

The Tennessee Rules of Appellate Procedure govern appeals to this court.

Tenn. R. App. P. 3(f) requires appellants to designate the “judgment from which

relief is sought,” and Tenn. R. App. P. 4(a) requires that notices of appeal must 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. 3(f) limits the scope of

appellate review to the judgment or order designated by the notice; see Hall v. Hall,

772 S.W.2d 432, 435-36 (Tenn. Ct. App. 1989); while, Tenn. R. App. P. 4(a)

establishes a mandatory, jurisdictional time limit for filing a notice of appeal that

cannot be waived or extended. See Jefferson v. Pneumo Servs. Corp., 699 S.W.2d

181, 184 (Tenn. Ct. App. 1985); John Barb, Inc. v. Underwriters at Lloyds of London,

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Mr. Goad’s claims against Drs. Pasipanodya and Thomas are not before us on this appeal.

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653 S.W.2d 422, 424 (Tenn. Ct. App. 1983). Incarcerated pro se litigants are not

entitled to relief from Tenn. R. App. P. 4(a)’s mandatory requirements. See Goodwin

v. Hendersonville Police Dep’t, App. No. 01A01-9509-CH-00423, 1997 WL 576340,

at *3 (Tenn. Ct. App. Sept. 17, 1997) (Tenn. R. App. P. 11 application pending).

Mr. Goad has not properly perfected an appeal from the March 17, 1995 order

summarily dismissing his claims against Mr. Woodlee for two reasons. First, his

notice of appeal identifies only the trial court’s June 19, 1995 order and does not

mention the March 17, 1995 order. Thus, Tenn. R. App. P. 3(f) limits his appeal to

the June 19, 1995 order. Second, since the trial court designated the March 17, 1995

order as final in accordance with Tenn. R. Civ. P. 54.02, Mr. Goad should have filed

his notice of appeal within thirty days after the entry of the March 17, 1995 order.

His July 24, 1995 notice of appeal, to the extent it could apply to the order dismissing

Mr. Goad’s claims against Mr. Woodlee, was filed over two months too late.

Mr. Goad’s appeal from the summary dismissal of his claims against Meharry

Hubbard Hospital must meet the same fate. Even though he specifically designated

the June 19, 1995 judgment as the one he desired to appeal from, he did not file his

notice of appeal with the clerk of the trial court until July 24, 1995. Since the trial

court clerk received Mr. Goad’s notice of appeal from the June 19, 1995 judgment

five days after the expiration of Tenn. R. App. P. 4(a)’s filing deadline, the notice of

appeal was filed too late.

III.

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 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).

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Mr. Goad has not filed a timely notice of appeal from the trial court’s orders

dismissing his claims against Mr. Woodlee or Meharry Hubbard Hospital and has not

stated that he is appealing from the trial court’s order dismissing his claims against

Mr. Woodlee. Accordingly, we dismiss his appeal and tax the costs of the appeal

against him for which execution, if necessary, may issue.

_____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_________________________________

SAMUEL L. LEWIS, JUDGE

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