Bruce Rishton v. Jim Morrow

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 15, 2013

BRUCE RISHTON v. JIM MORROW, ET AL.

Appeal from the Circuit Court for Bledsoe County

No. 2011CV4948 Buddy Perry, Judge

No. E2012-01046-COA-R3-CV-FILED-OCTOBER 22, 2013

Bruce Rishton (“Rishton”), formerly an inmate in the custody of the Tennessee Department

of Correction (“TDOC”), filed a petition for writ of certiorari in the Circuit Court for Bledsoe

County (“the Trial Court”) against officials Warden Jim Morrow, Deputy Warden Andrew

Lewis, and, Associate Warden of Operations C. Owens (collectively “the Respondents”).

Rishton alleged that the warden acted illegally and arbitrarily in denying him his musical

instrument. The Respondents filed a motion to dismiss. The Trial Court dismissed the case,

holding, inter alia, that the warden’s decision was administrative in nature and not subject

to review by writ of certiorari. Rishton appeals. We hold that, as Rishton has since been

released from TDOC custody, this case has become moot on appeal. We affirm the Trial

Court.

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

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which JOHN W. M CC LARTY

and T HOMAS R. F RIERSON, II, JJ. joined.

Bruce Rishton, pro se appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; William Young, Solicitor General;

and, Lee Pope, Assistant Attorney General, for the appellees, Jim Morrow, Warden; Andrew

Lewis, Deputy Warden; and, C. Owens, Associate Warden of Operations.

MEMORANDUM OPINION 1

Background

Rishton was an inmate in the custody of TDOC. In May 2011, Rishton pled

guilty to the disciplinary offense of a positive drug screen. Subsequently, the Respondents

no longer allowed Rishton to keep his guitar. In July 2011, Rishton filed a petition for writ

of certiorari against the Respondents in the Trial Court. Rishton alleged, among other things,

that the warden acted illegally and arbitrarily in denying him his guitar. In September 2011,

Rishton filed a motion for default judgment against the Respondents. Also at that time, the

Respondents filed a motion to dismiss, arguing that the warden’s decision to restrict an

inmate’s property was administrative in nature and not subject to review by writ of certiorari.

In October 2011, the Trial Court granted the Respondents’ motion to dismiss

and denied Rishton’s motion for default judgment. The Trial Court held that the warden’s

discretionary decision to restrict inmate property on the basis of a disciplinary infraction was

administrative in nature and not subject to review by writ of certiorari. Additionally, the

Trial Court held that Rishton’s request for injunctive relief was moot. In January 2012,

Rishton filed a Rule 60 motion seeking relief from the October judgment on the basis that

he did not timely receive a copy of the order of dismissal and was precluded from timely

filing a notice of appeal. The Trial Court granted Rishton’s Rule 60 motion and vacated its

October 2011 judgment. In May 2012, the Trial Court again dismissed Rishton’s case.

Rishton timely appealed to this Court.

Discussion

Though not stated exactly as such, Rishton raises three issues on appeal: 1)

whether the Trial Court erred in denying his motion for default judgment; 2) whether the

Trial Court erred in dismissing his petition for writ of certiorari; and, 3) whether the

Respondents violated his due process rights by confiscating his personal property without

prior notification and authorization. We, however, believe the dispositive issue on appeal

is one raised by the Respondents: whether Rishton’s appeal is moot because he no longer is

in TDOC custody.

1

Rule 10 of the Rules of the Court of Appeals provides: “This Court, with the concurrence of all

judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum

opinion when a formal opinion would have no precedential value. When a case is decided by memorandum

opinion it shall be designated ‘MEMORANDUM OPINION,’ shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.”

-2-

In April 2013, the Respondents filed a motion to dismiss in this Court. In their

accompanying memorandum of law, the Respondents argue that this appeal should be

dismissed for mootness. In support of their argument, the Respondents assert that Rishton

is no longer in the custody of TDOC and that the relief sought by Rishton concerning access

to his guitar no longer has any practical effect.2 In May 2013, Rishton filed a response in

opposition to the Respondents’ motion to dismiss. In his response, Rishton made two

arguments. First, Rishton contended that the fault for the delay in the case lies with the

Respondents and their “dilatory practices.” According to Rishton, to dismiss his case would

serve to encourage TDOC officials to delay action until an inmate is released and essentially

run out the clock, so to speak. Second, Rishton contends that there is, in fact, practical relief

still available to him–namely, restitution for the cost of bringing this suit.

Our Supreme Court recently has discussed justiciability and mootness:

This Court must first consider questions pertaining to justiciability

before proceeding to the merits of any remaining claims. See UT Med. Grp.,

Inc. v. Vogt, 235 S.W.3d 110, 119 (Tenn. 2007) (noting that justiciability is a

threshold inquiry). The role of our courts is limited to deciding issues that

qualify as justiciable, meaning issues that place some real interest in dispute,

Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 838 (Tenn. 2008), and are

not merely “theoretical or abstract,” Norma Faye Pyles Lynch Family Purpose

LLC v. Putnam Cnty., 301 S.W.3d 196, 203 (Tenn. 2009). A justiciable issue

is one that gives rise to “a genuine, existing controversy requiring the

adjudication of presently existing rights.” Vogt, 235 S.W.3d at 119.

***

To be justiciable, an issue must be cognizable not only at the inception

of the litigation but also throughout its pendency. Norma Faye Pyles Lynch

Family Purpose LLC, 301 S.W.3d at 203–04. An issue becomes moot if an

event occurring after the commencement of the case extinguishes the legal

controversy attached to the issue, Lufkin v. Bd. of Prof'l Responsibility, 336

S.W.3d 223, 226 (Tenn. 2011), or otherwise prevents the prevailing party from

receiving meaningful relief in the event of a favorable judgment, see Knott v.

Stewart Cnty., 207 S.W.2d 337, 338 (Tenn. 1948); Cnty. of Shelby v.

2

In support of this representation, the Respondents attached an affidavit of one Melinda Toney, a

Sentence Analyst 1 with TDOC. Ms. Toney stated that Rishton was released from custody upon the

expiration of his sentence in December of 2012. In his response to the motion to dismiss, Rishton does not

dispute that he no longer is in TDOC custody.

-3-

McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App. 1996). This Court has

recognized a limited number of exceptional circumstances that make it

appropriate to address the merits of an issue notwithstanding its ostensible

mootness: (1) when the issue is of great public importance or affects the

administration of justice; (2) when the challenged conduct is capable of

repetition and evades judicial review; (3) when the primary dispute is moot but

collateral consequences persist; and (4) when a litigant has voluntarily ceased

the challenged conduct. Lufkin, 336 S.W.3d at 226 n.5 (citing Norma Faye

Pyles Lynch Family Purpose LLC, 301 S.W.3d at 204).

City of Memphis v. Hargett, No. M2012-02141-SC-R11-CV, - - - S.W.3d - - - -, 2013 WL

5655807, at **4-5 (Tenn. Oct. 17, 2013).

Writ of certiorari cases involve reviewing the actions of lower boards and

tribunals. See generally McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990).

The action challenged here is the warden’s decision to restrict Rishton’s ability to have a

musical instrument. Rishton, however, no longer is in TDOC custody. This being so, we fail

to see what relief we could render to Rishton. Additionally, our Supreme Court has stated:

“We have repeatedly held that where only the taxing of the costs is involved and the major

question has become moot that we will not consider the question.” State ex rel. Lewis v.

State, 347 S.W.2d 47, 48 (Tenn. 1961). We hold that this case has become moot on appeal.

None of the exceptional circumstances that would lead us to address an ostensibly moot case

are present here.

“The ordinary practice in disposing of a case that has become moot on appeal

is to vacate the judgment and remand the case with directions that it be dismissed.” McIntyre

v. Traughber, 884 S.W.2d 134, 138 (Tenn. Ct. App. 1994). However, when a trial court

already has dismissed a case that is moot on appeal, we simply may affirm that dismissal.

See Pylant v. Haslam, No. M2011-02341-COA-R3-CV, 2012 WL 3984648, at *4 (Tenn. Ct.

App. Sept. 11, 2012), no appl. perm. appeal filed. As Rishton appeals from a dismissal of

his case, and, as we hold that this case is moot on appeal, we affirm the dismissal by the Trial

Court.

-4-

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

Appellant, Bruce Rishton, and his surety, if any.

_________________________________

D. MICHAEL SWINEY, JUDGE

-5-