Jarvis Q. Williams v. Cherry Lindamood, Warden

10/31/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 1, 2018

JARVIS Q. WILLIAMS V. CHERRY LINDAMOOD, WARDEN, ET AL.

Appeal from the Chancery Court for Wayne County

No. CT-002105-16 Robert L. Jones, Chancellor

No. M2017-02407-COA-R3-CV

An inmate at the South Central Correctional Facility in Clifton, Tennessee, filed this

action to challenge the confiscation and destruction of his property and the decision of the

prison grievance board concerning said property. The respondents denied the allegations.

The trial court dismissed the petition as to all respondents. We affirm.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.

CLEMENT, JR., P.J., M.S. and BRANDON O. GIBSON, J., joined.

Jarvis Q. Williams, Clinton, Tennessee, pro se.

James I. Pentecost and J. Austin Stokes, Jackson, Tennessee, for the appellees, Warden

Cherry Lindamood, Ronald White, Scotty Peeler, Shane McClain, and Rhonda Riley.

MEMORANDUM OPINION1

Jarvis Q. Williams (“Petitioner”) submitted an inmate grievance form on June 10,

2016, concerning the confiscation of his personal property on May 17. Petitioner alleged

that his fan and a pair of CL-20 headphones were taken from him during the intake

process following his transfer from Trousdale Turner Correctional Center. On June 13,

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Rule 10 of the Rules of the Court of Appeals of Tennessee provides as follows:

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opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and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.

Petitioner received a response from the grievance committee in which he was advised

that his grievance was inappropriate because it had not been filed within seven calendar

days of the occurrence giving rise to the grievance.

Petitioner submitted a second inmate grievance form on October 12, 2016,

concerning the destruction of his Sony CDR radio during a search of his housing cell. He

requested permission “to replace [his] personal property with a radio of the same model

or of equal value and size.” On October 19, Petitioner received a supervisor response

advising him that he was allotted 30 days in which to mail his radio out and that he would

not be allowed to replace his radio with the same model. A hearing before the grievance

committee was held on October 23, during which it was discovered that the radio at issue

was “grandfathered in and [was] no longer allowed to be purchased.” Following the

hearing, the grievance committee affirmed the supervisor’s response. Thereafter,

Petitioner initiated correspondence on January 5 and February 3, 2017, in which he

requested a written response with findings and explanations concerning the destruction of

his property. He also requested a criminal investigation by forwarding an affidavit of

complaint to the District Attorney General on March 9 and a letter requesting criminal

action on April 21. Petitioner has received no response.

On June 8, 2017, Petitioner filed this civil action to recover his personal property

with an attached affidavit of inability to pay costs. Warden Cherry Lindamood, Ronald

White, Scotty Peeler, Shane McClain, and Rhonda Riley (collectively “Respondents”)

were named as respondents. Respondents filed a motion to dismiss, citing Petitioner’s

failure to file a separate affidavit listing every lawsuit previously filed pursuant to

Tennessee Code Annotated section 41-21-805(a)(1), which provides as follows:

(a) Any inmate who files a claim with an affidavit of inability to pay

costs shall file a separate affidavit with the following information:

(1) A complete list of every lawsuit or claim previously filed by the

inmate, without regard to whether the inmate was incarcerated at the time

any claim or action was filed[.]

Petitioner then filed an affidavit compliant with Section 41-21-805(a)(1) and requested

acceptance of his filing to cure the procedural defect. The trial court denied the motion to

dismiss and directed the parties to provide the rules and regulations concerning the taking

of Petitioner’s property in advance of the hearing.

The case proceeded to a hearing, after which the trial court dismissed the action,

holding that Petitioner failed to exhaust his administrative remedies and had not filed a

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timely appeal and that the evidence adequately supported the conclusions made in the

administrative proceedings. This timely appeal followed.

The sole and dispositive issue on appeal is whether the court properly dismissed

the action. Civil litigation initiated by state prisoners with an attached affidavit of

inability to pay costs is governed by Tennessee Code Annotated Section 41-21-801, et.

seq. As pertinent to this appeal, Section 41-21-806 provides as follows:

(a) An inmate who files a claim that is subject to review by the

grievance committee established by the department shall file with the court

an affidavit stating the date that the grievance was filed and the date the

final decision was received by the inmate with a copy of the final decision

from the grievance committee.

(b) The court shall dismiss the claim if the inmate fails to file the claim

before the thirty-first day after the date the inmate receives the final

decision from the grievance committee.

Here, the Petitioner attested that he filed his initial claims with the grievance committee

on June 10 and October 12, 2016, and that he received the final decisions from the

committee on June 13 and November 4, 2016. This action was filed on June 8, 2017.

Petitioner argues on appeal in his reply to Respondent’s responsive brief that

dismissal pursuant to Section 41-21-806 was erroneous because his claim was not subject

to review by the grievance committee, thereby establishing the inapplicability of Section

41-21-801, et. seq.2 Petitioner did not assert this argument at the trial court level or in his

initial brief to this court. To the contrary, Petitioner cited Section 41-21-801 in his claim

for writ of possession and evaded dismissal of the action by his late-filed compliance

with the procedural requirements contained therein. A party may not offer a new issue

2

In support of his argument, Petitioner cites the Tennessee Department of Correction Policy #501.01,

which defines a grievance as:

A written complaint concerning the substance or application of a written or unwritten

policy or practice, any single behavior or action toward an inmate by staff or other

inmates, or any condition or incident within the Department or institution which

personally affects the inmate complainant.

Policy #501.01 provides that claims for monetary compensation for injuries or property loss are “non-

grievable” and may not be considered by the grievance committee. The record reflects that Petitioner

sought the return of his fan and headphones and that he requested the replacement of his radio with the

same or similar model. He did not request monetary compensation from the committee. Further, Section

41-21-801, et. seq. is applicable to “a claim brought by an inmate in . . . a trial level court of record in

which an affidavit of inability to pay costs is filed with the claim by the inmate.” Such is the case here.

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for the first time on appeal. See Lane v. Becker, 334 S.W.3d 756, 764 (Tenn. Ct. App.

2010) (citing Campbell Cnty. Bd. of Educ. v. Brownlee-Kesterson, Inc., 677 S.W.2d 457,

466-67 (Tenn. Ct. App. 1984)). “The jurisprudential restriction against permitting parties

to raise issues on appeal that were not first raised in the trial court is premised on the

doctrine of waiver.” Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (citations

omitted). This issue is waived.

Petitioner alternatively argues that Respondents may not rely upon the statute of

limitations provided in Section 41-21-806 because they failed to raise the issue at the trial

court level. The record reflects that Respondents asserted any applicable statute of

limitations as a defense in the answer to the complaint. The court dismissed the claim, in

part, due to the untimely filing of the action.

Petitioner next argues that his claim concerning the confiscation and destruction of

his radio is not subject to the statute of limitations because he appealed the grievance

committee’s decision to the Commissioner but never received a response. The Tennessee

Department of Correction (“TDOC”) Policy #501.01 provides that an inmate may appeal

a grievance committee’s decision within 5 calendar days to the Commissioner, who is

then required to issue a response within 25 working days of the date the appeal is

received. TDOC policy #501.01 further provides as follows:

If a time limit expires at any stage of the process without a required

response, the grievant may move the grievance to the next stage of the

process, unless the inmate agrees in writing to a fixed extension of the time

limit for response.

Petitioner does not argue and did not include any filing indicating that he agreed to a

fixed extension of the time limit. Here, he received the committee’s response on

November 4, 2016, but did not file the action until June 8, 2017, well beyond the 31-day

statute of limitations and any additional time that may be allotted to account for the filing

of the Commissioner’s response to an administrative appeal.

With all of the above considerations in mind, we must affirm the court’s dismissal

of the action pursuant to Section 41-21-806(b). This case is remanded for such further

proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Jarvis Q.

Williams.

_________________________________

JOHN W. McCLARTY, JUDGE

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