Petition for Writ of Certiorari — Asata D. Lowe, Petitioner v. Mike Parris, et al.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 1,2019

ASATA D LOWE v. MIKE PARRIS ET AL.

FILED

Appeal from the Circuit Court for Blount County

No. L-19878 David Reed Duggan, Judge

JUN 25 2019

Clerk of the Appellate Courts

Rec'd by

___________

No. E2018-01753-COA-R3-CV

This case involves a prisoner’s appeal from the trial court’s dismissal of his complaint,

wherein he raised numerous claims relating back to his seizure, arrest, prosecution, and

conviction, all of which occurred from 1998 to 2000. The trial court dismissed all of the

prisoner’s claims on numerous grounds, including that they were time-barred by various

statutes of limitations and that many of the defendants were entitled to sovereign

immunity. Concluding that because certain defendants are entitled to sovereign

immunity and that all of the prisoner’s claims are either time-barred or do not comply

with the Tennessee Rules of Civil Procedure, we affirm.

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

Remanded

Arnold B. Goldin, J., delivered the opinion of the court, in which D. Michael Swiney,

C.J., and Frank G. Clement, Jr., P J., M.S., joined.

Asata Dia Lowe, Wartburg, TN, Pro se.

Herbert H. Slattery, III, Attorney General and Reporter; Thomas J. Aumann, Assistant

Attorney General, for the appellees, Mike Parris and Tennessee Department of

Correction.

Craig Strand, Knoxville Tennessee and Craig L. Garrett, Maryville, Tennessee, for the

appellee, Blount County Sheriffs Office.

Benjamin K. Lauderback, Knoxville, Tennessee for the appellees, Alcoa Police

Department, Ernest C. Kemper, III, Dale Boring, and Lowell H. Ridings.

Herbert H. Slattery, III, Attorney General and Reporter; Laura Miller, Assistant Attorney

General, for the appellees, Edward Bailey, Kirk Andrews, and the Blount County District

Attorney’s Office.

OPINION

Background and Procedural History

On July 12, 2000, a Blount County, Tennessee jury convicted Asata Lowe

(“Plaintiff’) on two counts of first-degree murder and one count of especially aggravated

robbery. Plaintiffs conviction was upheld on direct appeal to the Tennessee Court of

Criminal Appeals. See State v. Asata Lowe, No. E2000-01591-CCA-R3-CD, 2002 WL

31051631 (Tenn. Crim. App. Sept. 16, 2002). The conviction was again upheld on postconviction appeal. See Lowe v. State, No. E2006-02028-CCA-MR3-PC, 2008 WL

631169 (Tenn. Crim. App. Aug. 25, 2008).

On April 10, 2Q18, Plaintiff, proceeding pro se, filed a “Complaint for

Extraordinary Process” (the “Complaint”) in the Blount County Chancery Court.

Therein, Plaintiff named numerous defendants2 and raised numerous tort and

constitutional claims, as well as a host of procedural deficiencies, arising from his arrest,

conviction, and imprisonment.3 In total, Plaintiff sought $5,000,000,000.00 in economic

damages, $5,000,000,000.00 in non-economic damages, and $15,000,000,000.00 in

punitive damages. After Plaintiff filed the Complaint, the case was transferred from the

Blount County Chancery Court to the Blount County Circuit Court (the “trial court”) via

an interchange order entered on April 12, 2018. After the transfer to the circuit court,

nearly all of the Defendants filed motions to dismiss,4 asserting that all of Plaintiffs

claims should fail: (1) pursuant to the doctrine of sovereign immunity; (2) because his

underlying criminal convictions had not been invalidated through direct appeal, post­

conviction, or habeas proceedings; (3) because his claims were time-barred by various

1 As a pro se litigant, Plaintiff is entitled to fair and equal treatment by the courts. Hessmer v.

Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003). Nevertheless, we must “be mindful of the

boundary between fairness to a pro se litigant and unfairness to the pro se litigant’s adversary” and not

excuse the pro se litigant from complying with the same substantive and procedural rules that represented

parties must observe. Id.

2 In total, Plaintiff named 12 Defendants: (1) Mike Parris, Warden of the Morgan County

Correction Complex; (2) the Tennessee Department of Corrections; (3) Dale Boring and (4) Ernest

Kemper, two officers with the Alcoa Police Department; (5) Captain Lowell Ridings, an Alcoa Police

Detective; (6) the Alcoa Police Department; (7) Edward Bailey and (8) Kirk Andrews, the two

prosecuting attorneys in the 2000 case against Plaintiff; (9) F.D. Gibson, Plaintiffs own counsel in the

2000 case; (10) Brian Whitman, a co-defendant in the 2000 case; and the (11) Sheriffs and (12) District

Attorney’s Offices of Blount County (together, “Defendants”)

3 Such claims raised by Plaintiff included—but were not limited to—due process violations,

human rights violations, human trafficking violations, and an unlawful restraint of trade and

discrimination violation.

4 Defendants Gibson and Whitman did not file motions to dismiss. However, for reasons not

pertinent to this appeal, the trial court dismissed all claims against Defendants Gibson and Whitman in its

final judgment.

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statutes of limitations; and (4) because his claims violated Tennessee Rule of Civil

Procedure 8.01.

A hearing on Defendants’ respective motions was held on August 13, 2018. On

August 23, 2018, the trial court entered an order dismissing Plaintiffs lawsuit in its

entirety, and in which it made the following findings of fact and conclusions of law:

As a matter of law, this Court finds it lacks subject matter jurisdiction over

the Plaintiffs claims raised against the Blount County District Attorney’s

Office, Kirk Andrews, Edward Bailey, Mike Parris and the Tennessee

Department of Corrections based on sovereign immunity grounds. In the

alternative, the Court finds Defendants Bailey and Andrews retain absolute

prosecutorial immunity. Additionally, this Court finds that to the extent the

Plaintiff attacks the validity of his criminal convictions, such a claim or

claims are barred pursuant to the well-established law set out in Wilkinson

v. Dotson, 544 U.S. 74, 78 (2005). Further, this Court finds as a matter of

law that all of the Plaintiffs causes of action raised against each Defendant

are time-barred based upon the applicable statute of limitations period that

apply to the claims raised by the Plaintiff. This Court finds the Plaintiffs

argument that he only learned of the causes of action he is now raising in

April of 2017 are unavailing and disingenuous. The Court bases this

determination on the multiple previous pleadings filed by the Plaintiff in

other matters with this Court over the years, which reveal the Plaintiff had

knowledge of facts he now alleges support his purported claims for close to

two decades.

However, subsequent to the August 13 hearing but prior to the entry of the August 23

order, Plaintiff filed numerous other pleadings and motions, including, but not limited to,

a motion for summary judgment on subject matter jurisdiction, a statement of facts and

an affidavit in support of the motion, and a motion for discovery on the motion.

Additionally, since the entry of the August 23 order, Plaintiff continued to file additional

pleadings and motions, including, but not limited to, a motion to alter or amend and/or

relief from judgment and an affidavit in support of the motion, a motion for transcripts of

the August 13, 2018 hearing, a new complaint for declaratory judgment, a motion to

schedule a pretrial and discovery conference, and a motion for appointment of counsel.

Addressing such pleadings and motions, the trial court entered another order on

September 5, 2018, stating the following:

Again, Plaintiff continues to file motions and pleadings in this case

despite the fact that the Court has ruled against Plaintiff, having granted the

Defendants’] various motions to dismiss. While it is proper for Plaintiff to

file a motion to alter or amend, otherwise Plaintiff has chosen to continue to

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file documents in this case, which has been dismissed, rather than to file a

notice of appeal.

In Plaintiffs many years of filing suits, post-criminal convictions

proceedings, and other motions or pleadings,'he continues to seek to litigate

the same issues that he has raised over and over again, all of which have

been dismissed, and all of which dismissals have been affirmed on appeal.

Ultimately, the trial court concluded that “Plaintiffs filings are far past the point of being

frivolous and abusive” and dismissed all of Plaintiffs pleadings and motions listed

above.5 Plaintiff timely appealed to this Court on September 26, 2018.

Issues Presented

As we perceive it, Plaintiff raises the following issues for our review:

1. Whether the trial court erred in dismissing all of Plaintiffs claims against

Defendants.

2. Whether the trial court erred in dismissing Plaintiffs motion to supplement

the record.

3. Whether the trial court erred in depriving Plaintiff his right to a jury trial

and the right to be heard.

Standard of Review

A motion to dismiss based on Tennessee Rule of Civil Procedure

12.02(6) “challenges only the legal sufficiency of the complaint, not the strength of the

plaintiffs proof or evidence.” Webb v. Nashville Area Habitat for Humanity, Inc., 346

S.W.3d 422, 426 (Tenn. 2011). As a result, the resolution of such a motion is determined

by an examination of the pleadings alone. Id. When considering a motion to dismiss, the

court “must construe the complaint liberally, presuming all factual allegations to be true

and giving the plaintiff the benefit of all reasonable inferences.” Id. The court should

grant the motion “only when it appears that the plaintiff can prove no set of facts in

support of the claim that would entitle the plaintiff to relief.” Id. On appeal, we review

the trial court’s resolution of a motion to dismiss de novo with no presumption of

correctness. Phillips v. Montgomery Cty., 442 S.W.3d 233, 237 (Tenn. 2014).

5 The trial court also ordered that any new complaint, petition, motion, request, application, or

other document filed by Plaintiff within the next twenty-four months in any of the state trial courts of the

5th Judicial District be submitted to the Special Master to determine whether such filing alleges the same

allegations that Plaintiff has previously litigated and whether such filing is frivolous or duplicative. The

Special Master will then provide a written report, recommending whether the filing should be dismissed.

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Discussion

A. The Trial Court Properly Dismissed All of Plaintiffs Claims

With regard to Plaintiffs claims against the Tennessee Department of Corrections

and Mike Parris (the “TDOC Defendants”), the Alcoa Police Department, Lowell

Ridings, Dale Boring, and Ernest Kemper (the “Alcoa Defendants”), the Blount County

Sheriffs Department, the Blount County District Attorney’s Office, Edward Bailey, and

Kirk Andrews (the “Blount County Defendants”), and Messrs. Gibson and Whitman,6 we

conclude that the trial court properly dismissed such claims.

As to Plaintiffs specific claims against the Alcoa Defendants, the Blount County

Defendants, and Messrs. Gibson and Whitman, from what this Court has surmised, all of

the factual allegations related to such defendants are based upon Plaintiffs seizure, arrest,

prosecution, and ultimate conviction, all of which occurred from 1998 to 2000.

Significantly, Plaintiff does not dispute that the factual basis for these claims arose

between 1998 and 2000; rather, Plaintiff argues that he was “unlearned in the law” and

“unaware of the significance of the relevant facts that supported such rights” until April

2017. However, it is well-established that a lack of understanding of the law does not

extend the statute of limitations. Richardson v. State, No. 01C01-9503-CC-00079, 1995

WL 384757, at * 1-2 (Term. Crim. App. June 29, 1995) (“[AJppellanf s claim that his lack

of understanding of the law should excuse his tardiness is . . . without merit.”). As the

trial court correctly found, it is clear from Plaintiffs previous complaints and petitions

that he has been well aware. of the facts supporting his claims against many of the

Defendants for a number of years.

Plaintiffs state law tort claims are time-barred by the statute of limitations in the

Tennessee Governmental Tort Liability Act. Tennessee Code Annotated section 29-20305 sets out the applicable statute of limitations: “The action must be commenced within

twelve months after the cause of action arises.” Tenn. Code Ann. § 29-20-305(b).

Similarly, Plaintiffs Tennessee Human Rights Act (“THRA”) claims and federal claims

brought pursuant to 42 U.S.C. section 1983 are barred by their respective one-year statute

of limitations. As to Plaintiffs THRA claims, Tennessee Code Annotated section 4-21311 provides that “[a] civil cause of action under this section shall be filed . .. within one

(1) year after the alleged discriminatory practice ceases[.]” Tenn. Code Ann. § 4-21311(d). As to Plaintiffs section 1983 claims, the Supreme Court has held that such

claims are best characterized as tort actions for the recovery of damages for personal

injury actions from the state where the action was brought. Cooey v. Strickland, 479 F.3d

412, 416 (6th Cir. 2007) (citing Wilson v. Garcia, 471 U.S. 261, 275-76 (1985)). For

6 On December 12, 2018, this Court was notified that Mr. Gibson had passed away the previous

month. Moreover, it appears that neither Mr. Gibson nor Mr. Whitman was ever properly served with

process.

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such claims in Tennessee, a one-year statute of limitations is set out in Tennessee Code

Annotated section 28-3-104:

(a)(1) Except as provided in subdivision (a)(2), the following actions shall

be commenced within one (1) year after the cause of action accrued:

(A) Actions for libel, injuries to the person, false imprisonment, malicious

prosecution, or breach of marriage promise;

(B) Civil actions for compensatory or punitive damages, or both, brought

under the federal civil rights statutes; and

(C) Actions for statutory penalties.

Term. Code Ann. § 28-3-104(a)(1). Here, Plaintiff filed his Complaint on April 10, 2018.

As such, Plaintiff failed to raise his claims against the Alcoa Defendants, the Blount

County Defendants, and Messrs. Gibson and Whitman until nearly twenty years after his

causes of action arose. Accordingly, all of Plaintiffs claims against the Alcoa

Defendants, the Blount County Defendants, and Messrs. Gibson and Whitman are timebarred.

As to Plaintiffs claims against the TDOC Defendants, it is difficult to discern

from the Complaint—and from his brief on appeal—when such claims occurred.

Plaintiffs claims against the TDOC Defendants are incomprehensible, and he has

provided no dates or time frames regarding any alleged misconduct committed by them.

To the extent any of Plaintiff s claims against the TDOC Defendants relate to events that

occurred prior to April 10, 2017, we conclude that the trial court correctly ruled that those

claims are time-barred. To the extent Plaintiffs claims against the TDOC Defendants

can be construed so as to relate to events that occurred after April 10, 2017, we conclude

that the trial court’s dismissal of such claims was nevertheless proper because it found

that it lacked subject matter jurisdiction based on sovereign immunity grounds. The

doqtrine of sovereign immunity provides that the State of Tennessee and its employees in

their official capacities are immune from suit except as the State consents to be sued.

State ex rel. Moncier v. Jones,-No. M2012-00778-COA-R3-CV, 2013 WL 2492652, at *3

(Term. Ct. App. June 6, 2013) (citing Stewart v. State, 33 S.W.3d 785, 790 (Term. 2000)).

The Department of Corrections is an agency of the State of Tennessee and is thus entitled

to sovereign immunity. Likewise, to the extent Plaintiff is suing Mike Parris in his

official capacity as the warden of Morgan County Correctional Complex, Mike Parris is

also entitled to sovereign immunity.7 See Cox v. State, 399 S.W.2d 776, 778 (Term.

7 While it is impossible to discern whether Plaintiff is doing so, to the extent Plaintiff is suing

Mike Parris in his individual capacity, such claims nevertheless fail for violating Tennessee Rule of Civil

Procedure 8.01, which provides that “a pleading which sets forth a claim for relief. . . shall contain (1) a

short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for

judgment for the relief the pleader seeks.” Tenn. R. Civ. P. 8.01. While a complaint does not need to

contain “detailed allegations of all the facts giving rise to the claim,” it must provide “sufficient factual

allegations to articulate a claim for relief.” Bowman v. Benouttas, 519 S.W.3d 586, 601 (Tenn. Ct. App.

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1965) (“A suit against a state official in his official capacity is a suit against the state.”).

Accordingly, we conclude that the trial court properly found that it lacked subject matter

jurisdiction over Plaintiffs claims against the TDOC Defendants. We affirm the trial

court’s dismissal of all of Plaintiff s claims against all of the Defendants.

B. Motion to Supplement the Record

Plaintiff also argues that the trial court erred in denying his motion to supplement

the record (Appellant Supplemental Brief, pg. 8). On December 12, 2018, Plaintiff filed

in this Court a “Motion to Supplement the Record with the Statement of the Evidence and

to Deem It Approved.” On January 3, 2019, we remanded the motion to the trial court to

determine whether and to what extent the record required supplementation in the manner

described in the motion (See COA Order on C-Track). On January 17, 2019, the trial

court entered its order, dismissing Plaintiffs motion with the reasoning that there was

already a transcription of the proceedings in the record. While the trial court did treat

Plaintiff s motion as a motion to correct or modify the record on appeal to include

matters that Plaintiff alleged had been omitted from the record, the trial court ultimately

found no such matters and dismissed Plaintiffs motion to supplement the record.

Rule 24(e) of the Tennessee Rules of Appellate Procedure provides the following:

If any matter properly includable is omitted from the record ... the record

may be corrected or modified-to-conform: to the truth. -'Any-differenees----- —

regarding whether the record accurately discloses what occurred in the trial

court shall be submitted to and settled by the trial court .... [T]he

determination of the trial court is conclusive.

Term. R. App. P. 24(e). Because a transcription of the proceedings was already a part of

the appellate record, the trial court did not err in denying Plaintiffs motion to

supplement. Moreover, to the extent that the trial court considered Plaintiffs motion as a

motion to correct or modify the record, the trial court did not err because its

determination on the matter is conclusive pursuant to Rule 24(e). We conclude that

Plaintiff is not entitled to any relief on this ground.

C. Jury Trial

Lastly, Plaintiff argues on appeal that he was deprived of “the right to trial by

jury” on his claims alleged in the Complain. While Plaintiff did demand a trial by jury,

as is his right pursuant to Tennessee Rule of Civil Procedure 38.02,8 the trial court

2016). Because Plaintiff failed to provide any dates or time frames regarding any alleged misconduct,

Plaintiff s complaint does not meet the pleading requirements of Rule 8.01.

8 Tennessee Rule of Civil Procedure 38.02 provides the following:

Any party may demand a trial by jury of any issue triable of right by jury by demanding

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ultimately dismissed all of his claims as a matter of law. Logically, such claims will not

reach a jury. See Logan v. Winstead, 23 S.W.3d 297, 302 (Tenn. 2000) (“Many suits can

be adjudicated on the pleadings.”). Accordingly, we conclude that Plaintiff was not

deprived of his right to a trial by jury.

Conclusion

For the foregoing reasons, the judgment of the trial court is hereby affirmed in all

respects.

ARNOLD B. GOLDIN, JUDGE

the same in any pleading specified in Rule 7.01 or by endorsing the demand upon such

pleading when it is filed, or by written demand filed with the clerk, with notice to all

parties, within 15 days after the service of the last pleading raising an issue of fact.

Tenn. R. Civ. P. 38.02.

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i

FILED

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

07/10/2019

Clerk of the

Appellate Courts

ASATA D LOWE v. MIKE PARRIS ET AL.

Circuit Court for Blount County

No. L-19878

No. E2018-01753-COA-R3-CV

ORDER

The Court’s Opinion in this case was filed on June 25, 2019. On July 5, 2019, the

Appellant, Asata D. Lowe, filed a Petition to Rehear pursuant to Rule 39 of the

Tennessee Rules of Appellate Procedure. Having reviewed and fully considered

Appellant’s petition, it is hereby respectfully denied.

Costs are taxed to the Appellant, Asata D. Lowe, for which execution may issue if

necessary. It is SO ORDERED.

PER CURIAM

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j

FILED

10/11/2019

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

Clerk of the

Appellate Courts

ASATA D LOWE v. MIKE PARRIS et al.

Circuit Court for Blount County

No. L-I9878

No. E2018-01753-SC-R11-CV

ORDER

Upon consideration of the application for permission to appeal of AsataDia Lowe and

the record before us, the application is denied.

PER CURIAM

Additional material

from this filing is

available in the

Clerk's Office.