Harlan White v. State of Tennessee, Department of Correction

• Court: Court of Appeals of Tennessee
• Decided: May 8, 1996
• Docket: 01A01-9602-CH-00071
• Status: Published

Opinion

HARLAN WHITE, ) ) Petitioner/Appellant, ) Appeal No. ) 01-A-01-9602-CH-00071 v. ) ) Davidson Chancery STATE OF TENNESSEE, ) No. 95-1598-III TENNESSEE DEPARTMENT OF ) CORRECTION, )

Respondents/Appellees. ) ) FILED May 8, 1996 COURT OF APPEALS OF TENNESSEE Cecil W. Crowson Appellate Court Clerk MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

HARLAN WHITE, Pro Se L.C.R.C.F. Route 1, Box 330 Tiptonville, Tennessee 38079

CHARLES W. BURSON Attorney General and Reporter

PATRICIA C. KUSSMANN Assistant Attorney General Civil Rights and Claims Division 404 James Robertson Parkway Suite 2000 Nashville, Tennessee 37243 ATTORNEYS FOR RESPONDENTS/APPELLEES

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE O P I N I O N

This is an appeal by petitioner, Harlan White, from the

trial court’s order dismissing his petition for declaratory

judgment on the ground that petitioner failed to exhaust his

administrative remedies.

Petitioner filed a petition for declaratory judgment with

the Tennessee Department of Correction ("Department") in March

1995. He claimed the Department failed to calculate his sentence

expiration date for one conviction, his sentence reduction credits,

and the date upon which he would be eligible for parole

consideration. Based on a claim that the Department failed to

provide him a timely hearing, petitioner filed a petition for

declaratory judgment in the Chancery Court for Davidson County

against respondents on 22 May 1995.

On 30 May 1995, Wilma Lutche, legal assistant for the

Department of Correction, responded to petitioner’s request for

declaratory order by letter. In his response, Mr. Lutche advised

petitioner that the Department was postponing its decision on his

request until petitioner presented his questions to his counselor

who would then contact the institution’s record office and sentence

management services if necessary. Mr. Lutche further advised

petitioner that, if he had already attempted to resolve his

question through those channels, he should send the Department

documentation which verified his attempts. Petitioner filed a

motion for "judicial estopple [sic]" in regard to the letter and

attached a supplement to his petition and a request for oral

argument titled "writ of habeas corpus testificandum."

Petitioner subsequently moved to amend his petition to add

additional defendants who are employees of the Department and who

2 are associated with petitioner’s records. The court denied his

motion in August 1995. Next, petitioner filed a written argument

asserting that the Department’s failure to calculate his sentence

in the manner he proposed in his petition was unconstitutional and

illegal.

Respondents filed a motion to dismiss petitioner’s petition

in July 1995 on the ground that petitioner had failed to comply

with the jurisdictional prerequisites for filing a petition for

declaratory judgment. Respondents accompanied their motion with

the affidavit of Candace Whisman, a Department of Correction’s

sentence information service technician. The affidavit explained

the Department’s inability to calculate petitioner’s sentence

expiration date until it received information from the sentencing

court regarding petitioner’s sentence.

Before responding to the motion to dismiss, petitioner filed

a second supplement to his petition for declaratory order

explaining his calculation of his sentence. In response to the

respondents’ motion, petitioner insisted they had no legal grounds.

In a third supplement filed in August 1995, petitioner took issue

with the Department’s refusal to calculate his sentence before

receiving information from the sentencing court and complained he

had attempted to resolve the question at an institutional level.

The chancery court granted respondents’ motion on 30 August

1995 and dismissed petitioner’s petition on the ground that he had

failed to exhaust his administrative remedies.

Petitioner is currently in the custody of the Department of

Correction at the Lake County Regional Correction Facility in

Tiptonville, Tennessee. After being convicted of armed robbery in

Shelby County in 1987, a court sentenced petitioner to ten years.

3 Petitioner was paroled in March 1989, but then violated his parole

by possessing a handgun and committing forgery. He was returned to

the Department’s custody in April 1993.

Subsequently, a court convicted petitioner of forgery and

possession of a handgun in Shelby County, but it did not sentence

him until February 1994 at which time he received two concurrent

two-year sentences. One of the sentences stated that petitioner

was to serve the sentence consecutively to a conviction in case no.

8700833. The Department had no information about case no. 8700833

and was unable to calculate petitioner’s release eligibility date

until it received the information.

The sole issue on appeal is whether the trial court properly

dismissed petitioner’s petition for declaratory judgment.

Tennessee Code Annotated section 4-5-224(b)(1991) provides:

"A declaratory judgment shall not be rendered concerning the

validity or applicability of a statute, rule or order unless a

complainant has petitioned the agency for a declaratory order and

the agency has refused to issue a declaratory order." In the

instant case, the Department has not refused to issue a declaratory

order. Instead, it is unable to do so because of petitioner’s

failure to resolve his complaint or to document his attempts to

resolve his complaint. Although petitioner provided the necessary

information to the trial court, we find nothing in the record to

show that he provided the Department with the information it needed

to respond to his request for a declaratory order. Therefore, a

declaratory judgment on this issue is premature.

The purpose of requiring that administrative remedies be

exhausted prior to judicial review are:

1) avoidance of premature interruption of the

4 administrative process, 2) provision for the agency to apply its expertise and to develop a record, and 3) maintenance of judicial efficiency by elimination of as many complaints as may be through the administrative process prior to judicial review.

Seepe v. Department of the Navy, 518 F.2d 760, 764 (6th Cir. 1975).

In the instant case, the Department has not had the

opportunity to address petitioner’s complaint. If he has followed

the procedure outlined in the correspondence to him, he has failed

to provide the Department with any documentation of these attempts.

Simply initiating the administrative process, as petitioner has

done, is not the same as exhausting his administrative remedies.

He must pursue his remedies through the Department to their

conclusion. Bracey v. Woods, 571 S.W.2d 828, 829 (Tenn. 1978).

In the instant case, the Department was unable to issue a

declaratory order because petitioner had not met the prerequisites

for requesting a declaratory order nor had he documented his

attempts to resolve his questions through his counselor, the

institution’s record office personnel, or the sentencing

information services. It is possible that the process of

administrative review would resolve petitioner’s complaint and

would render a suit unnecessary. Until petitioner exhausts his

administrative remedies, this controversy is not ripe for

adjudication. The trial court properly dismissed the petition for

declaratory judgment.

Judgment of the trial court is affirmed, and the costs are

assessed to petitioner/appellant, Harlan White. The cause is

remanded to the trial court for further necessary proceedings.

__________________________________

5 SAMUEL L. LEWIS, JUDGE

CONCUR:

_________________________________ HENRY F. TODD, P.J., M.S.

_________________________________ BEN H. CANTRELL, JUDGE