Paul Farnsworth v. Billy Compton

• Court: Court of Appeals of Tennessee
• Decided: June 7, 1999
• Docket: 02A01-9809-CV-00257
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON

PAUL FARNSWORTH,

Plaintiff/Appellant, ) ) ) Lake Circuit No. 97-7700 FILED ) June 7, 1999 VS. ) Appeal No. 02A01-9809-CV-00257 ) Cecil Crowson, Jr. BILLY COMPTON, et al, ) Appellate Court Clerk ) Defendants/Appellees. )

APPEAL FROM THE CIRCUIT COURT OF LAKE COUNTY AT TIPTONVILLE, TENNESSEE THE HONORABLE R. LEE MOORE, JR., JUDGE

RONNIE BRADFIELD a/k/a PAUL FARNSWORTH, pro se Pikeville, Tennessee

PAUL G. SUMMERS Attorney General & Reporter MICHAEL MOORE Solicitor General PAMELA S. LORCH Assistant Attorney General Nashville, Tennessee Attorneys for Appellees

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J. Paul Farnsworth, a pro se inmate, has appealed the trial court’s dismissal of this 42 U.S.C. § 1983 civil rights action that was brought against numerous individually named

defendants. Based upon the following, we affirm the trial court’s dismissal.

Facts and Procedural History

On October 27, 1997, Farnsworth filed a complaint in the Lake County Circuit Court

against Billy Compton, Ray Goodine, Jeff Daniels, Johnny Free, Fred Raney, Jeffery

Bratton, Sonya Little, Tammy Rivera, John Mitchum, Dale Bashum, Hattie Moore, Melvin

Tirey, Ron Bloebaum, Robin Kimble, Cythina Johnson, Pamela Grady, Pamela Maxwell,

Lisa Williford, and Donal Campbell, naming all defendants in their individual capacities.

Subsequently, on November 13, 1997, Farnsworth amended his complaint to include

claims against two additional individual defendants, Raymond Rice and Nathan Bishop.

Each defendant was alleged to be either a TDOC employee (most of whom were employed

at the Northwest Correctional Complex in Tiptonville, Lake County, Tennessee) or an

employee of Correction Corporation of America (all of whom were employed at the

Hardeman County Correctional Facility in Whiteville, Hardeman County, Tennessee). The

Hardeman County defendants included Rivera, Mitchum, Johnson, Grady, Maxwell,

Williford, Rice, and Bishop. After six of these eight Hardeman County defendants (Rivera,

Johnson, Maxwell, Williford, Rice, and Bishop) subsequently moved to dismiss

Farnsworth’s claims against them based upon both improper venue and failure to state a

claim upon which relief can be granted, Farnsworth voluntarily nonsuited these six

Hardeman County defendants. Thereafter, the remaining defendants included Compton,

Goodine, Daniels, Free, Raney, Bratton, Little, Mitchum, Bashum, Moore, Tirey, Bloebaum,

Kimble, Grady, and Campbell (hereafter collectively referred to as “the defendants”).

Though numerous factual allegations that are set forth in Farnsworth’s complaint

regarding the defendants’ alleged conduct are not entirely comprehensible as written, we

are able to glean from Farnsworth’s complaint the allegations set forth immediately below.

Little (a TDOC employee) inaccurately increased Farnsworth’s security level, and

2 Goodine (a TDOC classification coordinator), Compton (a former TDOC warden and

present TDOC deputy warden), and Little reclassified him to the Northwest Correctional

Complex. Moreover, Goodine and Compton sent Farnsworth to the Northwest Correctional

Complex even though they knew that another prisoner who was known to be “incompatible”

with Farnsworth was incarcerated there. Farnsworth’s incarceration at the Northwest

Correctional Complex caused him to be in “constant fear of being confronted by one of his

incompatibles.”

Moore (a TDOC corrections officer), Bashum (a TDOC corrections officer), and

Daniels (a TDOC counselor) placed an “incompatible” inmate in the same prison cell to

which Farnsworth had already been assigned, and they refused to reassign this inmate to

another cell. This, Farnsworth alleged, caused Farnsworth to fear for his life. Moreover,

the presence of the cell-mate reduced Farnsworth’s ability to move about in his wheel-

chair, which caused him to experience increased bowel problems and other associated

physical ailments. Also, Farnsworth alleged the cell assignment to be a retaliation for

Farnsworth’s assertion of other lawsuits.

Farnsworth filed “appeals” (presumably administrative grievance appeals) to

Compton and Campbell (the TDOC Commissioner), but they failed to return responses.

Bratton (a TDOC counselor) attempted to coerce Farnsworth into signing a form

requesting protective custody, and other papers consenting to placement in segregation,

and he threatened to and did retaliate against Farnsworth for his failure to sign such forms

by denying him use of the telephone, forcing him to have recreation outside in bad

weather, and refusing to provide him legal assistance.

Campbell was advised of all of the above asserted matters, but failed to act to

correct the same.

3 Raney (a TDOC warden) and Bloebaum (a TDOC health administrator) failed to

provide him “with the proper medical care, that was prescribed previously by physician(s),”

failed to take measures to allow Farnsworth to access a particular recreational area that

was not readily wheelchair accessible due to steps, failed to provide properly fitting

catheters -- as the catheters that had been provided to him would sometimes “slips [sic]

off causing [his] urine [to] flow into his clothes and [would] restrict the flow of his blood in

his penis causing swelling and knots to appear,” and failed to provide him with new

eyeglasses after “his eyeglasses had become useless.”

Raney refused to assign an inmate who was a known gang member and who was

assigned to the same cell as was Farnsworth to a different cell. At some point, Tirey and

Raney transferred Farnsworth to another facility without following some TDOC

reclassification process.

Grady (a health administrator at the Hardeman County Correctional Facility) failed

to respond to complaints regarding actions of her subordinates and failed to correct such

actions, which included a failure to comply with a doctor’s order to give Farnsworth

Robaxtim for muscle spasm, and a failure to provide Farnsworth with unspecified medical

equipment. Grady also failed to arrange for new eyeglasses and dental care for

Farnsworth.

Mitchum (a senior correction officer at the Hardeman County Correctional Facility)

failed to follow a doctor’s order by refusing to allow Farnsworth to come out at night to

shower and by refusing to give Farnsworth an extra blanket.

The relief sought by Farnsworth in his complaint included declaratory relief,

injunctive relief, compensatory damages, punitive damages, costs, and attorney fees.

In February 1998, all remaining defendants except Mitchum and Grady moved for

dismissal based upon the contention that Farnsworth failed to comply with Tennessee

4 Code Annotated sections 41-21-801 et seq., and upon the contention that Farnsworth

failed to state any claim upon which relief could be granted. On April 6, 1998, Farnsworth

filed his response to the motions to dismiss, along with interrogatories and requests for

production of documents. On September 2, 1998, the trial court dismissed Farnsworth’s

action.1 Thereafter, Farnsworth appealed.

On appeal, Farnsworth asserts that the defendants had defaulted, that he was

denied “a fair and meaningful discovery process,” that the trial judge was prejudiced toward

Farnsworth, and that Farnsworth stated valid claims upon which relief could be granted.

Analysis

A. Default

Absent citation to any appropriate authority, Farnsworth’s brief asserts, “defendants

failed to response [sic] or answer in the time allowed by law.” At no point, however, did

Farnsworth apply to the court for a judgment by default in accordance with Tennessee Rule

of Civil Procedure 55.01. See Tenn. R. Civ. P. 55.01. Moreover, issues not raised in the

trial court may not be raised for the first time on appeal. Simpson v. Frontier Community

Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991); Lawrence v. Stanford, 655 S.W.2d 927,

929 (Tenn. 1983). Additionally, Farnsworth has not complied with Rule 6(a) of the

Tennessee Rules of the Court of Appeals (as he is unable to do), which requires written

argument in regard to each issue on appeal to contain “A statement showing how such

alleged error was seasonably called to the attention of the trial judge with citation to that

part of the record where appellant’s challenge of the alleged error is recorded.” See Tenn.

R. Ct. App. 6(a). Accordingly, Farnsworth’s argument relating to default is devoid of any

1. Tho ugh it might be noted that Mitchum and Grady had not moved for dismissal along with the other defendants, as they had not been served with process, Tennessee Code Annotated section 41-21-804 provides, “A cour t m ay dismiss a claim filed by an inm ate, either before or after service of process on the defend ant, if the court finds that . . . [t]he claim is frivolous or malicious.” Tenn. Code Ann. § 41-21-804(a) (1997) (em pha sis added). This statute sets forth several factors for courts to consider in determining whether a claim is frivolous or malicious, including “[t]he claim has no basis in law and in fact.” Id. § 41-21-804(b). In this case, the trial court determined that Farnsworth failed to state any claim upon which relief could be granted, i.e. that Farnsworth’s claims had no basis in law and in fac t. Accordingly, the trial court possessed the discretion , pursua nt to section 41-21-8 04(a), to dism iss F arns worth ’s claims against Grady and Mitchum sua sponte . Moreover, Farnsworth has not asserted any error resulting from the mere fact that the trial cour t’s dismissal as to Grady and Mitchum was sua sp onte .

5 merit.

B. Discovery

Farnsworth also asserts, absent citation to any pertinent authority, that he was

denied “a fair and meaningful discovery process.” In this case, the trial court was faced with

motions to dismiss for failure to state a claim upon which relief could be granted. “Nothing

said in argument on such a motion can add to or take from the complaint.” Cornpropst v.

Sloan, 528 S.W.2d 188, 190 (Tenn. 1975). Accordingly, given the nature of the pending

motions, we find no error in relation to discovery during the pendency of these motions,

and any issue raised by Farnsworth with respect thereto is devoid of any merit.

In fact, we note that if the trial court had committed any error in regard to discovery,

it would have been premised upon an order from the trial court that: (1) denied a motion

by the defendants seeking an extension of time to respond to written discovery until after

the trial court’s disposition of the pending motions to dismiss for failure to state a claim

upon which relief can be granted; and (2) ordered the defendants to respond to the written

discovery within thirty days (prior to the court’s disposition of the pending motions to

dismiss). In cases involving lawsuits by inmates, such as this one, Tennessee Code

Annotated section 41-21-804(d) requires the trial court to suspend all discovery upon the

filing of a motion to dismiss asserting that a claim is frivolous or malicious. Tenn. Code

Ann. § 41-21-804 (1997). Section 41-21-804(b) sets forth several factors for courts to

consider in determining whether a claim is frivolous or malicious, including “[t]he claim has

no basis in law and in fact.” Id. § 41-21-804(b). Because the defendants’ motion to

dismiss was based, in part, upon the assertion that Farnsworth’s claim had no basis in law

and in fact (i.e., that Farnsworth failed to state a claim upon which relief can be granted),

the motion to dismiss amounted to one that asserted Farnsworth’s claim to be frivolous or

malicious. Accordingly, section 41-21-804 required the trial court in this case to suspend

all discovery, i.e. grant the defendants’ motion for an extension of time. Therefore, again,

any issue raised by Farnsworth with respect to discovery has no merit.

6 C. Prejudice Against Farnsworth

Farnsworth’s brief claims that the trial judge was prejudiced toward Farnsworth.

However, as to this issue, Farnsworth has failed to comply with Rule 6(a) of the Tennessee

Rules of the Court of Appeals, which requires written argument in regard to each issue on

appeal to contain, among other things: “A statement showing how such alleged error was

seasonably called to the attention of the trial judge with citation to that part of the record

where appellant’s challenge of the alleged error is recorded”; and “A statement of each

determinative fact relied upon with citation to the record where evidence of each such fact

may be found.” See Tenn. R. Ct. App. 6(a)(2), (4). “No complaint of or reliance upon

action by the trial court will be considered on appeal unless the argument thereon contains

a specific reference to the page or pages of the record where such action is recorded [and]

[n]o assertion of fact will be considered on appeal unless the argument upon such

assertion contains a reference to the page or pages of the record where evidence of such

fact is recorded.” Tenn. R. Ct. App. 6(b). Farnsworth is unable to comply with Rules 6(a)

and (b) because he did not move to have the trial judge recuse himself, and did not

introduce any proof that would support such a motion. Issues not raised in the trial court

may not be raised for the first time on appeal. Simpson v. Frontier Community Credit

Union, 810 S.W.2d 147, 153 (Tenn. 1991); Lawrence v. Stanford, 655 S.W.2d 927, 929

(Tenn. 1983). Accordingly, Farnsworth’s contention relating to prejudice is also devoid of

any merit.

D. Failure to State a Claim Upon Which Relief Can Be Granted

In support of Farnsworth’s contention that he stated valid claims upon which relief

can be granted, he sets forth the following argument, which we quote verbatim in its

entirety:

THAT APPELLANT DID STATE A CLAIM:

You appellant avers, that although several claims were stated as a matter of law and fact(s), Even to set that aside, the appellant stated facts to support...by way of complaint, that is consider an affidavit in opposition as well, to wit:

That action or lack thereof... was a proximately caused by the defendant, for

7 appellants injuries and suffering...

that as a result plaintiff suffered a result of the above....

that the preponderance of evidence, that the plaintiff was prejudicial denied in getting/and/or/obtaining, needed, admission and a meaningful as well a fair discovery process, which after discovery could prove as well further prosecute his cause of action was denied of him.... in an unfair as well unmeaningfully manner, with prejudice.....

FURTHER, that if defendants, have followed their own policies, this state of law, as well the United States Constitution, plaintiff would not have suffered, as well his rights, violated.

Whatever is meant by Farnsworth by the above argument, it is plain that he has failed to

cite any legal authority in his brief to support his contention that the defendants’ alleged

conduct amounted to some “deprivation of any rights, privileges, or immunities secured by

the Constitution and laws,”2 which waives our consideration of this issue. See Rampy v.

ICI Acrylics, Inc., 898 S.W.2d 196, 210 (Tenn. Ct. App. 1994); Wilhite v. Brownsville

Concrete Co., 798 S.W.2d 772, 775 (Tenn. Ct. App. 1990). See also Tenn. R. App

27(a)(7) (“The brief of the appellant shall contain . . . [a]n argument . . . setting forth the

contentions of the appellant with respect to the issues presented, and the reasons therefor

. . . with citations to the authorities . . . relied on . . . .”).

E. Tenn. Code Ann. §§ 41-21-801 et seq.

Even assuming Farnsworth stated any claims upon which relief could be granted,

the trial court’s dismissal was based, in part, upon a failure to comply with Tennessee

Code Annotated section 41-21-801 et seq. In the trial court’s order of dismissal, it stated

the following:

The first issue . . . is that Plaintiff violated the terms and conditions of T.C.A. § 41-21-801 et seq. in filing this lawsuit. Although Plaintiff did file an affidavit of indigency, Plaintiff did not comply with T.C.A. § 41-21-805 regarding prior lawsuits. This issue is especially important in this case as Plaintiff, Paul Farnsworth a/k/a Ronnie Bradfield, has filed numerous lawsuits substantially similar to the claims alleged in this case. Plaintiff has also failed to comply with T.C.A. § 41-21-806.

2. 42 U.S.C. § 1983, pursuant to which Farnsworth’s claims were brought, provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or oth er prope r procee ding for re dress. . . . .

42 U.S.C.S. § 1983 (199 4).

8 On appeal, Farnsworth has not alleged any error on the part of the trial court in basing its

dismissal, in part, upon a failure to comply with sections 41-21-8053 and -806.4

Conclusion

Based upon the foregoing, the trial court’s dismissal of Farnsworth’s action is hereby

affirmed. Costs of this appeal are taxed to Farnsworth, for which execution may issue if

necessary.

3. Section 41-21-805, titled “Affidavit of inability to pay; lawsuits or claims previously filed,” provides:

(a) Any inmate who files a claim w ith an affidavit of inability to pay costs shall file a separate affidavit with the following information: (1) A co mp lete lis t of ev ery law suit o r claim prev ious ly filed b y the in mate , without regard to whether the inmate was incarcerated at the time any claim or action was filed; and (2) For each claim or action listed in subsection (a): (A) Th e opera tive facts fo r which re lief was so ught; (B) The case name, case number and court in which the suit or claim was filed; (C) The legal theory on which the relief sought was based; (D) The identification of each party named in the action; and (E) The final result of the action, including dismissal as frivolous or malicious under this part or otherwise. (b) If the affidavit filed unde r this s ectio n sta tes th at a p revio us s uit was dismissed as frivolous or malicious, the affidavit must state the date of the final order affirming the dism issa l. (c) The affidavit must be accompanied by a current certified copy of the inmate's trust accou nt statem ent.

Tenn. Code A nn. § 41-21-805 (1997).

4. Section 41-21-8 06, titled “Re view by grieva nce co mm ittee,” provide s, in part:

(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 cour t sha ll dism iss th e claim if the in mate fails to file the claim before the thirty-first day after the date the inmate receives the final decision from the grievance committee.

Tenn. Code A nn. § 41-21-806(a) & (b) (1997).

9 HIGHERS, J.

CRAWFORD, P.J., W.S.

FARMER, J.