Hall v. McLesky

• Decision Date: 21 November 2001
• Citation: 83 S.W.3d 752
• Parties: Jon D. HALL v. Bill McLESKY, et al.
• Court: Tennessee Court of Appeals

83 S.W.3d 752

Jon D. HALL v. Bill McLESKY, et al.

Court of Appeals of Tennessee, at Nashville.

November 21, 2001.

Order on Petition to Rehear January 11, 2002.

Permission to Appeal Denied by Supreme Court July 8, 2002.

COPYRIGHT MATERIAL OMITTED

Jon D. Hall, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Hudson, Senior Counsel, for the appellees, Bill McLesky, Howard Brandon, Robert Waller, Ricky Bell, Charles Tracey, Sharon Johnson, Jim Rose, Opus Correctional, LLC.

OPINION

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH, JR. and WILLIAM B. CAIN, JJ., joined.

A death row inmate filed a Petition for Declaratory Judgment, claiming that employees of the Department of Correction had caused his attorney's phone number to be removed from an approved calling list, and had refused to restore the number to the list in a timely way. The inmate named seven employees of the Department and a private telephone company as defendants, and demanded monetary damages. The trial court dismissed the action, because the petitioner failed to comply with the mandatory requirements of the Uniform Administrative Procedures Act. Because we do not believe the petitioner was entitled to relief under any of the theories he advanced, we affirm the trial court.

I. A PRISONER'S GRIEVANCE

Jon D. Hall was convicted of first-degree murder, and sentenced to death for the 1994 strangulation and drowning of his wife. During his confinement at Riverbend Maximum Security Institution (RMSI) in Nashville, Mr. Hall filed a federal lawsuit against the two attorneys who had defended him at trial, and who represented him before the Court of Criminal Appeals. On April 2, 1998, the Court relieved the two attorneys of any further representation of Mr. Hall and appointed Jackson attorney Mark Donahoe to represent him in his appeal to the Supreme Court.

According to Mr. Hall's petition, Mr. Donahoe was placed on his attorney calling list shortly thereafter, and the inmate made at least fifteen collect calls to his attorney between April of 1998 and February of 1999. On February 24, 1999, Mr. Hall received a notice advising him that the State had been unable to validate Mr. Donahoe's phone number, and that the number had been blocked from the inmate's caller list. The signature of Sergeant Bill McLesky was on the notice. Mr. Hall promptly filed an emergency grievance, alleging that Sergeant McLesky had wrongfully removed Mr. Donahoe's number from the list, and demanding that it be restored immediately.

The procedures for filing inmate grievances are outlined in Index # 501.01 of the Policies and Procedures of the Department of Correction, and detailed in a handbook made available to inmates. These procedures include three levels of possible review, each of which is to be conducted according to strict time limits, so that grievances may be resolved promptly. There is also a provision for emergency grievances, which are expedited in situations where the normal time limits "could cause the grievant substantial risk of personal injury or irreparable harm." Index # 501.01(IV)(C).

Apparently, the authorities did not treat Mr. Hall's grievance as an emergency. On March 1, Deputy Warden Robert Waller filed a Level I response to the grievance. It stated that Sergeant McLesky had not blocked the number, but that the Department of Correction had asked Opus Telecom, which furnishes telephone services to the Department, to verify all attorney numbers, and that Opus had unsuccessfully attempted to reach Mr. Donahoe for verification. Warden Waller's response also stated that Mr. Donahoe's calls would remain blocked until the attorney sent the warden a letter or fax stating that he would accept calls from Mr. Hall. On March 9, 1999, grievance committee chairperson Howard Brandon concurred with Mr. Waller's response.

Mr. Hall then invoked the provisions for a Second Level Review by appealing to the grievance committee and the warden. The committee conducted a hearing on March 17, and subsequently filed a concurrence with the previous determination, which was signed by five committee members and by Warden Ricky Bell. Finally, Mr. Hall exercised his right to a Third Level Review by appealing to Assistant Commissioner Jim Rose. Mr. Rose denied the appeal on March 31, 1999.

II. PROCEEDINGS IN THE TRIAL COURT

On May 4, 1999, Mr. Hall filed a Suit for Declaratory Judgment in the Chancery Court of Davidson County. The named defendants were Sergeant McLesky, Howard Brandon, grievance committee members Charles Tracey and Sharon Johnson, Wardens Waller and Bell, Commissioner Rose, and Opus Correctional Incorporation (sic). Mr. Hall faulted the defendant correctional employees for removing Mr. Donahoe's number from his calling list, for not treating his grievance as an emergency, and for not restoring the number to the list during the grievance process.

The prisoner contended that the actions of the defendants had deprived him of his constitutional right to assistance of counsel. He noted that he was in the middle of an automatic direct appeal of his death sentence to the Tennessee Supreme Court, with oral argument set for June 2, 1999. Mr. Hall alleged that during the phone blockage, he had become aware of a case that furnished an argument for a possible reversal of his sentence on the ground of an erroneous jury instruction on intoxication and diminished capacity, and implied that as a result of the breakdown in communication, a supplemental brief prepared by Mr. Donahoe and filed in the Supreme Court on March 22, did not include anything about the allegedly erroneous jury instruction.¹

Mr. Hall further stated that he sent a certified, return receipt letter to Mr. Donahoe's office on March 24, 1999, detailing his phone problems and the jury instruction argument. Mr. Donahoe apparently received the letter, and allegedly told Mr. Hall's mother that he had already sent a letter to the warden to correct the phone problem. But Mr. Hall claimed that he was still unable to contact his attorney during his last attempt on April 30, 1999. The petitioner asked the trial court to issue an emergency restraining order to the Department to unblock his attorney's number, and to award him compensatory damages of $2,000, and punitive damages of $25,000.

The State responded to Mr. Halls's suit by filing a Motion to Dismiss on behalf of the seven departmental employees. The grounds asserted were the trial court's lack of jurisdiction, the personal immunity of the individual defendants, and the plaintiff's failure to state a claim upon which relief can be granted. See Rule 12.02(6), Tenn. R. Civ. P.

Opus Correctional LLC filed its own answer to the suit, asserting as affirmative defenses that the company was not properly served, that Mr. Hall did not suffer any harm as a result of any actions by Opus, and that there were no allegations of wrongdoing by Opus in the suit.

Mr. Hall filed a response to the State's motion on July 6, 1999, followed by several motions of his own. In his response, he argued that the correctional defendants were not entitled to immunity because their conduct amounted to gross negligence or actionable criminal behavior. He also characterized his suit for the first time as a 42 U.S.C. § 1983 claim for deprivation of civil rights. Mr. Hall reiterated his claims for monetary damages, noting that the defendants had since placed the phone number in question back on his caller list, but complaining that the action was "too little, too late." These same points were incorporated into Mr. Hall's motion to amend his complaint.

The trial court filed a Memorandum and Order on October 7, 1999, granting the plaintiff's Motion to Amend, but dismissing his suit for failure to follow the requirements for a Declaratory Judgment action found in the Uniform Administrative Procedures Act (UAPA). Mr. Hall then filed several post-judgment motions, including a Motion to Vacate or Amend the Memorandum and Order, accompanied by his affidavit, which alleged that Mr. Donahoe's name was removed from his phone list as a retaliation for his role in circulating a petition among death row inmates, protesting against the unreliability of the phone service provided to them. The trial court denied the motion, filing its final order in this case on May 26, 2000. This appeal followed.

III. DECLARATORY JUDGMENT

Two different sections of the Tennessee Code deal with declaratory judgments. The general statutes, found at Tenn.Code. Ann. § 29-14-101, et seq. announce that courts of record have the power to "declare rights, status and other legal relations, whether or not further relief is or could be claimed." Tenn.Code. Ann. § 29-14-102. We note, however, that the courts of Tennessee are prohibited from entertaining an action for declaratory judgment against a state officer under this statute. Carter v. McWherter, 859 S.W.2d 343 (Tenn.Ct.App.1993). It therefore was proper for the trial court to construe Mr. Hall's suit as a Petition for Declaratory Judgment under the UAPA, Tenn.Code Ann. § 4-5-201, et seq.

Tenn.Code. Ann. § 4-5-225 of the UAPA makes it possible for an individual who is aggrieved by the action of a state agency to obtain relief from the courts if he follows the steps outlined in the Act. Tenn.Code Ann. § 4-5-225 reads, in pertinent part,

(a) The legal validity or applicability of a statute, rule or order of an agency to specified circumstances may be determined in a suit for a declaratory judgment in the chancery court of Davidson County, unless otherwise specifically provided by statute, if the court finds that the statute, rule or order, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the complainant. The agency shall be made a party to the suit.

(b) A declaratory judgment...