Pendleton v. Mills

• Decision Date: 18 September 2001
• Docket Number: No. M2000-03097-COA-R3-CV.,M2000-03097-COA-R3-CV.
• Citation: 73 S.W.3d 115
• Parties: Eric Cordell PENDLETON, et al., v. Joseph Gower MILLS.
• Court: Tennessee Court of Appeals

73 S.W.3d 115

Eric Cordell PENDLETON, et al., v. Joseph Gower MILLS.

No. M2000-03097-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

September 18, 2001.

Permission to Appeal Denied by Supreme Court February 11, 2002.

Eric Pendleton and Ricky Flamingo Brown, Nashville, TN, pro se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, for Joseph Gower Mills.

OPINION

KOCH, J., delivered the opinion of the court, in which CAIN and COTTRELL, JJ., joined.

This appeal involves a dispute between two prisoners incarcerated at the Riverbend Maximum Security Institution and a corrections officer over the confiscation of a draft note one prisoner desired to pass to the other. One of the prisoners filed a grievance over the confiscation of his note. Before the prison's grievance procedures had been exhausted, both prisoners filed a pro se 42 U.S.C. § 1983 (1994) action in the Circuit Court for Davidson County, alleging that the corrections officer had violated his oath of office, unlawfully discriminated against them based on their race, and unlawfully interfered with their right of access to court. The trial court granted the corrections officer's motion for summary judgment based on the prisoners' failure to exhaust their remedies before filing suit. Both prisoners have appealed. We have determined that the trial court erred by dismissing the prisoners' complaint for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a) (1994 Supp. V 1999). However, we have also determined that the complaint of one of the prisoners is subject to dismissal on other grounds.

I.

Eric C. Pendleton and Ricky Flamingo Brown are incarcerated at the Riverbend Maximum Security Institution in Nashville. Mr. Pendleton is serving a life sentence and a concurrent six-year sentence following his 1987 convictions for first degree murder and aggravated assault.¹ Mr. Brown is serving a life sentence stemming from his 1987 conviction for raping his twelve-year-old daughter.²

Both Mr. Pendleton and Mr. Brown are extremely litigious. In addition to the direct appeal from his convictions, Mr. Pendleton has filed three petitions for post-conviction relief in state court, one petition for a writ of habeas corpus in state court, and, at his own count, two other lawsuits in the United States District Court for the Middle District of Tennessee which have been dismissed. Mr. Brown forfeited the direct appeal from his rape conviction because of his escape. However, following his recapture, he has filed one petition for post-conviction relief in state court, twelve lawsuits in the United States District Court for the Middle District of Tennessee, and one lawsuit in the United States District Court for the Western District of Tennessee. All but one of these lawsuits have been dismissed and have been found to be frivolous.³

Mr. Pendleton serves as an "inmate legal helper"⁴ for Unit One at Riverbend Maximum Security Institution. On June 19, 2000, in response to an appropriate request, he met with Mr. Brown in the non-contact visiting room of Unit One. The two prisoners were separated by a glass partition, apparently for security reasons. The purpose of this meeting was to discuss how they could challenge the federal Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").⁵

Messrs. Pendleton and Brown apparently decided that the prison library did not contain sufficient information about the AEDPA and that they should file a grievance against the library for lack of information and for failing to provide assistance. They decided to ask the librarian to provide them with information regarding how the library had acquired its information regarding the AEDPA. Because Mr. Brown lacked paper, he requested Mr. Pendleton to provide him with a sheet of paper to draft the questions they planned to put to the librarian. Because they were separated by glass, Mr. Pendleton asked Corporal Joseph Gower Mills, who was observing their discussion, to hand a sheet of paper to Mr. Brown. Corporal Mills complied. After Mr. Brown completed the draft, he asked Corporal Mills to hand the draft to Mr. Pendleton. Rather than returning the draft to Mr. Pendleton, Corporal Mills confiscated it on the pretext that department policy did not permit employees to hand deliver inmate messages addressed to other staff members.⁶ When confronted by Messrs. Brown and Pendleton about his actions, Corporal Mills responded, at least according to the prisoners: "All you black prisoners do is sit around trying to get out of prison."

Mr. Brown filed an inmate grievance regarding this incident on June 23, 2000. Corporal Mills's supervisor and the grievance board sided with Corporal Mills at the first level of the grievance proceeding, and on July 4, 2000, Mr. Brown requested a second level hearing. Before this hearing could be held, Messrs. Brown and Pendleton filed this 42 U.S.C. § 1983 complaint in the Circuit Court for Davidson County on July 11, 2000, alleging that Corporal Mills had denied them access to the courts, had discriminated against them based on their race, and had violated his oath of office.

Two weeks after Messrs. Brown and Pendleton filed their lawsuit, the grievance board recommended to the warden that internal affairs personnel should look into the allegations concerning Corporal Mills. The warden overruled this recommendation on July 25, 2000, and on August 4, 2000, the Commissioner of Correction's designee denied Mr. Brown's appeal and concurred with the warden's decision. With this action, Mr. Brown had exhausted all his avenues for administrative consideration of his grievance arising out of the June 19, 2000 incident.

On August 29, 2000, the Attorney General and Reporter filed a "motion to dismiss or for summary judgment" on behalf of Corporal Mills. The motion asserted that the complaint filed by Messrs. Brown and Pendleton failed to state a claim upon which relief could be granted and that Corporal Mills was entitled to a judgment as a matter of law. Unfortunately, the Attorney General's motion failed to state precisely why Corporal Mills was entitled to a judgment as a matter of law as required by Tenn. R. Civ. P. 7.02.⁷ We presume from the affidavit by "Sargent [sic] Eyvonne Staples" attached to the motion, that two of the grounds of the motion must have been that Mr. Brown's grievance had not been fully resolved and that Mr. Pendleton had not filed a grievance regarding the June 19, 2000 incident.⁸ On October 26, 2000, the trial court entered an order granting Corporal Mills's summary judgment motion and dismissing the complaint. This order does not state the basis for the trial court's decision.

II. THE STANDARD OF REVIEW

The motion filed on behalf of Corporal Mills is a hybrid. It combines a Tenn. R. Civ. P. 12.02(6) motion to dismiss with a Tenn. R. Civ. P. 56 motion for summary judgment. Of course, a Tenn. R. Civ. P. 12.02(6) motion must be converted to a summary judgment motion if "matters outside the pleadings are presented to and not excluded by the court." Pacific Eastern Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952 (Tenn.Ct.App.1995). Thus, at the outset, we must determine whether the trial court relied on matters outside of the pleadings when it granted Corporal Mills's motion.

Included with the motion filed on behalf of Corporal Mills is the August 10, 2000 affidavit by Sergeant Eyvonne Staples. This affidavit relates exclusively to the status of Mr. Brown's pending grievance and the fact that Mr. Pendleton never filed a grievance of his own. In light of the recital in the trial court's order that it considered the motion "on the pleadings and other materials submitted," we conclude that the trial court did not exclude Sergeant Staples's affidavit and, therefore, that Corporal Mills's motion, at least insofar as the grounds that rely on the affidavit are concerned, must be treated as a motion for summary judgment under Tenn. R. Civ. P. 56. However, to the extent that the motion asserted grounds under Tenn. R. Civ. P. 12.02(6) that did not rely on Sergeant Staples's affidavit, it should be treated as a motion to dismiss. The difference between a motion to dismiss and a motion for summary judgment is more than academic when it comes to the standard of review.

A. The Standard of Review For Orders Granting Tenn. R. Civ. P. 12.02(6) Motions

The sole purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to test the sufficiency of the complaint, not the strength of the plaintiff's evidence. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999); Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn.1999). It requires the courts to review the complaint alone, Daniel v. Hardin County Gen. Hosp., 971 S.W.2d 21, 23 (Tenn.Ct.App.1997), and to look to the complaint's substance rather than its form. Kaylor v. Bradley, 912 S.W.2d 728, 731 (Tenn.Ct.App.1995). Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the alleged facts will not entitle the plaintiff to relief or when the complaint is totally lacking in clarity and specificity. Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn.Ct.App.1992).

A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the relevant and material factual allegations in the complaint but asserts that no cause of action arises from these facts. Winchester v. Little, 996 S.W.2d 818, 821-22 (Tenn.Ct.App.1998); Smith v. First Union Nat'l Bank, 958 S.W.2d 113, 115 (Tenn.Ct.App.1997). Accordingly, courts reviewing a complaint being tested by a Tenn. R. Civ. P. 12.02(6) motion must construe the complaint liberally in favor of the plaintiff by taking all factual allegations in the complaint as true, Stein v. Davidson Hotel, 945 S.W.2d 714, 716 (Tenn.1997), and by giving the plaintiff the benefit of all the inferences that can be reasonably drawn from the...