Cornell Poe v. City of Jackson Mayor Jerry Gist ( 2018 )

06/11/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 1, 2017
CORNELL POE v. CITY OF JACKSON MAYOR JERRY GIST ET AL.
Appeal from the Circuit Court for Madison County
No. C-16-282 Kyle C. Atkins, Judge
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No. W2017-00465-COA-R3-CV
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A passenger on a Jackson Transit Authority bus was arrested as a result of an altercation
with the driver; the arrest led to the passenger’s parole being revoked and his resulting
incarceration. The passenger brought suit, asserting claims for slander and libel under the
Tennessee Governmental Tort Liability Act and Tennessee Public Protection Act against
the Transit Authority and certain of its employees, and the Mayor and various employees
of the City of Jackson. The trial court granted summary judgment in favor of the
defendants, and this appeal followed. Upon our review, we have determined that the
complaint fails to allege causes of action under the Governmental Tort Liability Act and
the Public Protection Act, and that the causes of action asserted against the individual
defendants are barred by the statute of limitations. Accordingly, we affirm the judgment
of the trial court dismissing the case.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Cornell Poe, Whiteville, Tennessee, Pro Se.
Dale Conder, Jr., Jackson, Tennessee, for the appellees, City of Jackson Mayor, Jerry
Gist; City of Jackson Personnel Director, Lynn B. Henning; Jackson Transit Authority
General Manager, Travis Franklin; City Employee, Bus Driver, Lonell Theus, Jr.; City of
Jackson Chief of Police, Julian Wiser; and Jackson Police Officer, Robert Beilke.
MEMORANDUM OPINION1
This case arises from an incident that occurred on November 3, 2015, when
Cornell Poe, while riding on a bus operated by the Jackson Transit Authority (“JTA”),
was involved in an altercation with the driver of the bus, Lonell Theus, Jr. As a result of
this incident, Mr. Poe was arrested; his parole was subsequently revoked, and he was
incarcerated.
Mr. Poe brought suit on November 7, 2016, against Jerry Gist, Mayor of the City
of Jackson; Lynn B. Henning, Personnel Director for the City of Jackson; Mr. Theus;
Julian Wiser, Police Chief for the City of Jackson, and Robert Beilke, a police officer for
the City of Jackson (collectively referred to as “the defendants”), asserting claims under
the Tennessee Governmental Tort Liability Act (“GTLA”), Tennessee Code Annotated
section 29-20-101, et seq., and the Tennessee Public Protection Act (“TPPA”), Tennessee
Code Annotated section 50-1-304, for slander and libel. On November 27, he amended
the complaint to add JTA General Manager, Travis Franklin, as a defendant.
In due course, the defendants filed a motion for summary judgment; they
supported this motion with a statement of undisputed material facts, a memorandum of
law, and two affidavits. As bases for summary judgment, the defendants asserted that the
statute of limitations at Tennessee Code Annotated section 28-3-103 barred Mr. Poe’s
claim; that he failed to allege facts to state a claim under the TPPA; that the allegation in
the complaint against Mr. Gist was untrue; that the complaint contained no factual
allegations against Mr. Wiser and Ms. Henning; that JTA was immune from suit; and that
the Parole Board’s finding of probable cause to revoke his parole necessitated a finding
that he was at fault in the altercation and barred his claim.
Defendants set forth the following undisputed material facts:
1. Mayor Gist is not Jackson Transit Authority’s director.
2. Lonell Theus is not a City of Jackson employee.
3. Theus is a driver for JTA.
4. Lynn Henning was not present when the events alleged in the Amended
Complaint or Complaint occurred.
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Rule 10 of the Rules of the Court of Appeals states:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
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5. Tennessee’s Board of Parole revoked Cornell Poe’s parole because [of]
his assault of Lonell Theus.
6. Poe’s arrest led to the revocation of his parole and his incarceration in
the Hardeman County Correctional Facility.
In support of these facts and the motion, Defendants also filed affidavits of Gayle S.
Barbee, Director of Operations for the Tennessee Board of Parole, in which she
authenticated the Notice of Board Action revoking Mr. Poe’s parole; and of Lynn
Henning, who attested that Mayor Gist is not the Director and that she was not the
personnel director of the JTA; that Lonell Theus Jr. was not an employee of the City of
Jackson; and that she was not present at the time the events alleged in the Complaint
occurred and knew nothing about the incident. Defendants also filed a memorandum in
support of their motion.
In response to the motion and supporting materials, Mr. Poe filed documents
styled “Plaintiff Reply To Defendants Memorandum In Support Of Summary Judgment
Motion,” a “Motion In Opposition Of Defendant’s Statement Of Undisputed Material
Facts,” and “Plaintiff Reply to Defendants Summary Judgment Motion and
Memorandum In Support Of Summary Judgment Motion.”
A hearing on the motion was held on January 25, 2017, after which the court
granted summary judgment to defendants. Mr. Poe filed a timely appeal; while he has
stated four issues for review, the dispositive issue is whether the court erred in granting
the motion for summary judgment.2
At the outset, we note that Poe is representing himself; in consideration of this
fact, we are mindful of the following instruction from Hessmer v. Hessmer:
Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. The courts should take into account that many pro
se litigants have no legal training and little familiarity with the judicial
2
Mr. Poe states the following as the issues for review:
[Whether] Madison County Chancery Court erred when it dismissed Appellant suit based
upon Appellant motion for failure to state a claim?
[Whether] Madison County Chancery Court erred when it dismissed Appellant suit based
failure to prosecute the case?
[Whether] Madison County Chancery Court erred when it dismissed Appellant suit based
on the original request for copies was filed inappropriate and could not serve as basis
[f]or relief?
[Whether] Madison County Chancery Court Judge erred when it dismissed Appellant
action/ suit based on the request is moot was an unreasonable decision/ abuse of
discretion?
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system. However, the courts must also be mindful of the boundary between
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
Thus, the courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected
to observe.
Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct. App. 2003) (internal citations
omitted).
The GTLA codifies the general common law rule that “all governmental entities
shall be immune from suit for any injury which may result from the activities of such
governmental entities,” Tennessee Code Annotated section 29-20-201(a), subject to
statutory exceptions. For instance, immunity from suit for personal injury claims is
removed in section 29-20-205 “for injury proximately caused by a negligent act or
omission of any employee within the scope of his employment,” unless the injury arises
out of one of several enumerated exceptions, specifically including libel and slander.
Tenn. Code Ann. § 29-20-205(2). In the amended complaint,3 Mr. Poe alleges in
pertinent part:
That the plaintiff is presently incarcerated at Hardeman County
Correctional Facility, . . . as a result of the Slander and Libel of the said
defendants.
That the charges civilly imposition [sic] against Mr. Poe was
procedurally dismissed as a result of Lack of Probable Cause.
1. Plaintiff’s injuries or losses occurred on or about November 3,
2015, and under the following circumstances:
REPORTING OFFICER NARRATIVE: Incident/Investigation OCA
15-018441 Report
Mr. Lonell Theus made a complaint against Mr. Cornell Poe on
November 3, 2015 at approximately 11:05 am. Jackson Police department
patrol officer was dispatched to the Jackson Transit Authority bus terminal
to take an assault report. Upon arrival contact was made with Lonell
Theus, Jr., a bus driver, who stated that a passenger assaulted [him] on the
bus.
As stated in the amended complaint, this suit is based on libel and slander; as such,
immunity is not removed and the GTLA does not provide an avenue for relief to Mr. Poe
as against JTA and its employees and the Mayor and City of Jackson employees, while
3
The Amended Compliant is eleven pages long, and includes a narrative of argument, case law, legal
arguments, and other material that is totally non-compliant with the instruction of Tennessee Rule of Civil
Procedure 8.01 that the complaint contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” The complaint was accompanied by copies of seven unverified documents
from the Jackson Police Department, Jackson City Court, and the State of Tennessee Board of Parole.
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acting in the scope of their employment. Moreover, an action arising under GTLA “must
be commenced within twelve (12) months after the cause of action arises.” Tenn. Code
Ann. § 29-20-305. The amended complaint alleges that Mr. Poe’s injury arose on
November 3, 2015; Mr. Poe brought his suit on November 7, 2016, outside the
limitations period.
Likewise, the claims asserted against the individual defendants are barred by the
statutes of limitations of six months for slander actions, Tenn. Code Ann. § 28-3-103, and
one year for libel actions, as found at section 28-3-104.
Mr. Poe’s separate claim under TPPA also fails. The four requisites for a cause of
action under TPPA are:  (1) his status as an employee of the defendant employer; (2) his
refusal to participate in, or remain silent about, “illegal activities” as defined under the
Act; (3) his termination; and (4) an exclusive causal relationship between his refusal to
participate in or remain silent about illegal activities and his termination. Franklin v.
Swift Transp. Co., Inc., 210 S.W.3d 521, 528 (Tenn. Ct. App. 2006) (citing Tenn. Code.
Ann. § 50–1–304). Mr. Poe does not allege in the amended complaint that he is an
employee of JTA, and thus his TPPA claim fails.
For the foregoing reasons, we affirm the judgment dismissing this case.
RICHARD H. DINKINS, JUDGE
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