Donald Davis v. Sumner County Sheriff, J. D. Vandercook ( 1998 )


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  •                                                     FILED
    July 31, 1998
    Cecil W. Crowson
    Appellate Court Clerk
    DONALD DAVIS,                )
    )          Sumner Circuit
    Plaintiff/Appellant,    )          No. 16897-C
    )
    VS.                          )
    )
    SUMNER COUNTY SHERIFF, J.D.  )          Appeal No.
    VANDERCOOK, BILLY TEMPLETON, )          01A01-9712-CV-00696
    ASSISTANT ADMINISTRATOR,     )
    SONYA TROUTT,                )
    )
    Defendants/Appellees.   )
    IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    APPEAL FROM THE CIRCUIT COURT OF SUMNER COUNTY
    AT GALLATIN, TENNESSEE
    HONORABLE THOMAS GOODALL, JUDGE
    Donald Davis, #117350
    D.C.I., Box 700
    Waupun, WI 53963
    PRO SE PLAINTIFF/APPELLANT
    William R. Wright, BPR 4024
    Leah May Dennen, BPR 12711
    Office of the Law Director
    Sumner County Administration Building
    355 North Belvedere Drive, Room 208
    Gallatin, Tennessee 37066
    ATTORNEYS FOR DEFENDANTS/APPELLEES
    AFFIRMED AND REMANDED.
    HENRY F. TODD
    PRESIDING JUDGE, MIDDLE SECTION
    CONCURS:
    BEN H. CANTRELL, JUDGE
    WILLIAM C. KOCH, JR., JUDGE
    DONALD DAVIS,                )
    )                        Sumner Circuit
    Plaintiff/Appellant,    )                        No. 16897-C
    )
    VS.                          )
    )
    SUMNER COUNTY SHERIFF, J.D.  )                        Appeal No.
    VANDERCOOK, BILLY TEMPLETON, )                        01A01-9712-CV-00696
    ASSISTANT ADMINISTRATOR,     )
    SONYA TROUTT,                )
    )
    Defendants/Appellees.   )
    OPINION
    The captioned appellant is a prisoner in the punitive custody of the Tennessee
    Department of Correction. He sued the Sheriff of Sumner County and two of his employees for
    violation of 42 USC § 1983 by violating his civil rights by failing to provide him with a “no pork
    diet” upon his demand therefor.
    The defendants moved to dismiss for failure to state a claim for which relief can be
    granted. However, defendants filed affidavits which were considered by the Trial Judge and
    mentioned in his judgment dismissing plaintiff’s suit. Therefore the motion was properly treated
    as a motion for summary judgment, and the judgment may be reviewed as a summary judgment.
    The affidavit of the Jail Administrator states:
    1.        I am the Jail Administrator of the Sumner
    County Jail.
    2.      When Plaintiff Donald Davis entered the Jail
    he did not request a special diet.
    3.     When we became aware of this, we notified
    the kitchen and have attempted to provide him alternate food
    sources.
    -2-
    4.      On several occasions, Mr. Davis has turned
    down these alternative food sources as he deemed them not as
    savory as the pork dishes being served.
    5.      Nevertheless, we will continue to offer him no-
    pork substitutes when pork is offered in the diet.
    The counter affidavit of the plaintiff is composed entirely of argument, including the
    following:
    3.     The defendants have to date, failed to address
    the meals that we’re served on the dates in question of
    complaint, 11/96 to 4/97. Meals being served from 5/97 to
    present may be nutritionally adequate, plaintiff is no longer
    there, therefore can not argue these meals of dates in question
    within complaint.
    Plaintiff’s affidavit does not deny the unequivocal affidavit of the administrator that, a
    non-pork diet was furnished to plaintiff from the time of his request for the duration of his
    incarceration.
    When a party moving for summary judgment has filed evidence which, if uncontradicted,
    requires a summary judgment as a matter of law, the moving party is entitled to summary
    judgment unless the opposing party offers evidence contradicting that of the moving party.
    TRCP Rule 56. Roberts v. Roberts, Tenn. App. 1992, 
    845 S.W.2d 225
    .
    In the present case, the plaintiff filed no evidence to contradict that offered by defendants.
    Therefore, the entry of summary judgment of dismissal was correct.
    The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against
    appellant. The cause is remanded to the Trial Court for appropriate further proceedings.
    AFFIRMED AND REMANDED.
    _________________________________
    HENRY F. TODD
    PRESIDING JUDGE, MIDDLE SECTION
    CONCUR:
    -3-
    ____________________________
    BEN H. CANTRELL, JUDGE
    ____________________________
    WILLIAM C. KOCH, JR., JUDGE
    -4-
    

Document Info

Docket Number: 01A01-9712-CV-00696

Filed Date: 7/31/1998

Precedential Status: Precedential

Modified Date: 10/30/2014